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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, ROGER ANCLAM, EMILY BUNTING, MARY LYNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE, and DONALD WINTER,
Plaintiffs,
v.
GERALD C. NICHOL, THOMAS BARLAND, JOHN FRANKE, HAROLD V. FROEHLICH, KEVIN J. KENNEDY, ELSA LAMELAS, and TIMOTHY VOCKE,
Defendants.

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No.

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Three Judge Panel Requested

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28 U.S.C. 2284(a)

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NOW COME Plaintiffs William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, and Donald Winter, by their undersigned attorneys, and complain of Defendants Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas, Kevin J. Kennedy, and Timothy Vocke, not personally, but solely in their official capacities as members of the Wisconsin Government Accountability Board, as follows:
INTRODUCTION 1. Plaintiffs seek both a declaratory judgment that the Wisconsin State Assembly district plan adopted in 2012 by Wisconsin Act 43 (the “Current Plan”) violates the First and Fourteenth Amendments of the United States Constitution and an order permanently enjoining the implementation of the Current Plan in the 2016 election. As explained in greater detail below, the Current Plan is, by any measure, one of the worst partisan gerrymanders in modern
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American history. In the first election in which it was in force in 2012, the Current Plan enabled Republican candidates to win sixty of the Assembly’s ninety-nine seats even though Democratic candidates won a majority of the statewide Assembly vote. The evidence is overwhelming that the Current Plan was adopted to achieve precisely that result: indeed, before submitting the map for approval, the Republican leadership retained an expert (at State expense) who predicted the partisan performance of each proposed district—as it turned out, with remarkable accuracy.
2. This kind of partisan gerrymandering is both unconstitutional and profoundly undemocratic. It is unconstitutional because it treats voters unequally, diluting their voting power based on their political beliefs, in violation of the Fourteenth Amendment’s guarantee of equal protection, and because it unreasonably burdens their First Amendment rights of association and free speech. Extreme partisan gerrymandering is also contrary to core democratic values because it enables a political party to win more legislative districts—and thus more legislative power—than is warranted by that party’s popular support. By distorting the relationship between votes and assembly seats, it causes policies to be enacted that do not accurately reflect the public will. In the end, a political minority is able to rule the majority and to entrench itself in power by periodically manipulating election boundaries.
3. Partisan gerrymandering has increased throughout the United States in recent years as a result of both a rising tide of partisanship and greater technological sophistication, which enables maps to be drawn in ways that are likely to enable the party in power to remain in power even if it no longer represents the views of the majority of voters. This nationwide trend threatens a “‘core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, No. 13-1314 (U.S. June 29, 2015), slip op. at 35.
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4. The United States Supreme Court has recognized that partisan gerrymandering can be unconstitutional. Nevertheless, a constitutional challenge has yet to succeed on that ground because plaintiffs have been unable to offer a workable standard to distinguish between permissible political line-drawing and unconstitutional partisan gerrymandering. In this case, plaintiffs propose a new test that is workable, based on the concept of partisan symmetry—the idea that a district plan should treat the major parties symmetrically with respect to the conversion of votes to seats and that neither party should have a systematic advantage in how efficiently its popular support translates into legislative power.
5. One way to measure a district plan’s performance in terms of partisan symmetry is to determine whether there is an “efficiency gap” between the performances of the two major parties and, if so, to compare the magnitude of that gap to comparable district plans in the modern era nationwide. The efficiency gap captures in a single number all of a district plan’s cracking and packing—the two fundamental ways in which partisan gerrymanders are constructed. Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins. Both cracking and packing result in “wasted” votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needed to prevail (in the case of packing). The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.
6. When the efficiency gap is relatively small and roughly equivalent to the efficiency gaps that have traditionally existed, the map should not be deemed unconstitutional. In such cases, there may be no intent to treat voters unequally; in any event, the effects of any
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gerrymandering are likely to be redressable through the political process. But where the efficiency gap is large and much greater than the historical norm, there should be a presumption of unconstitutionality. In such a case, an intent to systematically disadvantage voters based on their political beliefs can be inferred from the severity of the gerrymander alone. And because such severe gerrymanders are likely to be extremely durable as well, it is unlikely that the disadvantaged party’s adherents will be able to protect themselves through the political process. Where partisan gerrymandering is extreme, the process itself is broken: current legislators have no incentive to alter it, and adherents of the disadvantaged party are unable to do so because their votes have been unfairly diluted.
7. Wisconsin’s Current Plan is presumptively unconstitutional under this analysis. In the 2012 election, the Current Plan resulted in an efficiency gap of roughly 13% in favor of Republican candidates. Between 1972 and 2014, fewer than four percent of all state house plans in the country benefited a party to that extent. In the 2014 election, the efficiency gap remained extremely high at 10%. Between 1972 and 2010, not a single plan anywhere in the United States had an efficiency gap as high as the Current Plan in the first two elections after redistricting. A district plan this lopsided is also highly unlikely ever to become neutral over its ten-year lifespan. Indeed, we can predict with nearly 100% confidence that, absent this Court’s intervention, Wisconsin’s Current Plan will continue to unfairly favor Republican voters and candidates—and unfairly disadvantage Democratic voters and candidates—throughout the remainder of the decade.
8. There are three additional facts that reinforce the conclusion that the Current Plan is unconstitutional. First, the Current Plan was not the result of an ordinary political process, where a bill is formulated through a give-and-take between political adversaries and subject to
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open debate. Instead, it was drawn up in secret by the Legislature’s Republican leadership, without consultation with Democratic leaders or rank-and-file members of either party, with the purpose and intent of altering what was already a favorable map to maximize the Republican Party’s partisan advantage. Then the proposal was rammed through the Assembly, without any opportunity for real debate.
9. Second, the Current Plan is also an outlier by another measure of partisan symmetry—partisan bias. Partisan bias is the difference in the share of seats that each party would win if they tied statewide, each receiving 50% of the vote. In 2012, there was a 13% bias in favor of Republicans; in a tied election, Republicans would have won 63% of the Assembly seats, with Democrats winning only 37%. In 2014, there was a 12% bias in favor of Republicans.
10. Third, the Current Plan’s extreme partisan skew was entirely unnecessary. Plaintiffs have designed a Demonstration Plan that complies at least as well as the Current Plan with every legal requirement—equal population, the Voting Rights Act, compactness, and respect for political subdivisions—but that is almost perfectly balanced in its partisan consequences. Thus, defendants cannot salvage the Current Plan on the theory that adherence to redistricting criteria or the State’s underlying political geography made an unfair plan unavoidable.
11. To be clear, plaintiffs do not seek to replace a pro-Republican gerrymander with a plan that is gerrymandered to be pro-Democratic. Rather, plaintiffs seek as a remedy the creation of a neutral plan that is not gerrymandered to give either side an unfair partisan advantage.
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JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 2284. It also has jurisdiction under 28 U.S.C. §§ 2201 and 2202, the Declaratory Judgments Act, to grant the declaratory relief requested. 13. Pursuant to 28 U.S.C. § 2284(a), a three-judge panel should be convened to hear this case. 14. Venue is proper in this judicial district under 28 U.S.C. § 1391(b). At least one of the Defendants resides in the Western District of Wisconsin. In addition, at least six of the plaintiffs reside and vote in this judicial district.
PARTIES 15. Plaintiffs are qualified, registered voters in the State of Wisconsin, who reside in various counties and legislative districts. Plaintiffs are all supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates. Together with other Democratic voters, plaintiffs have been harmed by the Current Plan’s unlawful partisan gerrymandering because it treats Democrats unequally based on their political beliefs and impermissibly burdens their First Amendment right of association. Some of the plaintiffs have been packed into districts with other Democratic voters, while others live in districts that have been cracked by the Current Plan to disadvantage Democratic candidates in close races. Either way, the purpose and effect of the Current Plan is to dilute their voting strength because of their political affiliations. 16. Regardless of where they reside in Wisconsin and whether they themselves reside in a district that has been packed or cracked, all of the plaintiffs have been harmed by the manipulation of district boundaries in the Current Plan to dilute Democratic voting strength. As
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a result of the statewide partisan gerrymandering, Democrats do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly. As a result, the electoral influence of plaintiffs and other Democratic voters statewide has been unfairly, disproportionately, and undemocratically reduced.
17. Plaintiff William Whitford, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 76th Assembly District in Madison in Dane County, Wisconsin.
18. Plaintiff Roger Anclam, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 31st Assembly District in Beloit in Rock County, Wisconsin.
19. Plaintiff Emily Bunting, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 49th Assembly District in Richland County, Wisconsin.
20. Plaintiff Mary Lynne Donohue, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 26th Assembly District in Sheboygan in Sheboygan County, Wisconsin. In addition to the injury suffered by all Democrats in Wisconsin, Ms. Donohue was harmed when the City of Sheboygan was split into Districts 26 and 27 and District 26 was cracked and converted from a Democratic to a Republican district. See infra ¶¶ 63-65.
21. Plaintiff Helen Harris, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 22nd Assembly District in Milwaukee, in Milwaukee County, Wisconsin.
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22. Plaintiff Wayne Jensen, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 63rd Assembly District in Rochester, in Racine County, Wisconsin.
23. Plaintiff Wendy Sue Johnson, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 91st Assembly District in Eau Claire, in Eau Claire County, Wisconsin. In addition to the injury suffered by all Democrats in Wisconsin, Ms. Johnson was harmed when Democratic voters were packed into District 91, wasting their votes and diluting the influence of Ms. Johnson’s vote, as part of a gerrymander that reduced the number of Democratic seats in her region. See infra ¶¶ 69-71.
24. Plaintiff Janet Mitchell, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 66th Assembly District in Racine, in Racine County, Wisconsin. In addition to the injury suffered by all Democrats in Wisconsin, Ms. Mitchell was harmed when Democratic voters were packed into District 66, wasting their votes and diluting the influence of Ms. Mitchell’s vote, as part of a gerrymander that reduced the number of Democratic seats in her region. See infra ¶¶ 66-68.
25. Plaintiffs James and Allison Seaton, citizens of the United States and of the State of Wisconsin, are residents and registered voters in the 42nd Assembly District in Lodi, in Columbia County, Wisconsin.
26. Plaintiff Jerome Wallace, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 23rd Assembly District, in Fox Point, in Milwaukee County, Wisconsin. In addition to the injury suffered by all Democrats in Wisconsin, Mr. Wallace was harmed when Democrats in District 22 were cracked so that his previously Democratic district is now a Republican district. See infra ¶¶ 60-62.
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27. Plaintiff Don Winter, a citizen of the United States and of the State of Wisconsin, is a resident and registered voter in the 55th Assembly District in Neenah, in Winnebago County, Wisconsin.
28. Defendant Gerald C. Nichol is the Chair of the Wisconsin Government Accountability Board (“G.A.B.”) and is named solely in his official capacity as such. The G.A.B. is a state agency under Wis. Stat. § 15.60, which has “general authority” over and “responsibility for the administration of . . . [the State’s] laws relating to elections and election campaigns,” Wis. Stat. § 5.05(1), including the election every two years of Wisconsin’s representatives in the Assembly.
29. Defendants Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas, and Timothy Vocke are all members of the G.A.B. and are named solely in their official capacities as such.
30. Defendant Kevin J. Kennedy is the Director and General Counsel of the G.A.B. and is named solely in his official capacity as such.
BACKGROUND The Current Plan Was Intended To Discriminate Against Democrats 31. The Current Plan was drafted and enacted with the specific intent to maximize the electoral advantage of Republicans and harm Democrats to the greatest possible extent, by packing and cracking Democratic voters and thus wasting as many Democratic votes as possible. Indeed, after a trial in prior litigation, a three-judge court characterized claims by the Current Plan’s drafters that they had not been influenced by partisan factors as “almost laughable” and concluded that “partisan motivation. . .clearly lay behind Act 43.” Baldus v. Wisconsin Government Accountability Board, 849 F.Supp.2d 840, 851 (E.D. Wis. 2012).
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32. The Current Plan was drafted via a secret process run solely by Republicans in the State Assembly and their agents, entirely excluding from participation all Democratic members of the Assembly as well as the public, and preventing public knowledge of and deliberation about the parameters of the Plan.
33. In January 2011, Scott Fitzgerald, Republican member of the Wisconsin State Senate and Wisconsin Senate Majority Leader, and Jeff Fitzgerald, Republican member of the Wisconsin State Assembly and Speaker of the Assembly, hired attorney Eric McLeod (“McLeod”) and the law firm of Michael, Best & Friedrich, LLP (“Michael Best”), ostensibly to represent the entire Wisconsin State Senate and Wisconsin State Assembly in connection with the reapportionment of the state legislative districts after the 2010 Census. In fact, McLeod and Michael Best were retained to assist the Republican leadership in the Legislature in designing a pro-Republican partisan gerrymander.
34. To accomplish this goal, McLeod and Michael Best supervised the work of the legislative aide to the Republican Speaker of the Assembly, Adam Foltz, and the legislative aide to the Republican Majority Leader of the Senate, Tad Ottman, in planning, drafting, negotiating, and gaining the favorable vote commitments of a majority of Republican legislators sufficient to obtain passage of the Current Plan through Wisconsin Act 43.
35. In creating the Current Plan, McLeod, Michael Best, Foltz, and Ottman used past election results to measure the partisanship of the electorate and to design districts, through packing and cracking, that would maximize the number of districts that would elect a Republican and minimize the number of districts that would elect a Democrat. Thus, they intentionally diluted the electoral influence of Democrats, including that of plaintiffs, and discriminated against Democrats, including plaintiffs, because of their political views.
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36. McLeod, Michael Best, Foltz, and Ottman were assisted in their work by Dr. Ronald Keith Gaddie, a professor of political science at the University of Oklahoma. Dr. Gaddie created a model that analyzed the expected partisan performance of all of the districts established by Act 43. Dr. Gaddie’s model forecast that the Assembly plan would have a pro-Republican efficiency gap of 12%. When a common methodology is used to ensure an apples-to-apples comparison, this is almost exactly the efficiency gap that the Assembly plan actually exhibited in the 2012 election.
37. Preparation of the Current Plan was done in complete secrecy, excluding Democrats and the public from any part of the process. Indeed, even Republican state legislators were prevented from receiving any information that would allow public discussion or deliberation about the plan. All redistricting work was done in Michael Best’s office and the “map room” was located there. A formal written policy provided that only the Senate Majority Leader, the Speaker of the House and their aides Ottman and Foltz, and McLeod and legal staff designated by McLeod would have unlimited access to the map room.
38. The access policy provided for limited access by rank-and-file legislators: “Legislators will be allowed into the office for the sole purpose of looking at and discussing their district. They are only to be present when an All Access member is present. No statewide or regional printouts will be on display while they are present (with the exception of existing districts). They will be asked at each visit to sign an agreement that the meeting they are attending is confidential and they are not to discuss it.” But only Republican legislators were allowed even this limited access. After signing the secrecy agreements contemplated by the policy, Republican legislators were allowed to see only small portions of the map: how their own
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districts would be affected and details of the partisan performance of voters in their districts in the past, showing that they would be reliable Republican districts.
39. Under the direction and supervision of McLeod, Ottman met with 17 Republican members of the Wisconsin State Senate, identified in Ex. 4 hereto. Each of them signed a secrecy agreement entitled “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the plan that Michael Best had been hired to develop. The secrecy agreement said that McLeod had “instructed” Ottman to meet with certain members of the Senate to discuss the reapportionment process and characterized such conversations as privileged communications pursuant to the attorney-client and attorney work product privileges —even though the assertion of the privilege was a part of an elaborate “charade” designed “to cover up a process that should have been public from the outset.” Baldus v. Wisconsin Government Accountability Board, 843 F.Supp.2d 955, 958-61 (E.D. Wis. 2012).
40. Under the direction and supervision of McLeod, Foltz met with 58 Republican members of the Wisconsin State Assembly, identified in Ex. 4 hereto. Each of them signed the same secrecy agreement entitled “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the plan that Michael Best had been hired to develop, which also improperly described their conversations as privileged.
41. On July 11, 2011, the plan was introduced by the Committee on Senate Organization without any Democratic members of the Legislature having previously seen their districts or the plan as a whole. As noted above, all Republican members of the Legislature had previously seen their individual districts along with visual aids demonstrating the partisan performance of these districts, but had not seen the overall map.
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42. Act 43 was passed in extraordinarily rushed proceedings with little opportunity for input by the public. A public hearing was held on July 13, 2011. The bill was then passed by the Senate on July 19, 2011, and by the Assembly the next day on July 20, 2011. Act 43 was published on August 23, 2011.
43. McLeod and Michael Best were paid $431,000 in State taxpayer funds for their work on the plan, even though they worked solely for Republican leaders of the Legislature and for the benefit of Republicans, and even though they provided no services to Democrats, entirely excluded them from the process, and concealed their work from the public, preventing any public deliberation about the plan.
The Current Plan Has The Effect of Discriminating Against Democrats The Efficiency Gap Reliably Measures Partisan Gerrymandering
44. The Supreme Court has unanimously agreed that partisan gerrymandering can rise to the level of a constitutional violation. See Vieth v. Jubelirer, 541 U.S. 267, 293 (2004) (“[A]n excessive injection of politics is unlawful”) (emphasis added). To date, though, partisan gerrymandering plaintiffs have failed to propose a judicially manageable standard for deciding what constitutes an “excessive” injection of politics into the redistricting process.
45. In the Court’s most recent gerrymandering case, LULAC v. Perry, 548 U.S. 399 (2006), a majority of the Justices expressed support for a test based on the concept of partisan symmetry. Partisan symmetry is a “require[ment] that the electoral system treat similarly-situated parties equally.” Id. at 466 (Stevens, J., concurring in part and dissenting in part). In other words, a map is symmetrical when it creates a level playing field, giving neither major party a systematic advantage over its opponent in the conversion of electoral votes into legislative seats.
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46. In LULAC, the Court considered one particular measure of partisan symmetry, called partisan bias. As described above, partisan bias refers to the divergence in the share of seats that each party would win given the same share (typically 50%) of the statewide vote. See id. at 419-20 (opinion of Kennedy, J.); id. at 466 (Stevens, J., concurring in part and dissenting in part).
47. Partisan bias is not the only measure of partisan symmetry. In the last few years, political scientists and legal academics have developed a new symmetry metric, called the efficiency gap, which improves on partisan bias in several respects. See Eric M. McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Legis Stud. Q. 55 (2014); Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 101 (2015); Expert Report of Prof. Kenneth R. Mayer (July 3, 2015) (“Mayer Report”), attached hereto as Ex. 2; Expert Report of Prof. Simon D. Jackman (July 7, 2015) (“Jackman Report”) attached hereto as Ex. 3.
48. The efficiency gap is rooted in the insight that, in a legal regime in which each district must have an approximately equal population, there are only two ways to implement a partisan gerrymander. First, a party’s supporters can be cracked among a large number of districts so that they fall somewhat short of a majority in each one. These voters’ preferred candidates then predictably lose each race. Second, a party’s backers can be packed into a small number of districts in which they make up enormous majorities. These voters’ preferred candidates then prevail by overwhelming margins. All partisan gerrymandering is accomplished through cracking and packing, which enables the party controlling the map to manipulate vote margins in its favor.
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49. Both cracking and packing produce so-called “wasted” votes—that is, votes that do not directly contribute to a candidate’s election. When voters are cracked, their votes are wasted because they are cast for losing candidates. Similarly, when voters are packed, their votes are wasted to the extent they exceed the 50%-plus-one threshold required for victory (in a twocandidate race). Partisan gerrymandering also can be understood as the manipulation of wasted votes in favor of the gerrymandering party, so that it wastes fewer votes than its adversary.
50. The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. Suppose, for example, that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties’ respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.
51. The efficiency gap is not based on the principle that parties have a right to proportional representation based on their share of the statewide vote, nor does it measure the deviation from seat-vote proportionality. Instead, by aggregating all of a plan’s cracking and packing into a single number, the efficiency gap measures a party’s undeserved seat share: the proportion of seats a party receives that it would not have received under a balanced plan in which both sides had approximately equal wasted votes. In the above example, for instance, the 22% efficiency gap in favor of Party A means that it won 22% more seats—in this example, 1 more seat out of 5—than it would have under a balanced plan.
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52. Over the 1972-2014 period—since the end of the reapportionment revolution of the 1960s— the distribution of state house plans’ efficiency gaps has been normal and has had a median of almost exactly zero. See Jackman Report at 61; Stephanopoulos & McGhee, supra, at 140-42. This indicates that neither party has enjoyed an overall advantage in state legislative redistricting during the modern era.
53. However, recently the average absolute efficiency gap (i.e., the mean of the absolute values of all plans’ efficiency gaps in a given year) has increased sharply. This metric stayed roughly constant from 1972 to 2010. But in the current cycle, fueled by rising partisanship and greater technological sophistication, it spiked to the highest level recorded in the modern era: over 6% for state house plans. See Jackman Report at 47; Stephanopoulos & McGhee, supra, at 142-45. This means that the severity of today’s partisan gerrymandering is historically unprecedented—as is the need for judicial intervention. Wisconsin’s Current Plan Is an Outlier
54. Between 1972 and the present, the efficiency gaps of Wisconsin’s Assembly plans became steadily larger and more pro-Republican. The Current Plan represents the culmination of this trend, exhibiting the largest and most pro-Republican efficiency gap ever recorded in modern Wisconsin history. In the 1970s, the Assembly plan had an average efficiency gap close to zero. In both the 1980s and the 1990s, it had an average pro-Republican gap of 2%. The Republican advantage deepened in the 2000s to an average gap of 8%. And it then surged, thanks to the Current Plan, to an average gap of 11% in 2012 and 2014. See Jackman Report at 34; Stephanopoulos & McGhee, supra, at 154-56.
55. More specifically, using the same methodology as for all other states, the Current Plan produced a pro-Republican efficiency gap of 13% in 2012 and 10% in 2014. The 2012
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figure represents the 28th-worst score in modern American history (out of nearly 800 total plans), placing the Current Plan in the worst 4% of this distribution, more than two standard deviations from the mean. Based on this historical data, there is close to a zero percent chance that the Current Plan’s efficiency gap will ever switch signs and favor the Democrats during the remainder of the decade. Furthermore, prior to the current cycle, not a single plan in the country had efficiency gaps as high as the Current Plan’s in the first two elections after redistricting. See Jackman Report at 63.
56. Using a more detailed methodology available only for Wisconsin, the Current Plan produced a pro-Republican efficiency gap of 12% in 2012. This is a figure nearly identical to the one calculated using the national data. Using the Wisconsin-specific methodology as well as data compiled prior to 2012 by Dr. Gaddie, the expert retained by the Legislature’s Republican leadership to assist them in drafting the Current Plan, that Plan was forecast to produce an efficiency gap of 12%. This figure also is nearly identical, and shows that the Current Plan performed precisely as its authors hoped and expected. See Mayer Report at 46.
57. This extraordinary level of partisan unfairness was achieved through the rampant cracking and packing of Wisconsin’s Democratic voters, which resulted in their votes being disproportionately wasted. The Mayer Report shows that Democratic voters were cracked so that Republican candidates were far more likely to prevail in close races (where the winner had 60% or less of the vote): Republicans were likely to win 42 such districts, while Democrats would win only 17.1 Democrats were also packed into a number of districts where they would win overwhelmingly (by getting 80% or more of the vote): there were eight districts where
1 In making this analysis, the Mayer Report used 2012 election results and further assumed that all districts had been contested and no incumbents had run. These are both standard assumptions made by political scientists to determine a plan’s underlying partisanship.
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Democrats would win by this margin, compared to zero districts where Republicans would win such a lopsided victory. Thus, through gerrymandering, Republican votes were used more efficiently than Democratic votes to elect representatives, producing an undemocratic result that does not accurately reflect the preferences of the Wisconsin electorate. See Mayer Report at 3841.
58. The forecasts of Dr. Gaddie, the Republican consultant, prior to the 2012 election confirm that the Current Plan was expected and intended to crack and pack Wisconsin’s Democratic voters to this extent. Dr. Gaddie predicted that Republicans would win 46 Assembly districts by a margin smaller than 60%-40%, compared to just 20 such victories for Democrats. He also predicted that Democrats would prevail in seven districts by a margin greater than 80%20%, compared to zero such wins for Republicans. See Mayer Report at 38-41. These figures are nearly identical to plaintiffs’ estimates, and further demonstrate that the Current Plan was intended to disadvantage Democrats and waste Democratic votes to the maximum extent possible. Examples of Cracking and Packing in the Current Plan
59. These plan-level statistics are the product of innumerable local cracking and packing decisions. Across Wisconsin, the Current Plan systematically alters prior district configurations to waste larger numbers of Democratic votes and smaller numbers of Republican votes. The following regional examples (depicted in map form in Exhibit 1 hereto) show how the Current Plan deliberately allocates Democratic voters less efficiently and Republican voters more efficiently. These are only illustrative examples; they do not show all of the ways in which Wisconsin’s current pro-Republican gerrymander was achieved. In addition, the examples focus on: (1) the 2012 election because it was the first one held after this cycle’s redistricting; (2) the
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2008 election because it was the most comparable prior election, featuring a similar share of the statewide Assembly vote for each party (53.9% Democratic in 2008, 51.4% Democratic in 2012) and also coinciding with a presidential election; and (3) Plaintiffs’ Demonstration Plan, because it reveals the fair results that could have been, but were not, attained in 2012.
Milwaukee, Ozaukee, Washington, and Waukesha Counties: 60. Under the prior Assembly plan that was in force from 2002-2010 (the “Prior Plan”), District 22 included part of northeastern Milwaukee County; District 23 included part of northern Milwaukee County (home to Plaintiff Wallace) and part of southern Ozaukee County; and District 24 included part of Washington and Waukesha Counties. In the 2008 election, a Democratic candidate won District 22, and Republican candidates won Districts 23 and 24. Under the Demonstration Plan, a Democratic candidate would win District 22, and Republican candidates would win Districts 23 and 24. 61. As a result of the Current Plan, Democratic voters who were in the old District 22 were cracked into the new Districts 23 and 24. Due to these changes, Districts 22, 23, and 24 were won by Republican candidates in 2012. 62. The shift from one Democratic seat and two Republican seats in the Prior Plan and the Demonstration Plan in Milwaukee, Ozaukee, Washington, and Waukesha Counties, to zero Democratic seats and three Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap. This gerrymandering and its results are shown in the maps attached hereto as Ex. 1. Calumet, Fond du Lac, Manitowoc and Sheboygan Counties: 63. Under the Prior Plan, District 26 centered on the City of Sheboygan in the central eastern part of Wisconsin (home to Plaintiff Donohue) and District 27 consisted of the northern
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part of Sheboygan County as well as parts of Fond du Lac, Calumet, and Manitowoc Counties. In the 2008 election, a Democratic candidate won District 26 and a Republican candidate won District 27. Under the Demonstration Plan, a Democratic candidate would win District 26, and a Republican candidate would win District 27.
64. As a result of the Current Plan, Democratic voters who were in District 26 were cracked so that roughly half of that district was distributed to District 27 and additional voters from south of Sheboygan County were added to District 26. Due to these changes, Districts 26 and 27 were won by Republican candidates in 2012.
65. The shift from one Democratic seat and one Republican seat in the Prior Plan and the Demonstration Plan in Sheboygan County and southern Fond du Lac, Manitowoc and Calumet Counties, to zero Democratic seats and two Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap. This gerrymandering and its results are shown in the maps attached hereto as Ex. 1.
Racine and Kenosha Counties: 66. Under the Prior Plan, Districts 61, 62, 63, 64, 65, and 66 were almost entirely within Racine and Kenosha Counties in the southeastern edge of Wisconsin (the City of Racine is home to Plaintiff Mitchell). Districts 61 and 62 centered on the City of Racine, with District 63 covering the western side of Racine County. Districts 64 and 65 centered on the City of Kenosha, with District 66 covering the western edge of Kenosha County. In the 2008 election, Democratic candidates won Districts 61, 62, 64, and 65, while Republican candidates won Districts 63 and 66. Under the Demonstration Plan, Democratic candidates would win Districts 62, 63, 64, and 66, while Republican candidates would win Districts 61 and 65.
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67. As a result of the Current Plan, Democratic voters who were in the old Districts 61 and 62 were packed into the new District 66, thus wasting more Democratic votes in the region. Due to these changes, Districts 64, 65, and 66 were won by Democratic candidates in 2012, while Districts 61, 62, and 63 were won by Republican candidates.
68. The shift from four Democratic seats and two Republican seats in the Prior Plan and the Demonstration Plan in Racine and Kenosha Counties, to three Democratic seats and three Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap. This gerrymandering and its results are shown in the maps attached hereto as Ex. 1.
Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties: 69. Under the Prior Plan, most of seven Districts (67, 68, 91, 92, 93, 94, and 95) were spread across Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties in northwestern Wisconsin (Eau Claire is home to Plaintiff Johnson). In the 2008 election, Democratic candidates won five of the seven Districts (68, 91, 92, 93, and 95), and Republicans won two of them (67 and 94). The district numbers in the Demonstration Plan are slightly different; instead of District 68, District 69 is in Eau Claire County. Under the Demonstration Plan, Democratic candidates would win six of seven Districts (67, 69, 91, 92, 94, and 95) and a Republican candidate would win one of them (93). 70. As a result of the Current Plan, Democratic voters who were in the old District 68 were packed into the new District 91, and Democrats in the rest of old District 68 as well as old Districts 91 and 93 were cracked into the new Districts 68, 92, and 93. Due to these changes, Democratic candidates won only four of the seven districts in 2012 (91, 92, 94, and 95), and Republican candidates won three of them (67, 68, and 93).
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71. The shift from five or six Democratic seats, in the Prior Plan and Demonstration Plan respectively, and two or one Republican seats in the Prior Plan and Demonstration Plan respectively, to four Democratic seats and three Republican seats in the Current Plan, in Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties, contributed to Wisconsin’s current pro-Republican efficiency gap. This gerrymandering and its results are shown in the maps attached hereto as Ex. 1.
Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties: 72. Under the Prior Plan, most of eight Districts (42, 47, 69, 70, 71, 72, 85, and 86) were spread across Adams, Columbia, Marathon, Marquette, Portage, and Wood counties in central Wisconsin (Columbia County is home to Plaintiffs Allison and James Seaton). In the 2008 election, Democratic candidates won five of the eight Districts (42, 70, 71, 72, and 85), and Republicans won three Districts (47, 69, and 86). In the Demonstration Plan the district numbers are different (5, 40, 41, 42, 71, 72, 86, and 87), but of these eight Districts, Democratic candidates would win five (71, 86, 40, 41, and 42), and Republican candidates would win three (5, 72, and 87). 73. As a result of the Current Plan, Democratic voters who were in the old Districts 42, 70, and 72 were cracked, and the new Districts 41, 42, 69, 70, 71, 72, 85, and 86 were created in areas of Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties. Due to these changes, Democratic candidates won only three of the eight Districts (70, 71, and 85) in 2012, and Republican candidates won five of them (41, 42, 69, 72, and 86). 74. The shift from five Democratic seats and three Republican seats in the Prior Plan and the Demonstration Plan in Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties, to three Democratic seats and five Republican seats in the Current Plan, contributed to
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Wisconsin’s current pro-Republican efficiency gap. This gerrymandering and its results are shown in the maps attached hereto as Ex. 1.
Brown and Manitowoc Counties: 75. Under the Prior Plan, Brown and Manitowoc Counties were split to include parts of Districts 1, 2, 4, 5, 25, 88, 89, and 90 in the Green Bay area of Wisconsin. In the 2008 election, Democratic candidates won Districts 2, 5, 25, and 88, and Republican candidates won Districts 1, 4, 89, and 90. Under the Demonstration Plan, Brown and Manitowoc Counties would include Districts 1, 2, 3, 25, 26, 88, 89, and 90. Under the Demonstration Plan, Democrats would win Districts 2 and 88, and Republicans would win the remaining six districts. 76. As a result of the Current Plan, Democratic voters who were in the old Districts 2, 5 and 25 were cracked into the new Districts 2, 5, 25, and 88. Due to these changes, seven of the eight districts in the Brown and Manitowoc County area (1, 2, 4, 5, 25, 88, and 89) were won by Republican candidates in 2012, and one District (90) was won by a Democratic candidate in 2012. 77. The shift from four or two Democratic seats in the Prior Plan and the Demonstration Plan, respectively, and four or six Republican seats in the Prior Plan and the Demonstration Plan, respectively, to one Democratic seat and seven Republican seats in the Current Plan, in Brown and Manitowoc Counties, contributed to Wisconsin’s current proRepublican efficiency gap. This gerrymandering and its results are shown in the maps attached hereto as Ex.1. Wisconsin Does Not Need to Have a Gerrymandered Plan 78. Not only did the Current Plan exhibit extremely large efficiency gaps in 2012 and 2014, but this poor performance was entirely unnecessary and served no legitimate purpose. It
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would have been possible for Wisconsin to enact an Assembly plan that treated both parties symmetrically and did not disproportionately waste Democratic votes. To prove this point, plaintiffs’ expert has designed a Demonstration Plan that would have had an efficiency gap of just 2% in 2012 (assuming all contested districts and no incumbents). See Mayer Report at 46. This far better score is attributable to plaintiffs’ efforts not to crack and pack Democratic voters, and instead to enable both parties to convert their popular support into legislative seats with equal ease.
79. Plaintiffs’ Demonstration Plan performs at least as well as the Current Plan on every other relevant metric. Both plans have total population deviations of less than 1%—far below the courts’ 10% threshold for presumptive constitutionality. Both plans have six African American opportunity districts and one Hispanic opportunity district, and so are identical for Voting Rights Act purposes. The Demonstration Plan splits one fewer municipal boundary than the Current Plan (119 versus 120), and so is superior in that regard. And the Demonstration Plan’s districts are substantially more compact than the Current Plan’s (average compactness of 0.41 versus 0.28). See Mayer Report at 37.
80. The Demonstration Plan proves that the Current Plan’s extreme pro-Republican tilt cannot be blamed on either an effort to comply with legitimate redistricting criteria or Wisconsin’s underlying political geography. Both of those factors were perfectly compatible with a neutral map.
COUNT I – FOURTEENTH AMENDMENT VIOLATION 81. Plaintiffs incorporate and re-allege paragraphs 1-80 of this Complaint as paragraphs 1-80 of this Count I.
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82. The Current Plan is a partisan gerrymander so extreme that it violates Plaintiffs’ Fourteenth Amendment right to equal protection of the laws. The Current Plan intentionally and severely packs and cracks Democratic voters, thus disproportionately wasting their votes, even though a neutral map could have been drawn instead. Accordingly, Wisconsin’s Act 43 deprives plaintiffs of their civil rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1988.
83. The efficiency gap provides a workable test to identify unconstitutional partisan gerrymandering similar to the two-part approach applied to state legislative reapportionment claims. In a reapportionment challenge, the first issue is whether a district plan’s total population deviation exceeds 10%. If so, the plan is presumptively unconstitutional, and if not, it is presumptively valid. The second issue, which is reached only if the total population deviation is greater than 10%, is whether the malapportionment is necessary to achieve a legitimate state goal. The state bears the burden at this stage of rebutting the presumption of unconstitutionality. See Voinovich v. Quilter, 507 U.S. 146, 161-62 (1993); Brown v. Thomson, 462 U.S. 835, 842-43 (1983); Connor v. Finch, 431 U.S. 407, 418 (1977).
84. The same two-part approach should be applied to partisan gerrymandering claims, only with the efficiency gap substituted for total population deviation. The first step in the analysis is whether a plan’s efficiency gap exceeds a certain numerical threshold. If so, the plan is presumptively unconstitutional, and if not, it is presumptively valid. The second step, which is reached only if the efficiency gap is sufficiently large, is whether the plan’s severe partisan unfairness is the necessary result of a legitimate state policy, or inevitable given the state’s underlying political geography. The state would bear the burden at this stage of rebutting the presumption of unconstitutionality.
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85. The Current Plan is plainly unlawful under this two-part test. First, it was forecast to produce, and then did produce, an efficiency gap of approximately 13% in the 2012 election. This is an extraordinarily high level of partisan unfairness, more than two standard deviations from the mean: as noted above, the 2012 figure represents the 28th-worst score in modern American history (out of nearly 800 total plans), placing the Current Plan in the worst 4% of this distribution. This is also not a temporary or transient gerrymander. The Current Plan’s efficiency gap means that there is close to a zero percent chance that the Plan will ever favor Democrats during its lifespan. See Jackman Report at 60. Given its severity and predicted durability, the Current Plan’s efficiency gap far exceeds any plausible threshold for presumptive unconstitutionality.
86. Indeed, even a 7% efficiency gap should be presumptively unconstitutional. A 7% efficiency gap is at the edges of the overall distribution of all state house plans in the modern era, making it indicative of uncommonly severe gerrymandering. See Jackman Report at 61. Historical analysis shows that with a 7% efficiency gap, the gerrymandering is also likely to be unusually durable—over its lifespan, a plan with an efficiency gap of that magnitude is unlikely ever to favor the opposing party. See Jackman Report at 61. However, this Court need not decide at what point an efficiency gap is large enough to trigger a presumption of unconstitutionality. In the state legislative reapportionment context, the applicable cutoff (10%) emerged over a series of cases, in which extreme population deviations (of 34%, then 26%, then 20%) were struck down and deviations of 8% and 10% were upheld before the 10% threshold was adopted. Here too the Current Plan’s extreme efficiency gap should be deemed presumptively unconstitutional, without the need to decide what the cut-off should be.
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87. Second, the State cannot rebut the presumption that the Current Plan is unlawful. Plaintiffs’ Demonstration Plan would have had an efficiency gap of just 2% in 2012 while complying with all federal and state criteria at least as well as the Current Plan. See Mayer Report at 46. Accordingly, neither an attempt to achieve legitimate redistricting goals nor Wisconsin’s underlying political geography could have necessitated the Current Plan’s partisan imbalance.
88. In addition to its extreme efficiency gap, the Current Plan exhibits a severe partisan bias. The Current Plan produced a partisan bias of 13% in 2012 and 12% in 2014— scores that in and of themselves demonstrate the unconstitutional effects produced by the Current Plan.
89. Finally, there is no doubt that the Current Plan was specifically intended and indeed designed to benefit Republican candidates, and to disadvantage Democratic candidates, to the greatest possible extent. Thus, the Current Plan had both the purpose and effect of subordinating the adherents of one political party and entrenching a rival party in power, in violation of their right to equal protection under the law.
COUNT II—FIRST AMENDMENT VIOLATION 90. Plaintiffs incorporate and re-allege paragraphs 1-89 of this Complaint as paragraphs 1-89 of this Count II. 91. Plaintiffs and other Democratic voters in the state of Wisconsin have a First Amendment right to freely associate with each other without discrimination by the State based on that association; to participate in the political process and vote in favor of Democratic candidates without discrimination by the State because of the way they vote; and to express their political views without discrimination by the State because of the expression of those views or the content of their expression.
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92. Wisconsin Act 43 violates the First and Fourteenth Amendments because it intentionally uses voters’ partisan affiliation to affect the weight of their votes. By taking the actions described above, the drafters of the Current Plan deliberately discriminated against plaintiffs and other Democratic voters because they are Democrats and have voted for and will vote for Democratic candidates and because of the positions they have expressed and will take on public affairs — that is, because of their views and the content of their expression.
93. By excessively and unreasonably cracking and packing groups of Democratic voters to intentionally weaken their voting power, the State of Wisconsin discriminated against Democratic voters, including the plaintiffs, on the basis of their voting choices, their political views, and the content of their expression.
94. The unusual extent of the partisan gerrymandering in this case, as shown by the extremely high efficiency gap and the factors described above, indicates that the gerrymandering in this case is so high that the Current Plan denies to plaintiffs and other Democratic voters in Wisconsin their rights to free association and freedom of expression guaranteed by the First and Fourteenth Amendments.
95. For these reasons, and because Act 43 and the Current Plan have the purpose and effect of subjecting Democrats to disfavored treatment by reason of their views, Act 43 and the Current Plan are subject to strict scrutiny and cannot be upheld absent a compelling government interest, which is not present in this case.
96. Accordingly, Wisconsin’s Act 43 deprives plaintiffs of their civil rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1988.
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RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court: 97. Declare Wisconsin’s 99 State Assembly Districts, established by Act 43, unconstitutional and invalid, and the maintenance of these districts for any primary, general, special, or recall election a violation of plaintiffs’ constitutional rights; 98. Enjoin Defendants and the G.A.B.’s employees and agents, including the county clerks in each of Wisconsin’s 72 counties, from administering, preparing for, and in any way permitting the nomination or election of members of the State Assembly from the unconstitutional districts that now exist; 99. In the absence of a state law establishing a constitutional district plan for the Assembly districts, adopted by the Legislature and signed by the Governor in a timely fashion, establish a redistricting plan that meets the requirements of the U.S. Constitution and federal statutes and the Wisconsin Constitution and state statutes; 100. Award plaintiffs their reasonable attorneys’ fees, costs, and litigation expenses incurred in bringing this action; and 101. Grant such further relief as the Court deems just and proper.

Peter G. Earle Law Office of Peter G. Earle 839 North Jefferson Street Suite 300 Milwaukee, WI 53202 (414) 276-1076 peter@earle-law.com SBN 1012176

By: /s/ Peter G. Earle Peter G. Earle One of the attorneys for plaintiffs
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Michele Odorizzi Mayer Brown LLP 71 S. Wacker Dr. Chicago, IL 60606 (312) 701-7309 modorizzi@mayerbrown.com Nicholas O. Stephanopoulos Assistant Professor University of Chicago Law School 1111 E. 60th St., Suite 510 Chicago, IL 60637 (773) 702-4226 nsteph@uchicago.edu Paul Strauss Ruth Greenwood Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. 100 N. LaSalle St., Suite 600 Chicago, IL 60602 (312) 202-3649 pstrauss@clccrul.org rgreenwood@clccrul.org Applications for admission pro hac vice pending
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 Case: 3:15-cv-00421-bbc Document #: 43 Filed: 12/17/15 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WILLIAM WHITFORD, ROGER ANCLAM, EMILY BUNTING, MARY LYNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE and DONALD WINTER,
Plaintiffs,
v.

OPINION and ORDER 15-cv-421-bbc

GERALD C. NICHOL, THOMAS BARLAND, JOHN FRANKE, HAROLD V. FROEHLICH, KEVIN J. KENNEDY, ELSA LAMELAS and TIMOTHY VOCKE,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

In this civil action brought under 42 U.S.C. § 1983, plaintiffs are Wisconsin

residents and Democratic voters who are challenging the 2012 districting plan for the

Wisconsin Assembly on the ground that the plan is an example of “extreme partisan

gerrymandering.” Cpt. ¶ 2, dkt. #1. Plaintiffs contend that the plan violates the First and

Fourteenth Amendments to the United States Constitution because the plan “treats voters

unequally, diluting their voting power based on their political beliefs, in violation of the

Fourteenth Amendment's guarantee of equal protection” and “unreasonably burdens their

First Amendment rights of association and free speech.” Id.

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Defendants have filed a motion to dismiss, dkt. #24, which is ready for review. Although we believe that plaintiffs face significant challenges in prevailing on their claims, we conclude that plaintiffs’ complaint is sufficient to state a claim upon which relief may be granted. Accordingly, we are denying defendants’ motion to dismiss.
In their complaint, plaintiffs allege the following facts.
ALLEGATIONS OF FACT A. Parties
Plaintiffs William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, James Seaton, Allison Seaton, Jerome Wallace and Don Winter are United States citizens registered to vote in Wisconsin. They reside in various counties and legislative districts throughout the state. All of them are “supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates.” Cpt. ¶ 15, dkt. #1.
Defendant Gerald C. Nichol is the chair of the Wisconsin Government Accountability Board, which is responsible for the administration of Wisconsin’s laws relating to elections and election campaigns. Defendants Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas and Timothy Vocke are all members of the board. Defendant Kevin J. Kennedy is the director and general counsel for the board.
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B. Passage of Wisconsin Act 43 In January 2011, Scott Fitzgerald, Republican member of the Wisconsin State Senate and Senate Majority Leader, and Jeff Fitzgerald, Republican member of the Wisconsin State Assembly and Speaker of the Assembly, hired lawyer Eric McLeod and the law firm of Michael, Best & Friedrich, LLP, to assist with the reapportionment of the state legislative districts after the 2010 Census. The intent of the speaker and majority leader was to design a pro-Republican partisan gerrymander. To accomplish this goal, the firm supervised the work of legislative aides in planning, drafting and negotiating Wisconsin Act 43, which contains the 2012 Assembly districting plan. The law firm and the aides used past election results to measure the partisanship of the electorate and to design districts that would maximize the number of districts that would elect a Republican and minimize the number of districts that would elect a Democrat. This would be accomplished in two ways, by “cracking” or “packing.” Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins. Both cracking and packing result in “wasted” votes, that is, votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needed to prevail (in the case of packing). The firm and the aides received assistance from Dr. Ronald Keith Gaddie, a professor of political science at the University of Oklahoma. Gaddie created a model that analyzed the expected partisan performance of all of the districts established by Act 43. Gaddie’s
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model forecast that the Assembly plan would have a pro-Republican “efficiency gap” of 12 percent. The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.
All redistricting work was done in the firm’s office. Only the speaker, the majority leader, their aides, McLeod and legal staff designated by McLeod would have unlimited access to the plan while it was prepared. The access policy provided for limited access by other Republican legislators:
Legislators will be allowed into the office for the sole purpose of looking at and discussing their district. They are only to be present when an All Access member is present. No statewide or regional printouts will be on display while they are present (with the exception of existing districts). They will be asked at each visit to sign an agreement that the meeting they are attending is confidential and they are not to discuss it. Cpt. ¶ 38, dkt. #1. Democratic legislators were not granted any access to the office. They had no involvement in drafting the plan. After signing the secrecy agreements contemplated by the policy, Republican legislators were allowed to see only small portions of the map. This included information regarding how their own districts would be affected. Under the direction and supervision of McLeod, the aides met with Republican members of both houses. Each of the members signed a secrecy agreement entitled “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the plan. On July 11, 2011, the plan was introduced by the Committee on Senate Organization. At that time, no Democratic members of the legislature had seen their districts or the plan as a whole.
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On July 13, 2011, a public hearing was held. On July 19, 2011, the Senate passed the bill; on July 20, 2011, the Assembly passed it. On August 23, 2011, Act 43 was published.
The firm received $431,000 from public funds for their work on the plan.
C. Comparison of Wisconsin Act 43 to Other Plans From 1972 to 2014, the median efficiency gap for state house plans across the country was close to zero. This indicates that neither party has enjoyed an overall advantage in state legislative redistricting during the modern era. However, recently the average absolute efficiency gap, that is, the mean of the absolute values of all plans’ efficiency gaps in a given year, has increased sharply. This metric stayed roughly constant from 1972 to 2010, but in the current cycle, it spiked to the highest level recorded in the modern era, more than 6 percent for state house plans. Between 1972 and the present, the efficiency gaps of Wisconsin’s Assembly plans became steadily larger and more pro-Republican. The current plan represents the culmination of this trend, exhibiting the largest and most pro-Republican efficiency gap ever recorded in modern Wisconsin history. In the 1970s, the Assembly plan had an average efficiency gap close to zero. In both the 1980s and the 1990s, it had an average pro-Republican gap of 2 percent. The Republican advantage deepened in the 2000s to an average gap of 8 percent. Under the current plan, the average gap is 11 percent. A 7 percent efficiency gap is at the edges of the overall distribution of all state house
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plans in the modern era, making it indicative of uncommonly severe gerrymandering. Historical analysis shows that with a 7 percent efficiency gap, the gerrymandering is also likely to be unusually durable. Over its lifespan, a plan with an efficiency gap of that magnitude is unlikely ever to favor the opposing party.
In 2012, the current plan produced a pro-Republican efficiency gap of 13 percent. In 2014, it was 10 percent. The 2012 figure represents the 28th largest score in modern American history (out of nearly 800 total plans), placing the current plan in the most partisan 4 percent of this distribution, more than two standard deviations from the mean. This historical data suggests that there is close to a zero percent chance that the current plan’s efficiency gap will ever favor the Democrats during the remainder of the decade. Prior to the current cycle, not a single plan in the country had efficiency gaps as high as the current plan’s in the first two elections after redistricting.
Using a more detailed methodology available only for Wisconsin, the current plan produced a pro-Republican efficiency gap of 12 percent in 2012. This is a figure nearly identical to the one calculated using the national data. It is also the same efficiency gap predicted by Dr. Gaddie when the plan was being drafted.
Under the current plan, Republican candidates have been far more likely to prevail in close races. In addition, there were eight districts in which Democrats won with more than 80 percent of the vote. There were no districts in which Republicans won by such a wide margin. Across Wisconsin, the current plan systematically alters prior district configurations to waste larger numbers of Democratic votes and smaller numbers of
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Republican votes.
D. Possible Alternatives to Wisconsin Act 43 It would have been possible for Wisconsin to enact an Assembly plan that treated both parties symmetrically. Under a plan prepared by plaintiffs, the efficiency gap would have been 2 percent in 2012 (assuming that races were contested and that no races included an incumbent). This score is attributable to plaintiffs’ efforts not to crack and pack Democratic voters and instead to enable both parties to convert their popular support into legislative seats with equal ease. Plaintiffs’ plan performs at least as well as the current plan on every other metric used by courts to evaluate the validity of a districting plan. Both plans have total population deviations of less than 1 percent. Both plans have six African American opportunity districts and one Hispanic opportunity district. Plaintiffs’ plan splits one fewer municipal boundary than the current plan. The districts in plaintiffs’ plan are substantially more compact than the current plan (average compactness of 0.41 versus 0.28).
OPINION A. Standard of Review To satisfy federal pleading standards, a plaintiff need only draft a complaint that provides the defendants adequate notice and “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009). “Plausible” does not mean “probable.” Iqbal, 556 U.S. at 678. See also Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (“[I]t is not . . . necessary (or appropriate) to stack up inferences side by side and allow the case to go forward only if the plaintiff's inferences seem more compelling than the opposing inferences.") (internal quotations omitted). Rather, “plausible” means that the plaintiffs’ allegations are sufficient to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. The same standard applies to both the merits and jurisdiction. Silha v. Act, Inc., No. 15-1083, — F.3d. —, 2015 WL 7281602, at *4 (7th Cir. Nov. 18, 2015) (“When evaluating a facial challenge to subject matter jurisdiction under Rule 12(b)(1), a court should use Twombly–Iqbal's ‘plausibility’ requirement.”). We must accept all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiffs. Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013).
B. Political Question Doctrine In their opening brief, defendants ask this court to grant their motion to dismiss on the ground that plaintiffs’ claims are not justiciable, or, more specifically, that partisan gerrymandering claims raise political questions that only other branches of government can resolve because the claims lack a judicially manageable standard. Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012) (“[A] controversy involves a political question where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable
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standards for resolving it.”) (internal quotations and alterations omitted). We decline this request because defendants’ position has not been adopted by a majority of the justices on the Supreme Court. In Davis v. Bandemer, 478 U.S. 109, 123 (1986), the Court rejected the argument that partisan gerrymandering claims are nonjusticiable political questions. In Vieth v. Jubelirer, 541 U.S. 267, 305 (2004), four justices expressed the view that partisan gerrymandering is a political question, but the other five justices rejected that view. In League of United Latin American Citizens v. Perry, 548 U.S. 399, 420 (2006), the Court declined to revisit the issue. Since LULAC, the Court has not considered the merits of a partisan gerrymandering claim, so we conclude that Bandemer still controls on the narrow question whether partisan gerrymandering claims are barred under the political question doctrine. See also Shapiro v. McManus, No. 14-990, — U.S. — 2015 WL 8074453, at *5 (U.S. Dec. 8, 2015) (acknowledging that a majority of the Court has declined to find partisan gerrymandering claims nonjusticiable). Until a majority of the Supreme Court rules otherwise, lower courts must continue to search for a judicially manageable standard.
C. Standing In an order dated November 17, 2015, dkt. #38, we asked the parties to submit supplemental briefs on the threshold question whether plaintiffs have standing to sue under the test articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), which requires the plaintiffs to show that they have suffered a concrete and particularized injury that is fairly traceable to the defendants' conduct and that is likely to be redressed by
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winning the lawsuit. In particular, we asked the parties to discuss whether a voter has a legal interest in the election results outside his or her own district. Having reviewed the parties’ submissions, we are persuaded that plaintiffs have met their burden at the pleading stage to allege that they have standing.
In their supplemental briefs, plaintiffs say that their injury is set forth in paragraph 16 of their complaint:
Regardless of where they reside in Wisconsin and whether they themselves reside in a district that have been cracked or packed, all of the plaintiffs have been harmed by the manipulation of district boundaries in the Current Plan to dilute Democratic voting strength. As a result of the statewide partisan gerrymandering, Democrats do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly. As a result, the electoral influence of plaintiffs and other Democratic voters statewide has been unfairly, disproportionately, and undemocratically reduced. In other words, we understand plaintiffs to identify their injury as not simply their inability to elect a representative in their own districts, but also their reduced opportunity to be represented by Democratic legislators across the state. Plts.’ Supp. Br., dkt. #41, at 5 (“The Current Plan’s enormous (and intentional) pro-Republican efficiency gap injures all Democrats in Wisconsin by diluting the collective value of their individual votes on a statewide basis.”). In arguing that plaintiffs do not have standing to bring a statewide challenge, defendants point to Justice Stevens’ dissent in Vieth, 541 U.S. at 327-28, in which he suggested that a plaintiff’s standing in a political gerrymandering case should be governed by the same standard as a racial gerrymandering case under the equal protection clause, which generally limits a plaintiff’s standing to the district in which he or she lives. Alabama
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Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015) (“[A] voter who lives elsewhere in the State. . . normally lacks standing to pursue a racial gerrymandering claim.”). Because plaintiffs have not joined a Democrat from each of the 99 Assembly districts, defendants argue that plaintiffs lack standing to bring a statewide challenge. Lower courts and commentators have also raised questions about whether the type of injury plaintiffs allege is sufficiently concrete and particularized to confer standing. E.g., Radogno v. Illinois State Bd. of Elections, No. 1:11-CV-04884, 2011 WL 5025251, at *4 (N.D. Ill. Oct. 21, 2011) (“The standing analysis for political gerrymandering claims is complicated by the largely unresolved status of political gerrymandering claims in general. That is, even if such claims are theoretically viable . . . it is not particularly clear who would have standing to bring them.”); Heather K. Gerken, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U. Pa. L. Rev. 503, 509 n.31 (2004) (noting "the difficulty that those endorsing a purely individualist approach to the partisan gerrymander would encounter in describing the injury in sufficiently concrete terms to confer standing").
Although the answer is not free from doubt, we conclude that plaintiffs’ alleged injury is sufficiently concrete and particularized under current law to satisfy Lujan with respect to a statewide challenge to the districting plan, even without a plaintiff from every legislative district. In each of the three cases in which the Supreme Court considered partisan gerrymandering claims, the plaintiffs were challenging the plan statewide, yet only one justice (Justice Stevens) questioned the plaintiffs’ standing. LULAC, 548 U.S. at 419-20 (opinion of Kennedy, J.) (discussing statewide scope of plaintiffs’ partisan gerrymandering
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claims); Vieth, 541 U.S. at 285 (plurality opinion) (“[A]ppellants propose a test that is satisfied only when partisan advantage was the predominant motivation behind the entire statewide plan.”) (internal quotations omitted); Bandemer, 478 U.S. at 127 (“[T]he claim made by the appellees in this case is a claim that the 1981 apportionment discriminates against Democrats on a statewide basis.”). Arguably, Justice O’Connor raised a similar concern in Bandemer, although she treated the issue as one related to the merits rather than standing. Bandemer, 478 U.S. at 153 (“To treat the loss of candidates nominated by the party of a voter's choice as a harm to the individual voter, when that voter cannot vote for such candidates and is not represented by them in any direct sense, clearly exceeds the limits of the Equal Protection Clause.”).
As we noted in the November 17 order, the Supreme Court’s failure to address standing in Bandemer, Vieth and LULAC is not dispositive because “assumptions—even on jurisdictional issues—are not binding.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 478–79 (2006). However, it seems telling that the Supreme Court has not rested its determinations on this threshold issue. Even in Vieth, in which the district court found expressly that the plaintiffs had standing to raise a statewide claim, Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 539-40 (M.D. Pa. 2002), and Justice Stevens raised standing concerns, the other justices did not think it necessary to consider the issue, even though dismissing the case for lack of standing would have involved a more straightforward analysis than a discussion of the political question doctrine or the merits. Again, when the Court decided LULAC two years later, only Justice Stevens discussed standing.
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In other cases, the Supreme Court has recognized injuries similar to those alleged by plaintiffs in this case. For example, in cases challenging the drawing of legislative districts under Section 2 of the Voting Rights Act, the harm may include the dilution of a racial minority’s political power through “cracking” and “packing” that minority in order to minimize the number of districts in which that minority may elect the candidate of its choice. E.g., Johnson v. De Grandy, 512 U.S. 997, 107 (1994) (“[M]anipulation of district lines can dilute the voting strength of politically cohesive minority group members, whether by fragmenting the minority voters among several districts where a bloc-voting majority can routinely outvote them, or by packing them into one or a small number of districts to minimize their influence in the districts next door.”). See also LULAC, 548 U.S. at 496 (Roberts, C.J., concurring in part, concurring in the judgment and dissenting in part) (“[A] § 2 plaintiff must at least show an apportionment that is likely to perform better for minority voters, compared to the existing one.”). Under Section 2, the scope of the claim is tied to the scope of the injury, so standing to sue is limited to “[p]laintiffs [who] reside in a reasonably compact area that could support additional” majority-minority districts. Pope v. Cty. of Albany, No. 1:11-CV-0736 LEK/CFH, 2014 WL 316703, at *5-6 (N.D.N.Y. Jan. 28, 2014) (citing Johnson, 512 U.S. at 1013-15).
Because plaintiffs’ alleged injury in this case relates to their statewide representation, it follows that they should be permitted to bring a statewide claim. As plaintiffs point out, the Supreme Court has found that individual plaintiffs have standing to bring challenges to the entire state’s districting map in “one-person, one-vote” cases, in which the plaintiffs
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allege that population differences among legislative districts violate the equal protection

clause. Baker v. Carr, 369 U.S. 186, 204-08 (1962). At this stage, this is further support

for a more general view that plaintiffs challenging legislative districts have standing to

challenge the entire state plan when the nature of the injury is statewide. Defendants say

that Baker is only about the dilution of an individual vote, but that is not necessarily true.

Bandemer, 478 U.S. at 166-67 (“While population disparities do dilute the weight of

individual votes,

.”)

their discriminatory effect is felt only when those individual votes are combined

(emphasis added) (opinion of Powell, J.).

We acknowledge that the Supreme Court’s limited discussion of standing in the

context of gerrymandering claims leaves some questions unanswered. E.g., Richard H.

Fallon, Jr., The Fragmentation of Standing, 93 Tex. L. Rev. 1061, 1117 (2015) (stating that

injury recognized in “one-person, one-vote” cases does “not fit comfortably within the

conceptual bounds” of Lujan framework); Timothy G. O'Rourk, Shaw v. Reno: The Shape

of Things to Come, 26 Rutgers L.J. 723, 773 (1995) (questioning whether standing in “one-

person, one-vote” cases should be treated differently from racial gerrymandering cases).

Although it may be that ultimately the Supreme Court decides to limit standing in all

gerrymandering cases the same way it has limited racial gerrymandering claims under the

equal protection clause, we believe that, under current law, plaintiffs have adequately alleged

an injury in fact.

We reach the same conclusion with respect to the second and third elements of

standing, which are causation and redressability. Plaintiffs have alleged that defendants’

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districting plan has denied them a fair chance to elect representatives across the state and that adopting a new plan that complies with their theory of partisan symmetry would make it easier for them to gain representation. At this stage of the proceedings, we must accept those allegations as true.
Our conclusion that plaintiffs have adequately alleged standing is supported by defendants’ failure to cite any cases in which a court found in a partisan gerrymandering case that the plaintiffs did not have standing to bring a statewide challenge. Although the cases plaintiffs cite contain little discussion of standing, we are hesitant to dismiss a case for lack of standing based solely on the pleadings when other courts considering partisan gerrymandering consistently have assumed that standing exists to challenge a statewide plan. E.g., Perez v. Perry, 26 F. Supp. 3d 612 (W.D. Tex. 2014); Baldus v. Members of Wisconsin Government Accountability Board, 849 F. Supp. 2d 840 (E.D. Wis. 2012); Committee for a Fair and Balanced Map v. Illinois State Board of Elections, 835 F. Supp. 2d 563 (N.D. Ill. 2011); Fletcher v. Lamone, 831 F. Supp. 2d 887, 903-04 (D. Md. 2011); Perez v. Texas, 2011 WL 9160142, at *9 (W.D. Tex. 2011); Radogno v. Illinois State B of Elections, 2011 WL 5868225 (N.D. Ill. 2011); Radogno v. Illinois State Board of Elections, 2011 WL 5025251, at *4 (N.D. Ill. 2011).
Accordingly, we are denying defendants’ motion to dismiss for lack of standing. However, defendants are free to raise this issue again on a more developed record in the context of a motion for summary judgment.
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D. Merits With respect to the merits, the parties focus on plaintiffs’ equal protection claim, so we will do the same. (The parties debate whether defendants’ motion seeks dismissal of plaintiffs’ First Amendment claim, but we need not resolve that issue because neither side identifies an analytical difference between the two claims.) Generally, an equal protection claim requires a showing of a discriminatory intent and a discriminatory effect. Bandemer, 478 U.S. at 127 (plurality opinion) (citing City of Mobile, Alabama v. Bolden, 446 U.S. 55, 67-68 (1980)). However, because the Supreme Court has stated that some amount of partisan bias is inevitable in redistricting, e.g., id. at 129 (plurality opinion), the challenge in partisan gerrymandering claims has been in determining “how much is too much” and in choosing the appropriate standard for making that determination. Vieth, 541 U.S. at 298-99 (plurality opinion); id. at 344 (Souter, J., dissenting). Thus far, the Supreme Court has not identified a standard for reviewing a partisan gerrymandering claim, but it has left open the possibility that an appropriate standard may be found. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment) (“I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”). Plaintiffs set forth a three-part test for establishing a constitutional violation. In step one, the plaintiffs must show that the defendants intended to discriminate against an “identifiable political group” of which the plaintiffs are a member. Plts.’ Br., dkt. #31, at 9 (quoting Bandemer, 478 U.S. at 127 (plurality opinion)). In step two, the plaintiffs must
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show a discriminatory effect through a metric called the “efficiency gap,” which is discussed more below. If the plaintiffs make the first two showings, the burden shifts to the defendants in step three to show that the efficiency gap was “the necessary result of either a legitimate state policy or the state’s underlying political geography.” Id. at 10. Plaintiffs say that they modeled steps two and three after the standard for “one-person, one-vote” gerrymandering cases, under which the state must show that population deviations over ten percent are justified by a legitimate state interest. E.g., Brown v. Thomson, 462 U.S. 835, 842-43 (1983).
With respect to the first element, plaintiffs point to their allegations that Republican state legislators hired lawyers and an expert for the purpose of redrawing all district lines to maximize Republican victories and minimize wins for Democratic candidates. Cpt. ¶¶ 8, 31, 33-36, dkt. #1. The plan was drafted in secret and without any input from Democrats. Id. at ¶¶ 8, 31-32, 37-40. Defendants do not challenge this part of plaintiffs’ standard and they do not deny that plaintiffs have adequately alleged discriminatory intent against an identifiable political group (Democratic voters).
The parties focus on whether plaintiffs have adequately pleaded a discriminatory effect and, more generally, whether plaintiffs have identified a judicially discernible and manageable standard for making a showing of discriminatory effect. Plaintiffs’ theory of equal representation comes from a concept called “partisan symmetry,” which plaintiffs define as “the idea that a district plan should treat the major parties symmetrically with respect to the conversion of votes to seats and that neither party should have a systematic
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advantage in how efficiently its popular support translates into legislative power.” Cpt. ¶ 4,
dkt. #1. See also LULAC, 548 U.S. at 466-67 (Stevens, J., concurring in part and dissenting
in part) (“The symmetry standard requires that the electoral system treat similarly-situated
parties equally.”).
Plaintiffs measure partisan symmetry through what they call the “efficiency gap,”
which plaintiffs describe as follows:
[t]he efficiency gap captures in a single number all of a district plan’s cracking and packing—the two fundamental ways in which partisan gerrymanders are constructed. Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins. Both cracking and packing result in “wasted” votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needed to prevail (in the case of packing). The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.
Cpt. ¶ 5, dkt. #1. Plaintiffs provide an example to demonstrate how the efficiency gap is
calculated:
Suppose, for example, that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties' respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.
Id. at ¶ 50. (Another measure of partisan symmetry is “partisan bias,” which plaintiffs
define as “the difference between the shares of seats that the parties would win if they each
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received the same share of the statewide vote.” Plts.’ Br., dkt. #31, at 9. Although plaintiffs allege that the 2012 Assembly plan demonstrates a high level of partisan bias, the parties focus on the efficiency gap, so we will do the same.)
According to plaintiffs, the efficiency gap accurately measures discriminatory effect because it shows the extent to which a “party . . . enjoy[s] a significant advantage in how efficiently its votes convert into seats.” Plts.’ Br., dkt. #31, at 18. Plaintiffs say that such an advantage violates “every voter[’s]constitutional right to equal treatment in the electoral system—and the right not to be treated differently based on the voter’s political beliefs.” Id. Thus, plaintiffs argue, if they can show that the defendants acted with partisan intent and that the efficiency gap exceeds a “reasonable threshold,” then the plan is presumptively unconstitutional. Plts.’ Br., dkt. #31, at 9. In determining the threshold, the court looks at the efficiency gap from other elections over time and across the country. Id. at 4. Plaintiffs contend that a gap of more than 7 percent is a strong indicator that the bias in favor of a particular party is likely to endure for the life of the districting plan. Id.
Plaintiffs assert that the 2012 Assembly Plan meets their test because the efficiency gap for the 2012 election was 12 percent and the efficiency gap for the 2014 election was 10 percent, both of which are greater than the threshold. In their motion, defendants do not challenge the sufficiency of plaintiffs’ allegations that a district plan with an efficiency gap as high as Wisconsin’s Assembly plan is “highly unlikely ever to become neutral over its ten-year lifespan” or that plaintiffs “can predict with nearly 100% confidence that . . . Wisconsin’s Current Plan will continue to unfairly favor Republican voters and
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candidates—and unfairly disadvantage Democratic voters and candidates—throughout the remainder of the decade.” Cpt. ¶ 7, dkt. #1. In addition, defendants do not challenge the sufficiency of plaintiffs’ allegations that the Assembly plan’s efficiency gap cannot be justified by traditional districting criteria or any other legitimate factor.
Defendants’ primary argument is that partisan symmetry is no different from the theories that the Supreme Court has rejected in the past. In particular, defendants say that partisan symmetry is simply a form of proportional representation, which the Supreme Court has said repeatedly is not required by the Constitution. E.g., Bandemer, 478 U.S. at 129-30 (plurality opinion) (“Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.”).
Plaintiffs argue that the efficiency gap is about comparing the wasted votes of each party, not determining whether the party’s percentage of the statewide vote share is reflected in the number of representatives that party elects successfully. At this stage, we must accept as true the allegation that an election’s results may have a small efficiency gap without being proportional or they may be proportional and still have a large efficiency gap. Plts.’ Br., dkt. #31, at 24 (citing Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 854 & n.118 (2015)).1
1 Plaintiffs provide the following example in their brief: [A]ssume that a state has ten districts, each with a hundred voters, and two parties, Party A and Party B. Assume also that Party A wins two districts by a
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Further, the plaintiffs in Bandemer, Vieth and LULAC did not rely on partisan symmetry in their arguments before the Court and the Court did not reject partisan symmetry as a tool in determining whether partisan gerrymandering is unconstitutional. LULAC, 548 U.S. at 417 (opinion of Kennedy, J.) (rejecting standard requiring plaintiffs to show “single-minded purpose . . . to gain partisan advantage”); Vieth, 541 U.S. at 284-87 (plurality opinion) (rejecting standard requiring plaintiffs to show “predominant intent to achieve partisan advantage,” “systematically ‘pack[ing]’ and ‘crack[ing]’ the rival party’s voters” and “thwart[ing] plaintiffs’ ability to translate a majority of votes into a majority of seats”); Bandemer, 478 U.S. at 129-30 (rejecting proportional representation requirement).
In fact, some of the justices have pointed to partisan symmetry as a theory with promise. LULAC, 548 U.S. at 465-66 (Stevens, J., concurring in part and dissenting in part)(“[T]he symmetry standard, a measure social scientists use to assess partisan bias . . . is undoubtedly a reliable standard for measuring a burden on the complainants' representative rights.”) (internal quotations and alterations omitted); id. at 483-84 (Souter, J., concurring in part and dissenting in part) (“[N]or do I rule out the utility of a criterion
margin of 80 to 20 and four districts by a margin of 70 to 30, and that Party B wins four districts by a margin of 60 to 40. Then there is perfectly proportional representation; Party A receives 600 of the 1000 votes in the state ((2 x 80) + (4 x 70) + (4 x 40)) and wins six of the ten seats. But the efficiency gap here is not zero. It is actually 10%, the difference between Party A’s 300 wasted votes ((2 x 30) + (4 x 20) + (4 x 40)) and Party B’s 200 wasted votes ((2 x 20) + (4 x 30) + (4 x 10)), divided by the 1000 total votes cast. Plts.’ Br., dkt. #31, at 24. See also Stephanopoulos & McGhee, supra, 82 U. Chi. L. Rev. at 854 n.118 (“According to the efficiency gap equation, . . . [i]f a party receives 60 percent of the vote and 60 percent of the seats, for example, a plan would have an efficiency gap of 10 percent against the party.”).
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of symmetry as a test. Interest in exploring this notion is evident. Perhaps further attention could be devoted to the administrability of such a criterion at all levels of redistricting and its review.”) (citations omitted). Justice Kennedy’s support for partisan symmetry is tepid at best, but he left room for partisan symmetry to play some role in the analysis. Id. at 419-20 (opinion of Kennedy, J.)) (“Without altogether discounting its utility in redistricting planning and litigation, I would conclude asymmetry alone is not a reliable measure of unconstitutional partisanship.”). See also id. at 468 n.9 (Stevens, J., concurring in part and dissenting in part) (“I appreciate Justice Kennedy's leaving the door open to the use of the [partisan symmetry] standard in future cases.”).
Much of defendants’ remaining argument is devoted to mischaracterizations of plaintiffs’ proposed standard. For example, defendants argue that plaintiffs’ test does not take into account traditional districting principles or the reasons unrelated to partisan intent that voters of a particular party might be “cracked” or “packed,” such as the natural concentration of Democrats into urban areas. Dfts.’ Br., dkt. #25, at 22-23. In addition, defendants say that, under plaintiffs’ proposed standard, the 2002 Wisconsin Assembly plan would be unconstitutional because it had a large efficiency gap, even though it was drawn by a court. Id. at 24.
These arguments rely on the assumption that plaintiffs’ proposed standard consists of nothing except a calculation of the efficiency gap. Defendants simply have ignored step one and step three of plaintiff’s standard. Even if the plaintiffs were able to establish that the efficiency gap is a sufficiently strong pillar to support a constitutional violation, the
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plaintiffs still must prove partisan intent (step one). The defendants also might be able to show that a large efficiency gap is justified by a legitimate state interest, which may include traditional districting criteria such as equal population, compliance with the Voting Rights Act, compactness, respect for political subdivisions or respect for communities of interest (step three).
We have reviewed defendants’ remaining arguments and conclude that they are unpersuasive or premature. A determination whether plaintiffs’ proposed standard is judicially manageable relies at least in part on the validity of plaintiffs’ expert opinions, which we must accept as true in the context of a motion a dismiss. A more developed record may show that plaintiffs’ claims cannot be legally distinguished from the partisan gerrymandering claims that the Supreme Court has rejected in the past. However, current law does not foreclose plaintiffs’ claims and those claims are modeled after a standard that the Supreme Court has adopted in other contexts. Accordingly, we conclude that plaintiffs have stated a claim for relief that is plausible on its face and we are denying defendants’ motion to dismiss.
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ORDER IT IS ORDERED that the motion to dismiss filed by defendants Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas,Timothy Vocke and Kevin J. Kennedy, dkt. #24, is DENIED. Entered this 17th day of December, 2015.
BY THE COURT: /s/ ____________________________ KENNETH F. RIPPLE Circuit Judge
/s/ ____________________________ BARBARA B. CRABB District Judge
/s/ ____________________________ WILLIAM C. GRIESBACH District Judge
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 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WILLIAM WHITFORD, ROGER ANCLAM, EMILY BUNTING, MARY LYNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE and DONALD WINTER,
Plaintiffs,
v.

OPINION and ORDER 15-cv-421-bbc

GERALD C. NICHOL, THOMAS BARLAND, JOHN FRANKE, HAROLD V. FROEHLICH, KEVIN J. KENNEDY, ELSA LAMELAS and TIMOTHY VOCKE,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

The question in this case is whether Wisconsin Act 43—the 2012 districting plan for

the Wisconsin Assembly—is an unconstitutional partisan gerrymander. Plaintiffs are

Wisconsin residents and Democratic voters who allege that the plan is “one of the worst

partisan gerrymanders in modern American history.” Cpt. ¶ 1, dkt. #1. In particular,

plaintiffs allege that Republican legislators drew the plan in secret, in consultation with a

political scientist and without any input from Democrats, in an attempt to maximize

Republican wins and minimize Democratic influence over the political process for as long

as the plan was in place. In addition, plaintiffs allege that Republicans were successful in

1

their attempt, gaining significantly more Assembly seats in 2012 and 2014 than their level of public support suggests. As proof that Republicans unfairly manipulated district lines, plaintiffs created their own plan, which they say satisfies traditional districting criteria such as compactness, contiguity and respect for political subdivisions as well or better than Act 43 but treats Democrat and Republican voters much more equally.
In an order dated December 17, 2015, dkt. #43, we denied defendants’ motion to dismiss after concluding that plaintiffs’ allegations were sufficient to state a plausible claim for relief. Now defendants have filed a motion for summary judgment, dkt. #45, which is ready for review. In addition, plaintiffs have filed what they call a “motion in limine” to exclude the opinions of one of defendants’ named experts, Sean Trende. Dkt. #70.
Defendants raise many important points in their summary judgment submissions. It may be that one or more of these objections carries the day in the end. However, we believe that deciding the case now as a matter of law would be premature because there are factual disputes regarding the validity of plaintiffs’ proposed measurement for determining the existence of a constitutional violation. Accordingly, we deny defendants’ motion for summary judgment and allow the case to proceed to trial.
We are also denying plaintiffs’ motion in limine without prejudice to plaintiffs’ renewing the motion at the conclusion of trial. Plaintiffs raise significant objections in their motion. However, because it is not necessary to consider Trende’s opinions in order to resolve the motion for summary judgment and because the trial will be to a court rather than to a jury, we believe the prudent course of action is to rule on the admissibility of Trende’s
2

opinions after he has an opportunity to testify. Metavante Corp. v. Emigrant Savings Bank, 619 F.3d 748, 760 (7th Cir. 2010) (“[T]he court in a bench trial need not make reliability determinations [regarding experts] before evidence is presented.”); In re Salem, 465 F.3d 767, 777 (7th Cir. 2006) (“[W]here the factfinder and the gatekeeper are the same, the court does not err in admitting the [expert] evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.”).
To accommodate a court scheduling conflict, the trial will begin on Tuesday, May 24, 2016, at 9:00 a.m. The parties should be prepared to finish the trial in four days.
OPINION In the order denying the motion to dismiss, we considered three issues: (1) whether challenges to a partisan gerrymander were justiciable; (2) whether plaintiffs had standing to sue; and (3) whether plaintiffs stated a plausible claim for relief. We answered each of these questions in the affirmative. Because defendants do not raise any new arguments about justiciability or standing in their summary judgment submissions, we see no reason to discuss those issues in this opinion. Instead, we will focus on whether plaintiffs have raised any genuine issues of material fact with respect to the various objections raised in defendants’ motion for summary judgment. Fed. R. Civ. P. 56.
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A. Legal Background As the parties well know, there is much uncertainty in the law regarding partisan gerrymandering. Although the Supreme Court has well-established tests for analyzing alleged gerrymanders with respect to race, e.g., Miller v. Johnson, 515 U.S. 900, 916-17 (1995), and equal population, e.g., Evenwel v. Abbott, No. 14-940, 2016 WL 1278477, at *3 (U.S. Apr. 4, 2016); Brown v. Thomson, 462 U.S. 835, 842-43 (1983), the Court has struggled to determine the appropriate test for gerrymanders based on political affiliation. In Davis v. Bandemer, 478 U.S. 109, 118-27 (1986), a majority of the Court agreed that partisan gerrymander claims are justiciable under the equal protection clause and that the plaintiffs must prove a discriminatory intent and a discriminatory effect. However, the Court could not agree on a specific standard to apply, particularly with respect to determining a discriminatory effect. Compare Bandemer, 478 U.S. at 133 (plurality opinion) (“[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”), with id. at 161 (Powell, J., concurring in part and dissenting in part) (question is whether legislature acted solely for partisan ends to the exclusion of "all other neutral factors relevant to the fairness of redistricting”). In Vieth v. Jubelirer, 541 U.S. 267 (2004), four Justices concluded that Bandemer should be overruled because partisan gerrymanders present political questions that cannot be answered by federal courts. Id. at 305 (plurality opinion). Four other Justices agreed that the Bandemer plurality did not provide a workable standard, but they disagreed with the
4

plurality regarding justiciability and they proposed alternative standards for reviewing a partisan gerrymandering claim. Compare Vieth, 541 U.S. at 339 (Stevens, J., dissenting) (question is “whether the legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral principles”), with Vieth, 541 U.S. at 346-51 (Souter, J., dissenting) (proposing burden-shifting framework modeled after McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), and Vieth, 541 U.S. at 360-61 (Breyer, J., dissenting) (question is whether there was “unjustified use of political factors to entrench a minority in power”).
In the middle, Justice Kennedy concluded that neither the Justices nor the parties had provided a workable standard, but he declined to close the door on future partisan gerrymandering claims. Id. at 306-08 (Kennedy, J., concurring in the judgment). Rather, he stated that “courts should be prepared to order relief” if “workable standards do emerge.” Id. at 317. He suggested that future cases could be guided not just by the equal protection clause but also by the First Amendment, focusing on the question whether a plan “burden[s] or penaliz[es] citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Id. at 314. See also Baldus, 849 F. Supp. 2d at 853 (“[P]erhaps the Court will find some day that the First Amendment also protects persons against state action that intentionally uses their partisan affiliation to affect the weight of their vote.”).
Finally, in League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), the Court assumed that partisan gerrymanders are justiciable, but a majority concluded that
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the plaintiffs had failed to identify “a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.” Id. at 414. Again, the dissenting Justices proposed alternative standards in line with those they proposed in Vieth. Compare LULAC, 548 U.S. at 474 (Stevens, J., concurring in part and dissenting in part), with LULAC, 548 U.S. at 391-92 (Breyer, J., concurring in part and dissenting in part).
Since LULAC, the Supreme Court has not considered a partisan gerrymandering claim. Thus, it is left to parties bringing those claims and the lower courts considering them to continue to search for a workable standard that reflects a voter’s right to “fair and effective representation.” Reynolds v. Sims, 377 U.S. 533, 565 (1964). See also Baldus, 849 F. Supp. 2d at 853 (“Justice Kennedy's pivotal opinion [in Vieth] appeared to throw the ball to the litigating parties to come up with a manageable legal standard.”).
B. Plaintiffs’ Proposed Standard In this case, plaintiffs’ proposed test adopts the basic structure of a claim brought under the equal protection clause, which generally requires a showing of discriminatory intent and discriminatory effect. Bandemer, 478 U.S. at 127 (plurality opinion) (citing City of Mobile, Alabama v. Bolden, 446 U.S. 55, 67–68 (1980)). Perhaps in response to Justice Kennedy’s opinion in Vieth, plaintiffs’ complaint includes a claim under the First Amendment as well, but at this point, neither side has developed a separate argument under the First Amendment or identified any analytical differences between plaintiffs’ First
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Amendment and equal protection claims. Plaintiffs’ proposed test has three parts. First, the plaintiffs must show that the
defendants acted with discriminatory intent. More specifically, plaintiffs frame the question as whether the “plan was designed with the intention of benefiting one party and disadvantaging its adversary.” Plts.’ Br., dkt. #68, at 58. At oral argument, plaintiffs summarized this element as an intent to disadvantage on the basis of political affiliation and they said that they modeled the element on the standard in Bandemer. Trans., dkt. #89, at 47.
Plaintiffs’ most significant innovation in their test is the second part, with respect to discriminatory effect. Under this part, the plaintiffs must show that the plan “exhibited a high and durable level of partisan asymmetry in the first election after redistricting.” Id. at 59. Plaintiffs define “partisan symmetry” as “the idea that the electoral system should treat similarly-situated parties equally, so that they are able to convert their popular support into legislative representation with approximately equal ease.” Id. at 49 (internal quotations omitted). Plaintiffs say that partisan symmetry provides an appropriate basis for evaluating discriminatory effect because several Justices in LULAC relied on it or otherwise discussed it favorably. E.g., LULAC, 548 U.S. at 466 (Stevens, J., concurring in part and dissenting in part) (partisan symmetry is “undoubtedly a reliable standard for measuring a burden on the complainants' representative rights”) (internal quotations omitted); id. at 483-84 (Souter, J., concurring in part and dissenting in part) (“[N]or do I rule out the utility of a criterion of symmetry as a test. Interest in exploring this notion is evident. Perhaps further
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attention could be devoted to the administrability of such a criterion at all levels of

redistricting and its review.”) (internal citations omitted). See also id. at 420 (opinion of

Kennedy, J.) (declining to “altogether discount[] [partisan symmetry’s] utility in redistricting

planning and litigation”).

In addition, plaintiffs say that partisan symmetry reflects the Supreme Court’s

description of partisan gerrymandering in other cases. Arizona State Legislature v. Arizona

Independent Redistricting Commission, 135 S. Ct. 2652, 2658 (2015) (partisan

gerrymandering is “the drawing of legislative district lines to subordinate adherents of one

political party and entrench a rival party in power”); Vieth, 541 U.S. at 271 n.1 (plurality

opinion) (gerrymandering is “giv[ing] one political party an unfair advantage by diluting the

opposition’s voting strength”); Bandemer, 478 U.S. at 127 (plurality opinion)

(gerrymandering is “the manipulation of individual district lines” causing a party’s “voters

over the State as a whole” to be “subjected to unconstitutional discrimination.”). See also

Vieth, 541 U.S. at 335 (Stevens, J., dissenting) (“Gerrymandering always involves the

drawing of district boundaries to maximize the voting strength of the dominant political

faction and to minimize the strength of one or more groups of opponents.”).

Finally, plaintiffs say that partisan symmetry is widely accepted among scholars as

the most appropriate way to measure partisan fairness. Plts.’ Br., dkt. #68, at 50 (citing

Bernard Grofman & Gary King, The Future of Partisan Symmetry As A Judicial Test for

Partisan Gerrymandering After

, 6 Election L.J. 2, 6 (2007) (“We are aware of

Lulac v. Perry

no published disagreement or even clear misunderstanding in the scholarly community about

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partisan symmetry as a standard for partisan fairness in plurality-based American elections
since [1987.]”)).
Plaintiffs measure partisan symmetry with a metric they call the “efficiency gap,”
which is a figure that represents the difference between the parties’ “wasted votes” in an
election. A vote is “wasted” under this analysis if it is either (1) cast for a candidate who
lost the election or (2) cast for the winning candidate, but in excess of what the candidate
needed to win. Plts.’ PFOF ¶ 6, dkt. #79. The efficiency gap for a particular election is the
difference between the parties’ total wasted votes among all of the districts, divided by the
total number of votes cast.
In the December 17, 2015 order, we noted the following example of an efficiency gap
calculation provided in plaintiffs’ complaint:
Suppose, for example, that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties' respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.
Cpt. ¶ 50, Dkt. #1.1
1 It would seem that the number of wasted votes for the winner should be one vote less than what plaintiffs’ calculation suggests for each district. In this example, the party would need votes to win, so Party A would have nine rather than ten wasted votes for each
51 district it won (60-51=9) and Party B would have 29 rather than 30 wasted votes for the districts it won (80-51=29). Regardless, the parties do not discuss this potential discrepancy, so we need not consider it.
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The purpose of the efficiency gap is to capture in one number the extent to which voters of a particular party are “packed” and “cracked.” Packing means concentrating one party's supporters in a few districts so that they win by overwhelming margins. Cracking means dividing a party's supporters among multiple districts so that they fall short of a majority in each one. Vieth, 541 U.S. at 287 n.7. Plaintiffs say that a high level of cracking and packing (and thus a large efficiency gap) is indicative of discriminatory effect because, all things being equal, the number of wasted votes for both parties should be about the same. Moreover, plaintiffs say that if a plan produces an efficiency gap of greater than 7 percent after the first election, subsequent elections under the same plan are highly likely to continue to be skewed in favor of the same party, even if another party significantly increases its vote share. Plts.’ PFOF ¶¶ 12, 85-93, 114-18, 154, 170, dkt. #79. Thus, plaintiffs believe that an efficiency gap of more than 7 percent, combined with a showing of discriminatory intent, should trigger a presumption that the districting plan is unconstitutional.
Plaintiffs identify an alternative measure of partisan symmetry called “partisan bias,” which they defined previously as “the difference between the shares of seats that the parties would win if they each received the same share of the statewide vote.” Plts.' Br., dkt. #31, at 9. However, neither side develops an argument in their briefs regarding the application of partisan bias to this case. At oral argument, plaintiffs suggested that partisan bias could be used as a kind of “robustness check” on the accuracy of the efficiency gap. Trans., dkt. #89, at 70. Because the parties did not explore this issue in their briefs, we decline to consider it at this time.
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Finally, under the third part of plaintiffs’ proposed test, if plaintiffs prove both discriminatory intent and discriminatory effect, the burden shifts to defendants. In particular, the defendants must show that the plan’s “severe asymmetry” was “unavoidable” in light of “the state’s political geography and legitimate redistricting objectives.” Plts.’ Br., dkt. #68, at 1, 59. Plaintiffs say that they modeled this part of their test after the equal apportionment cases, in which the burden shifts to the state to justify a plan if the plaintiffs show more than a ten percent population deviation among the districts. E.g., Brown, 462 U.S. 835 at 842–43.
C. Application of Plaintiffs’ Standard For the purpose of their motion for summary judgment, defendants do not deny that plaintiffs could prove their claim under their proposed standard. With respect to the first element, discriminatory intent, plaintiffs allege that Republican leaders in the state legislature hired a law firm and a political scientist to design an Assembly plan that would maximize the electoral advantage of Republicans. In particular, plaintiffs allege that the Republicans used past election results to measure the partisanship of the electorate and then to design districts that would either “crack” Democratic voters (dividing them into multiple districts to prevent them from reaching a majority) or “pack” those voters (concentrating them into a small number of districts). In this way, Republicans hoped to maximize the number of districts that would elect a Republican and minimize the number of districts that would elect a Democrat. Republican leaders drafted the plan in secret, without any input
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from Democrats, and then enacted the plan as Act 43 with little debate. Baldus, 849 F. Supp. 2d at 845, 851 (summarizing process of enacting Act 43 and finding statements that drafters were not influenced by partisan factors “to be almost laughable”). During oral argument, defendants conceded that plaintiffs can prove this element of the test as plaintiffs have framed it. Trans., dkt. #89, at 9, 88.2
With respect to the second element, discriminatory effect, plaintiffs’ expert Simon Jackman, a political scientist, measured a 13 percent efficiency gap in the Republicans’ favor for the 2012 Assembly election; plaintiff’s other expert, Kenneth Mayer, also a political scientist, calculated a 12 percent pro-Republican efficiency gap, using a more elaborate method. Plts.’ PFOF ¶¶ 10 and 15, dkt. #79. (Mayer used the “full form” method, which means that he tallied wasted votes district by district. Id. at ¶ 120. Jackman used the “simplified” method, using the formula (S – 0.5) – 2(V – 0.5), where S was a party’s statewide seat share and V was a party’s statewide vote share. Id. at ¶ 121.) These election results, plaintiffs say, were consistent with what the legislature’s consultant predicted when he aided the Republicans in drafting the plan. Id. at ¶ 97. It is undisputed that, from 1972 to 2010, not a single legislative map in the country was as asymmetric in its first two elections as those generated in 2012 and 2014 Wisconsin Assembly elections. Id. at ¶ 11. According to Jackman, the map is so skewed in favor of the Republicans that there is a nearly 100 percent chance that the plan will continue to disadvantage Democrats, as measured by
2 They have not conceded, however, that the plaintiffs could meet a more demanding showing of partisan intent. Trans., dkt. #89, at 88.
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the efficiency gap, throughout the life of the plan. Id. at ¶¶ 11, 84. With respect to the third element, whether the Republican advantage can be justified
by neutral reasons, defendants have made no effort in their summary judgment submissions to defend Act 43 on neutral grounds. However, as evidence that Act 43 cannot be justified by neutral measures, plaintiffs submitted their own proposed plan, which plaintiffs say has a much smaller efficiency gap of 2 percent in favor of Republicans, but still satisfies other legitimate districting criteria at least as well as Act 43. Plts.’ PFOF ¶¶ 16, 142.
D. Defendants’ Challenges to Plaintiffs’ Standard Rather than challenge plaintiffs’ ability to meet the standard, defendants challenge the standard itself. However, a review of defendants’ objections show that there are fact issues that need to be resolved at trial.
1. Efficiency gap a. Efficiency gap as a measure of discriminatory effect
The bulk of defendants’ objections relate to plaintiffs’ proposed measure of discriminatory effect, the efficiency gap. Of these, the primary objection seems to be that the efficiency gap is not a good measure of discriminatory effect because even seemingly neutral plans can have a large efficiency gap. For example, defendants point to Wisconsin’s 2002 Assembly plan. Although a federal court drew that plan (based on plans submitted by the political parties), Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at
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*4 (E.D. Wis. May 30, 2002) amended, No. 01-C-0121, 2002 WL 34127473 (E.D. Wis.

July 11, 2002), the efficiency gap for the plan was 7.5 percent in favor of the Republicans

in 2002 and then fluctuated between 4 percent and 12 percent in favor of the Republicans

for the remainder of the decade. Dfts.’ PFOF ¶¶ 212-216, dkt. #74. Defendants also point

to other states that have had pro-Republican efficiency gaps of more than 5 percent in recent

years, even when the plan was drawn by a neutral body. Dfts.’ Br., dkt. #46, at 38. More

generally, defendants rely on the opinion of one of their experts, Sean Trende, to argue that

legislative plans in Wisconsin and around the country are more likely to favor Republicans

in recent years because of political geography, not partisan intent. Dfts.’ Br., dkt. #48, at

26-30; Dfts.’ PFOF ¶¶ 234-45, dkt. #74. In other words, defendants argue that Democrats

are

packed into a smaller number of districts, which makes it more likely that their

naturally

share of the votes statewide will be greater than their share of the legislative seats.

In response, plaintiffs say that Wisconsin’s 2002 plan is an anomaly. The average

efficiency gap for the Wisconsin Assembly in the 1970s, 1980s and 1990s ranged between

0.3 percent and 2.4 percent. Plts.’ PFOF ¶¶ 44-46, dkt. #79. Further, plaintiffs say that the

efficiency gap may have been high in the 2002 plan because the court adopted a plan more

similar to the one proposed by Republicans. Plts.’ Br., dkt. #68, at 18. As a general rule,

plaintiffs say, it is much more common for plans drafted by one party to have a significantly

larger efficiency gap than plans drafted through a nonpartisan or bipartisan process. Plts.’

PFOF ¶ 174, dkt. #79.

In any event, plaintiffs say that political geography does explain why efficiency not

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gaps in Wisconsin and elsewhere have become increasingly pro-Republican in recent decades.

Rather, according to Mayer, Democrats and Republicans in Wisconsin have comparable

spatial distributions. Plts.’ PFOF ¶¶ 51-58, dkt. #79. More generally, plaintiffs cite

evidence that there is no national trend of increasing Democratic clustering. Id. at ¶¶ 26-27.

Rather, plaintiffs say, the reason for larger efficiency gaps favoring Republicans is increasing

Republican control of state legislatures. Id. at ¶¶ 49-50, 58, 156. If control over state

legislatures had remained constant, efficiency gaps across the country would have remained

relatively constant as well, including in Wisconsin. Id. at ¶¶ 23-24, 31, 49-50, 58, 156.

Defendants disagree with some of plaintiffs’ conclusions, but they do not object to

the admissibility of their experts’ opinions. Accordingly, we conclude that there is a genuine

dispute on the question whether a large efficiency gap is a strong indicator of a

discriminatory effect.

In their reply brief and at oral argument, defendants seemed to concede that there is

a genuine dispute on this issue, but they argued that the dispute is not material because the

mere existence of large efficiency gaps in plans adopted by neutral bodies is sufficient to

discredit the efficiency gap as a tool for measuring a constitutional violation. We are not

willing to go that far, at least not in the context of a motion for summary judgment.

Plaintiffs are not arguing that voters have a right to equal results such that any plan with a

large efficiency gap must be invalidated. Rather, they are arguing that they have a right to

be free from being

when they vote This is consistent with case law

intentionally disadvantaged

.

under both the First Amendment and the equal protection clause, which recognizes that

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there are many instances in which a government act or policy may have a disparate impact even in the absence of intentional discrimination and that disparate impact alone is not enough to sustain a constitutional claim. Bond v. Atkinson, 728 F.3d 690, 692-93 (7th Cir. 2013) (“[T]he Supreme Court held in Washington v. Davis, 426 U.S. 229 (1976), that disparate impact does not violate the equal protection clause of the fourteenth amendment.”); Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 561 U.S. 661, 700 (2010) (Stevens, J., concurring) (“[I]t is a basic tenet of First Amendment law that disparate impact does not, in itself, constitute viewpoint discrimination.”) (citing cases). Defendants cite no authority for the view that discriminatory intent and discriminatory effect must be borne out by the same evidence.
As an alternative to their broader argument that the efficiency gap is inherently a poor measure of discriminatory effect, defendants say that what is considered a neutral efficiency gap should not be zero. This is because using zero as a baseline does not isolate the portion of the efficiency gap that is attributable to partisan bias. Dfts.’ Br., dkt. #46, at 36. Rather, defendants say that the baseline should incorporate whatever natural advantage a party has as a result of political geography.
Defendants raise an interesting point that may be worth exploring at trial, but we do not believe that it is a ground for granting summary judgment. At most, this is a suggestion to alter the threshold of the plaintiffs’ test and, perhaps, shift the burdens of production or proof. Because it is genuinely disputed whether Wisconsin’s political geography has played a significant role in contributing to Act 43's efficiency gap, an adjustment to the baseline
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would not be dispositive at this stage of the case. However, if the facts show at trial that political geography can and does have an impact on Wisconsin’s and other states’ efficiency gaps, then that would support a view that some burden should be placed on plaintiffs to show as part of their prima facie case the extent to which political geography cannot explain the efficiency gap generated by Act 43.
b. Other objections to the efficiency gap Defendants raise various other objections, both to the efficiency gap as a general
concept for measuring discriminatory effect and to the way that plaintiffs have chosen to implement the efficiency gap in this case: (1) plaintiffs’ experts made assumptions about incumbency and voter turnout that undermine the accuracy of the efficiency gap; (2) by calculating the efficiency gap using the results of only one election, plaintiffs cannot show that the efficiency gap will be a predictable and reliable indicator of discriminatory effect throughout the life of a districting plan; (3) plaintiffs’ experts failed to come up with a consistent way to calculate the efficiency gap; (4) plaintiffs’ experts did not include all the data that they should have in their analyses; (5) plaintiffs’ standard implies that they have a constitutional right to an efficiency gap favoring the Democrats; (6) the efficiency gap constitutionalizes a proportionality standard; and (7) a large number of districting plans around the country have what plaintiffs view as an unreasonably large efficiency gap.
The first four of these objections require little discussion because it is clear that plaintiffs have raised factual disputes requiring a trial. In particular, with respect to the use
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of assumptions about incumbency and voter turn out, plaintiffs’ experts conducted additional analysis (what they call “robustness checks”) to make sure their assumptions did not have a significant effect on their results. Plts.’ PFOF ¶¶ 94-113. Defendants are free to argue at trial that plaintiffs’ methods are not sufficiently reliable to be helpful in determining a constitutional violation.
With respect to the reliability of the efficiency gap to predict whether the same party will have an unfair advantage in future elections, plaintiffs cite expert evidence that historically a large initial efficiency gap has been a very strong indicator of a large efficiency gap throughout the life of the districting plan. Plts.’ PFOF ¶¶ 80-84, 89-93, 166-69, dkt. #79. In addition, plaintiffs’ experts conducted "sensitivity testing" in order to control for swings in elections; the results of that testing did not undermine their conclusions regarding the reliability of the efficiency gap. Id. at ¶¶ 85-88, 114-18, 154, 170. With respect to the differences between plaintiffs’ “full form” and “simplified” methods for calculating an efficiency gap, plaintiffs cite evidence that there is little practical difference between the results generated by the methods, so the choice of method does not affect the measure’s viability. Id. at ¶ 122-35. Finally, defendants’ arguments about data that plaintiffs’ experts should have included in their analysis are classic examples of issues that can be raised during cross examination at trial. Manpower, Inc. v. Insurance Co. of Pennsylvania, 732 F.3d 796, 809 (7th Cir. 2013) (“Assuming a rational connection between the data and the opinion—as there was here—an expert's reliance on faulty information is a matter to be explored on cross-examination; it does not go to admissibility. Our system relies on cross-examination
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to alert the jury to the difference between good data and speculation.”) (internal quotations omitted).
Defendants may be able to show at trial that the court should not accept plaintiffs’ version of the facts. Again, however, defendants do not object to the admissibility of plaintiffs’ evidence, so we cannot resolve these issues on summary judgment.
Defendants’ last three objections require more analysis. These are discussed below.
a. Implications of plaintiffs’ durability threshold As noted above, plaintiffs argue that an efficiency gap of seven percent or greater
should qualify as a discriminatory effect under their test. Plaintiffs chose seven percent as a threshold in part because of their experts’ opinion that a plan with such a large gap is “durable,” meaning that the plan is likely to continue to give the majority party an advantage in subsequent elections under the plan, even if the minority party increases its vote share. Plts.’ PFOF ¶¶ 12, 85-93, 114-18, 154, 170, dkt. #79.
Defendants argue that plaintiffs do not have a right to an efficiency gap that favors Democrats, Dfts.’ Reply Br., dkt. #73, at 23, but this appears to be a misinterpretation of plaintiffs’ position. Plaintiffs are not saying that they have a right to regain control of the legislature. Rather, plaintiffs say that they picked a threshold that was durable in an attempt to answer the question raised repeatedly by the Supreme Court, which is how extreme the discriminatory effects of the gerrymander must be, or, in other words, “how much is too much.” Vieth, 541 U.S. at 298–99 (plurality opinion). Justice Breyer echoed this view when
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he said that court intervention should be limited to “the unjustified use of political factors

to

a minority in power.” Vieth, 541 U.S. at 360 (Breyer, J., dissenting) (emphasis

entrench

added). However, other members of the Court want more specificity. In Vieth, 541 U.S.

at 307-08, Justice Kennedy expressed the need “to define clear, manageable, and politically

neutral standards for measuring the particular burden a given partisan classification imposes

on representational rights.” This is exactly what plaintiffs are attempting to do with the

efficiency gap.

Focusing on durability makes some sense because it is an indication that ordinary

political processes cannot fix the problem, so court intervention is needed. Reynolds v. Sims,

377 U.S. 533, 553-54 (1964) (in context of gerrymandering claim for population deviations,

recognizing that “[n]o effective political remedy to obtain relief against the alleged

malapportionment . . . appears to have been available”); Vieth, 541 U.S. at 361 (Breyer, J.,

dissenting) (“Where unjustified entrenchment takes place, voters find it far more difficult

to remove those responsible for a government they do not want; and these democratic values

are dishonored.”). Focusing specifically on the life span of the plan also makes obvious

sense because the political landscape changes each time a new plan is enacted. Defendants

do not challenge plaintiffs’ view that durability is an appropriate measure of discriminatory

effect, so we need not resolve that issue in this opinion. It is enough to say that a judgment

in plaintiffs’ favor would not give plaintiffs or anyone else a constitutional right to gain

control of the legislature or to draw a plan that is biased in their favor.

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b. Efficiency gap as a constitutional requirement for “hyper-proportional” representation Defendants say that the efficiency gap is an inadequate measurement of a plan’s
partisan effect because it is “a measure of proportionality,” Dfts.’ Br., dkt. #46, at 47, which the Supreme Court has said repeatedly is not required by the Constitution. E.g., LULAC, 548 U.S. at 419 (“[T]here is no constitutional requirement of proportional representation.”); Bandemer, 478 U.S. at 132 (plurality opinion) (“[T]he mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.”). Defendants seem to acknowledge that plaintiffs' test does not require proportional representation per se, in the sense that a party’s seat share must be the same as that party’s share of votes. Rather, defendants say that plaintiffs' standard requires what defendants call "hyper-proportionality." Dfts.’ Br., dkt. #46, at 48. This is because, under plaintiffs' "simplified method" for calculating the efficiency gap, the efficiency gap remains zero only if the party receiving more than 50 percent of the vote receives a 2 percent increase in its share of the seats for every 1 percent increase in its share of the votes. Plts.’ PFOF ¶ 136, dkt. #79. For example, 51 percent of the votes would translate into 52 percent of the seats, 52 percent of the votes would translate into 54 percent of the seats and 75 percent of the votes would translate to 100 percent of the seats. Perhaps “hyper-majoritarianism” would be a more accurate name for defendants’ objection because the formula suggests that a majority of voters should have an even larger majority of seats.
Defendants’ argument is important, but it would be premature to conclude that precedent forecloses plaintiffs’ claim because of this formula. For one thing, plaintiffs say
21

that the ratio is not a normative requirement of their test; it is simply what happens when

a districting plan treats the parties symmetrically. Plts.’ PFOF ¶ 145, dkt. #79. This seems

to be borne out by history, which shows that a 1 percent increase in vote share generally

leads to a two percent increase in seat share. Plts.’ PFOF ¶¶ 137-39, 146, dkt. #79. See also

LULAC, 548 U.S. at 464-65 (Stevens, J., concurring in part and dissenting in part) (“[O]ur

electoral system tends to produce a ‘seat bonus’ in which a party that wins a majority of the

vote generally wins an even larger majority of the seats.”).

Further, plaintiffs’ standard does not

a 2:1 ratio between seat share and vote

require

share. The efficiency gap is only part of plaintiffs’ test, so no claim can prevail simply

because a districting plan produces a particular vote share to seat share ratio. Even without

considering the other elements of the standard, the 2:1 ratio appears in plaintiffs’ formula

only when the efficiency gap is zero. Plts.’ PFOF ¶ 136, dkt. #79. Because plaintiffs’

standard allows for a significant deviation from a zero efficiency gap, it also allows for a

significant deviation from the 2:1 ratio. Id. at ¶ 148.

Perhaps defendants mean to make a more subtle point, which is that the efficiency

gap is an improper measure simply because it treats a particular vote share to seat share ratio

as the “ideal” result. Again, however, the “ideal” result proposed by plaintiffs is the

situation in which no voter has an unfair advantage over another in obtaining representation

by the party of his or her choice. Defendants have not cited any authority that forecloses

plaintiffs’ view, but both parties should be prepared to present evidence on this point at trial.

Further, it is likely that objective standard for measuring partisan gerrymandering any

22

will have some connection to the basic principle that the collective will of the people should not be subverted indefinitely by an entrenched minority, a principle long recognized by the Supreme Court. Reynolds, 377 U.S. at 565 (“[L]egislatures . . . should be bodies which are collectively responsive to the popular will.”). As the plurality in Bandemer recognized, “a preference for a level of parity between votes and representation sufficient to ensure that significant minority voices are heard and that majorities are not consigned to minority status, is hardly an illegitimate extrapolation from our general majoritarian ethic and the objective of fair and adequate representation recognized in Reynolds.” Bandemer, 478 U.S. at 126 n.6. Opinions by other Justices reflect the same basic understanding. LULAC, 548 U.S. at 419 (opinion of Kennedy, J.) (“[A] congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority.”); LULAC, 548 U.S. at 467-68 (Stevens, J., concurring in part and dissenting in part) (districting plan is presumptively unconstitutional if equal share of votes for two parties produces large seat differential because in that case the plan “imposes . . . a significant disadvantage on a politically salient group of voters”); Vieth, 541 U.S. at 352 n.7 (Souter, J., dissenting) (“[T]he Constitution guarantees no right to proportional representation . . . It does not follow that the Constitution permits every state action intended to achieve any extreme form of disproportionate representation.”); Vieth, 541 U.S. at 360-61 (Breyer, J., dissenting) (gerrymandering that allows “a party that enjoys only minority support among the populace . . . to take, and hold, legislative power . . . violates basic democratic norms”).
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Perhaps at trial it will become clear that the efficiency gap cannot be reconciled with Supreme Court precedent. At this stage, however, we are not persuaded that defendants have made that showing.
c. Potential breadth of plaintiffs’ standard Defendants say that plaintiffs’ test is not “limited and precise” as Justice Kennedy
suggested it should be in Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment), because such a large number of state districting plans across the country have an efficiency gap of at least seven percent. According to plaintiffs’ own experts, approximately 20 to 25 percent of plans adopted by a party with unified control of the state government (both houses and the governorship) have an initial efficiency gap of seven percent or more. Plts.’ PFOF ¶¶ 69, 74, dkt. #79. (The parties agree that unified control of the government generally leads to an attempt to manipulate districts for partisan gain, though plaintiffs point to examples in which that is not the case. Id. at ¶¶ 76 and 172 (citing plans enacted under unified party control in California, Maine and Vermont that did not lead to partisan gerrymanders).)
As an initial matter, plaintiffs say that the 20 to 25 percent figure is inflated because it does not take into consideration plans that can be justified with neutral reasons. More generally, plaintiffs say that, to the extent there is a large number of suspect plans, that is not evidence of a weakness of their test, but evidence that “the practice of partisan gerrymandering is ubiquitous and very severe.” Trans., dkt. #89, at 76. They also argue
24

that federal courts invalidated many districting plans after recognizing other types of gerrymandering claims, so the potential effect of plaintiffs’ proposed standard on current districting plans should not be a reason to reject the standard. Plts.’ PFOF ¶¶ 77-78, dkt. #79 (citing Gary W. Cox & Jonathan N. Katz, Elbridge Gerry’s Salamander (2002), and Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights Act, 39 U. Mich. J.L. Reform 643, 655 (2006)).
Of course, plaintiffs are correct that courts cannot decline their duty to enforce the Constitution simply because a ruling may have far reaching effects. However, we agree with defendants that the usefulness of the efficiency gap as a tool for measuring partisan effect may be lessened if a large efficiency gap is a common feature of districting plans. A theme in a number of opinions by Supreme Court Justices is that court intervention in partisan gerrymandering cases should be limited to rare and extreme circumstances. E.g., Bandemer, 478 U.S. at 133 (plurality opinion) (raising concern that “a low threshold for legal action would invite attack on all or almost all reapportionment statutes”); Vieth, 541 U.S. at 339 (Stevens, J., dissenting) (proposing what he described as “a narrow test [that] would cover only a few meritorious claims, but . . . would preclude extreme abuses”); Vieth, 541 U.S. at 354 (Souter, J., dissenting) (courts should be able to “identify at least the worst cases of gerrymandering”); Vieth, 541 U.S. at 362 (Breyer, J., dissenting) (“Courts need not intervene often to prevent the kind of abuse I have described.”). This view could be undermined if we were to adopt a standard that rendered suspect a large swath of districting plans around the country.
25

Again, however, this objection is not a ground for granting summary judgment. As discussed above, the extent to which Wisconsin’s and other states’ efficiency gaps are caused by partisan bias is a disputed fact. If the facts at trial show that Wisconsin’s efficiency gap is caused by neutral factors, then it will not be necessary to determine the potential implications of a ruling in plaintiffs’ favor.
Further, this seems to be another objection that relates less to the validity of the efficiency gap as a general matter and more to the choice of how large an efficiency gap must be to sustain a constitutional claim. If plaintiffs’ proposed formulation is not sufficiently demanding, this may support raising the threshold necessary to support a claim. Another possibility would be to incorporate into plaintiffs’ prima facie case a requirement to show that any large efficiency gap cannot be justified by legitimate interests, possibilities the panel has not foreclosed.
Even if this court were to grant relief to plaintiffs, it might not be necessary to establish a threshold in this case. As plaintiffs point out, in the equal apportionment cases, the Supreme Court did not determine at first how large a population deviation must be in order to trigger a presumption of unconstitutionality. Rather, the Court proceeded on a case by case basis, settling on ten percent as the threshold only after several years. Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 890-91 (2015). Because plaintiffs allege in this case that the efficiency gap created by Act 43 is one of the largest in recent history, determining a threshold may be something that can wait for another day. Bandemer, 478 U.S. at 123 (“arithmetic
26

presumption” not necessary to adjudicate partisan gerrymandering claim).
2. Intent element Plaintiffs’ proposed element regarding intent requires them to prove that defendants
disadvantaged plaintiffs intentionally on the basis of political affiliation. Plts.' Br., dkt. #68, at 58. In their opening brief, defendants limited their discussion of this element to an argument that a requirement to prove intent did not help to overcome the alleged problems with the efficiency gap as a measure of discriminatory effect. They did not challenge the validity of the element itself. However, in their reply brief, defendants argued for the first time that “plaintiffs’ intent element is inconsistent with Supreme Court precedent” because it is not sufficiently demanding. Dfts.’ Reply Br., dkt. #73, at 3. In particular, defendants rely on the plurality opinion in Vieth, 541 U.S. at 286, for the view that “partisan districting is a lawful and common practice,” so that any successful partisan gerrymandering claim must show an “excess” of a partisan motive.
Because defendants did not raise this issue until their reply brief, we are not required to consider it. Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is entitled to find that an argument raised for the first time in a reply brief is forfeited.”). However, we will discuss some of the potential issues raised by this element to provide guidance at trial.
In attempting to craft an intent element in a partisan gerrymandering case, a litigant or a court must navigate the minefield of Supreme Court precedent on this issue. In Vieth,
27

541 U.S. at 284, the plurality rejected a partisan gerrymandering standard that required a

showing that the defendants acted with “a predominant intent to achieve partisan

advantage.” In LULAC, 548 U.S. at 418, the Court rejected a standard that required a

showing that partisan gain was the “sole motive” for the map’s design.

Perhaps cognizant of the Court’s skepticism of heightened intent requirements,

plaintiffs went back to Bandemer for their intent element. In that case, the plurality

required only a showing of an intent to discriminate against an identifiable political group.

Bandemer, 478 U.S. at 127 (plurality opinion). The plurality declined to adopt a more

demanding intent requirement, even though it acknowledged that, “[a]s long as redistricting

is done by a legislature, it should not be very difficult to prove that the likely political

consequences of the reapportionment were intended.” Id. at 128-29. In other words, the

assumption is that members of a particular party generally will try to benefit themselves and

hurt their adversaries.

In their opening brief, defendants seem to agree with the view that a heightened

intent requirement would be inconsistent with Supreme Court precedent. Dfts.’ Br., dkt.

#46, at 41 (“If the intent element calls for a more searching inquiry, then the standard fails

under Vieth” because “[t]he Vieth plurality and Justice Kennedy both rejected a standard

that incorporated a ‘predominant intent’ standard.”). Further, defendants did not directly

criticize the intent requirement in Bandemer anywhere in their briefs or during oral

argument. However, in their reply brief, defendants seem to suggest that a heightened intent

element is

by Vieth. Thus, defendants’ position now seems to be that there is

required

no

28

viable intent element for a partisan gerrymandering claim. Defendants reiterated that position during oral argument. When asked by the court what defendants believed the intent requirement should be, counsel stated, “I'm not sure that this is something that can be solved.” Trans., dkt. #89, at 7.
As discussed above, a majority of the Supreme Court has directed litigants and lower courts to continue searching for an appropriate standard for deciding partisan gerrymandering claims. In light of that directive, it would be inappropriate to interpret prior case law as rejecting all formulations of the intent requirement for those claims.
During oral argument, plaintiffs’ counsel stated her view that the Bandemer holding regarding intent remains controlling precedent, even after Veith and LULAC. Trans., dkt. #89, at 44. That view may be debatable, but the parties have not fully addressed that issue, so we believe that it would be premature to decide it now.
At least one Justice has questioned the constitutionality of any districting plan that disadvantages members of a particular party. Vieth, 541 U.S. at 324 (Stevens, J., dissenting) (“[T]he plurality errs in assuming that politics is ‘an ordinary and lawful motive.’ We have squarely rejected the notion that a ‘purpose to discriminate on the basis of politics’ is never subject to strict scrutiny.”) (citation omitted). However, a majority of the Justices in Vieth appeared to accept the view that “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied,” id. at 307 (Kennedy, J., concurring in the judgment). The plurality in Vieth identified the “excessive injection of politics” as the basis for a constitutional violation. Id. at 293
29

(plurality opinion). Justice Kennedy, however, was more circumspect; he noted that “[e]xcessiveness is not easily determined.” Id. at 316 (Kennedy, J., concurring in the judgment), and suggested focusing on evidence that a legislature’s plan is unrelated to neutral districting criteria. Id. at 312-13.
At oral argument, other alternative formulations of intent emerged. One suggestion was that plaintiffs show that defendants had the intent to prevent the minority party from regaining control throughout the life of the districting plan. Trans., dkt #89, at 5-6.
Accordingly, it would be inappropriate to grant summary judgment on this ground. That being said, plaintiffs will have the burden at trial to prove that defendants acted with discriminatory intent, so they should be prepared to present the strongest evidence that they have on this issue—including comparative evidence of prior redistricting plans in the State of Wisconsin—in order to meet even the most demanding intent requirement. Specifically, the parties should be prepared to address the evidence bearing on intent in light of the Justices’ concerns in Vieth, the discussion with this court at argument, and the parties own formulations on that element.
3. Burden shifting If plaintiffs prove discriminatory intent and effect in steps one and two, plaintiffs’
proposed test then shifts the burden to defendants to show that the large efficiency gap was “unavoidable” in light of the state’s political geography and legitimate districting objectives. In their opening brief, defendants’ primary objection to this portion of plaintiffs’ test was
30

really another objection to the efficiency gap. In particular, defendants argued that it was “fundamentally unfair” to shift the burden to defendants because the efficiency gap was not an adequate measure of discriminatory effect. Dfts.’ Br., dkt. #46, at 42. Because this is simply a repackaging of arguments that we have said we cannot resolve on a motion for summary judgment, it is unnecessary to consider this issue further.
In their reply brief, defendants argue that plaintiffs’ standard is unfair because it will be impossible to show that a particular efficiency gap was “unavoidable.” Rather, with the near-infinite number of ways to draw a plan, there will always be a way to “reverse-engineer a plan that has a better political result for one side while coming close in population deviation, compactness and municipal splits.” Dfts.’ Reply Br., dkt. #73, at 10. At oral argument, plaintiffs addressed this objection by stating that defendants would not “have to show that these particular district lines were absolutely necessary.” Trans., dkt. #89, at 60. Rather, defendants would have to show that any alternative plan would have “roughly the same kind of excessive . . . efficiency gap.” Id. We understand plaintiffs to mean that defendants would retain some flexibility in choosing how to draw district lines.
When asked at oral argument whether anyone on the Supreme Court had proposed a similar burden-shifting scheme as part of a partisan gerrymandering claim, plaintiffs’ counsel’s initial response was that no one had. Id. at 58. Instead, counsel stated that plaintiffs had adapted the burden-shifting portion of their standard from cases involving equal apportionment, such as Voinovich v. Quilter, 507 U.S. 146 (1993), Brown, 462 U.S. 835, and Connor v. Finch, 431 U.S. 407, 414 (1977). Id. at 63. However, later in the
31

argument, plaintiffs’ counsel stated that a similar burden-shifting standard could be found in the partisan gerrymandering context in the plurality’s opinion in Bandemer, in Justice Stevens’s opinion in Karcher v. Daggett, 462 U.S. 725 (1983), and in Justice Souter’s opinion in Vieth. Trans., dkt. #89, at 65.
The cases plaintiffs cite may support an argument that some type of burden-shifting is appropriate, but they do not support plaintiffs’ view that defendants must show that their plan was “unavoidable.” In Bandemer, 478 U.S. at 127-43, the plurality focused most of its opinion on the issue of discriminatory effect. Because the plurality found that the plaintiffs had not met their burden on that element, it did not have to go any further. However, in responding to Justice Powell’s dissenting opinion, the plurality stated that the various factors he proposed in his test “might well be relevant to an equal protection claim.” Bandemer, 478 U.S. at 141. The plurality elaborated, “[t]he equal protection argument would proceed along the following lines: If there were a discriminatory effect and a discriminatory intent, then the legislation would be examined for valid underpinnings.” Id. However, because the plurality “found that there was insufficient discriminatory effect to constitute an equal protection violation,” it “did not reach the question of the state interests (legitimate or otherwise) served by the particular districts as they were created by the legislature.” Id. at 141-42. Thus, although the plurality suggested that it would consider the state’s interests as part of any test, the plurality did not specify which party should shoulder the burden on that issue.
Plaintiffs are correct that Justice Stevens and Justice Souter both proposed a burden-
32

shifting standard for partisan gerrymandering claims, but neither of them proposed placing a burden on defendants as demanding as the one plaintiffs propose. In Karcher, 462 U.S. at 751, Justice Stevens stated that he “would consider whether the plan has a significant adverse impact on an identifiable political group, whether the plan has objective indicia of irregularity, and then, whether the State is able to produce convincing evidence that the plan nevertheless serves neutral, legitimate interests of the community as a whole.” Under Justice Souter’s standard, after the plaintiffs met their prima facie case, Justice Souter “would then shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage.” Vieth, 541 U.S. at 351 (Souter J., dissenting).
Neither Justice suggested that the defendants should be required to show that a plan was “unavoidable” in light of traditional districting criteria. In fact, under Justice Souter’s test, the plaintiffs would have to show as part of their prima facie case both that the legislature “paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly” and that the legislature could have drawn a fairer plan that “deviated less from traditional districting principles.” Vieth, 541 U.S. at 348 (Souter, J., dissenting). See also LULAC, 548 U.S. at 491 (Breyer, J., concurring in part and dissenting in part) (including evidence of “a radical departure from traditional boundary-drawing criteria” as part of plaintiffs’ prima facie case).
The equal apportionment cases plaintiffs cite are similar. After a plaintiff challenging population disparities in state legislative districts establishes her prima facie case, the burden shifts to the defendants to show that their plan is “justified.” Brown, 462 U.S. at 843. In
33

particular, the question is “whether the legislature's plan ‘may reasonably be said to advance

[a] rational state policy.’” Id. (quoting Mahan v. Howell, 410 U.S. 315, 328 (1973)). Again,

there is no requirement to show that the plan was “unavoidable.”

Plaintiffs’ proposed standard seems to be most similar to the one that applies to equal

apportionment requirements in

redistricting. In those cases, if the plaintiffs

congressional

meet their prima facie case, “the burden shifts to the State to ‘show with some specificity’

that the population differences ‘were

to achieve some legitimate state objective.’”

necessary

Tennant v. Jefferson County Commission, 133 S. Ct. 3, 5 (2012) (quoting Karcher, 462

U.S. at 740-41) (emphasis added). However, the Supreme Court has expressly declined to

adopt the “necessity” standard in the context of state legislative districting because the two

types of challenges are governed by different constitutional provisions, Article I, § 2 (with

respect to congressional districts) and the equal protection clause (with respect to state

legislative districts). Mahan, 410 U.S. at 321 (“[M]ore flexibility [i]s constitutionally

permissible with respect to state legislative reapportionment than in congressional

redistricting.”). Because plaintiffs in this case are relying on the equal protection clause

rather than Article I, § 2, the more lenient standard is more instructive.

Further, even with respect to congressional districts, the plaintiffs are required to

show as part of their prima facie case that “the population differences among districts could

have been reduced or eliminated altogether by a good-faith effort to draw districts of equal

population.” Karcher, 462 U.S. at 730. Under their proposed test, plaintiffs have burden no
to show that defendants could have drafted a better plan.

34

In sum, we believe that plaintiffs have overstated defendants’ burden in part three of their proposed test. However, this conclusion does not require summary judgment in defendants’ favor. As noted above, defendants have made no effort to justify the plan using neutral criteria. Thus, to the extent that defendants have any burden to prove the legitimacy of the plan, this element must be resolved at trial. Further, to the extent that plaintiffs have an initial burden to show that defendants’ plan cannot be justified using neutral criteria, we believe that plaintiffs have met that burden for the purpose of defendants’ motion for summary judgment by drafting a plan with a dramatically lower efficiency gap while still satisfying neutral criteria.
Again, because the parties have not fully briefed the question of how this element should be formulated, it would be premature to answer the question in this order. At trial, both sides should be prepared to submit whatever evidence they have to show whether Act 43 can be justified by neutral criteria.
ORDER IT IS ORDERED that 1. The motion for summary judgment filed by defendants Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas, Timothy Vocke and Kevin J. Kennedy, dkt. #45, is DENIED. 2. The motion filed by plaintiffs William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell,
35

James Seaton, Allison Seaton, Jerome Wallace and Don Winter to exclude the opinions of Sean Trende, dkt. #70, is DENIED WITHOUT PREJUDICE to plaintiffs’ refiling it at the conclusion of trial.
3. Trial will begin on Tuesday, May, 24, 2016 and should be completed by Friday, May 27, 2016. If the parties believe that is not a sufficient amount of time, they should explain their concerns in writing no later than April 18, 2016.
Entered this 7th day of April, 2016.
BY THE COURT: /s/ __________________________________ KENNETH F. RIPPLE Circuit Judge
/s/ __________________________________ BARBARA B. CRABB District Judge
/s/ __________________________________ WILLIAM C. GRIESBACH District Judge
36

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WILLIAM WHITFORD, ROGER ANCLAIM, EMILY BUNTING, MARY LUNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE AND DONALD WINTER,
Plaintiffs,

OPINION and ORDER 15-cv-421-bbc

v.

BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, STEVE KING, DON MILLIS, and MARK L. THOMSEN,

Defendants.1

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

1 As of June 30, 2016, the Government Accountability Board, the entity previously tasked with administering and enforcing Wisconsin’s election laws, ceased to exist and its authority, as it relates to this action, was transferred to the newly formed Elections Commission. See Wis. Act 118, 2015 Wis. Legis. Serv. 1104 (West). Prior to this transfer, the parties filed a stipulated motion to substitute the members of the Elections Commission for the members of the Government Accountability Board. We grant that motion and have substituted as defendants the members of the Elections Commission in their official capacity.

2
OPINION
Before RIPPLE, Circuit Judge, and CRABB and GRIESBACH, District Judges.
TABLE OF CONTENTS
I. Background .................................................................................................................3 A. Reapportionment in Wisconsin .........................................................................3 B. Drafting of Act 43.................................................................................................7 C. Prior Court Challenges to Act 43 ..................................................................... 16
II. Procedural History .................................................................................................. 16 A. Allegations of the Complaint ........................................................................... 16 B. Motion to Dismiss .............................................................................................. 19 C. Motion for Summary Judgment....................................................................... 20 D. Witnesses Testifying at Trial ............................................................................ 21 E. Post-Trial Briefing .............................................................................................. 28
III. The Legal Landscape ............................................................................................... 29 A. The Foundational Case Law ............................................................................. 31 B. Present Supreme Court Precedent................................................................... 34
IV. Elements of the Cause of Action ............................................................................ 55 A. Discriminatory Intent or Purpose.................................................................... 56 B. Discriminatory Effect of Act 43 ........................................................................ 74
V. Justification .............................................................................................................. 90 VI. Standing....................................................................................................................111 VII. Order .........................................................................................................................115
A. Remedy ...............................................................................................................115 B. Evidentiary Matters ..........................................................................................116 Appendices
RIPPLE, Circuit Judge. The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.

3
Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander. This opinion constitutes our findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1).
I BACKGROUND2
We begin our consideration of the plaintiffs’ claims by examining Wisconsin’s statutory requirements for redistricting as well as its recent redistricting history.
A. Reapportionment in Wisconsin 1. The State’s constitutional and statutory framework
Reapportionment of state legislative districts is a responsibility constitutionally vested in the state government. See, e.g., Growe v. Emison, 507 U.S. 25, 34 (1993) (citing U.S. Const. art I., § 2); Chapman v. Meier, 420 U.S. 1, 27 (1975). Although some states have chosen to avoid the problem of partisan gerrymandering by vesting this power in a neutral body designed specifically to perform that delicate function, see Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2661–62 & n.6 (2015), the people of Wisconsin have so far chosen to rely on its legislature to reapportion its districts after the decennial census. They have vested responsibility in the bicameral legislature composed of the Wisconsin State Senate and the Wisconsin State Assembly. Wis. Const. art. IV, §§ 1, 3. According to Wisconsin law, “[t]he state is divided into 33 senate districts, each composed of 3 assembly districts. Each senate district shall be entitled to elect one member of the senate. Each assembly district shall be entitled to elect one representative to the assembly.” Wis. Stat. § 4.001.
The Wisconsin Constitution directs the Wisconsin legislature, “[a]t its first session after each enumeration made by the authority of the United States,” to “apportion and district anew the members of the senate and assembly, according to the number of inhabitants.” Wis. Const. art. IV, § 3. The Wisconsin Constitution also imposes specific requirements for reapportionment plans. Assembly districts are “to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.” Id. § 4. With respect to political subdivisions, a
2 The reader will notice on occasion some repetition and cross-reference. We think this is necessary to ensure ease of comprehension to the first-time reader.

4
prior federal district court observed that, “[a]lthough avoiding the division of counties is no longer an inviolable principle, respect for the prerogatives of the Wisconsin Constitution dictate that wards and municipalities be kept whole where possible.” Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002), amended by 2002 WL 34127473 (E.D. Wis. July 11, 2002). The Wisconsin Constitution further requires that “no assembly district shall be divided in the formation of a senate district.” Wis. Const. art. IV, § 5.
In addition to the state constitutional requirements, the Wisconsin legislature must comply with federal law when redistricting. In particular, state legislatures must ensure that districts are approximately equal in population, so that they do not violate the “one-person, one-vote” principle embedded in the Equal Protection Clause of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“[T]he Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”); see also Brown v. Thomson, 462 U.S. 835, 842–43 (1983) (holding “that an apportionment plan with a maximum population deviation under 10%” is presumptively constitutional, while a population deviation larger than 10% must be justified by the state); Harris v. Arizona Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1306–07 (2016) (same). Further, states also must comply with § 2 of the Voting Rights Act of 1965, which focuses on preserving the voting power of minority groups. 52 U.S.C. § 10301; see also Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
Redistricting laws in Wisconsin are enacted, in large measure, in the same manner as other legislation, specifically, by way of bills originating in either house of the legislature, see Wis. Const. art. IV, § 19. Tad Ottman, aide to the Senate Majority Leader, explained in some detail this legislative process:
[L]egislators will work either on their own or with drafters or with a small group of people to develop legislation. Usually it’s developed among members of your own party, if not just the individual legislator. They create a proposal with the assistance of the Legislative Reference Bureau. At that point, the bill is often, but not always, circulated among other legislators to see if anybody else would want to sign on ….[3]
The bill is then circulated. At some point it is introduced. … And then once they are introduced, they are assigned to a committee. The committee chairman or chairwoman can choose to hold a public hearing on that piece of legislation. Most of the time a public hearing is held. …
3 Ottman noted that, regardless of the political party in power, “[t]ypically the first time the minority party, and frankly most of the majority party sees legislation, is when a bill is circulated.” R.148 at 53.

5
And then that legislation is forwarded to the full body, either the Senate or the Assembly, for debate and then it is passed over to the other House where a similar process occurs.[4]
A bill must then “be presented to the governor,” who can sign or veto the bill. Wis. Const. art. V, § 10.
The caucus system plays a significant role in the legislative process.5 Caucus meetings are held in the morning prior to the legislative session to vet legislation internally before a vote on the floor.6 Professor William Whitford, a named plaintiff and retired professor of law from the University of Wisconsin, testified that important “debate and discussion,” as well as the “vote[] that matters,” occur within the caucus meetings.7 “Once the party caucuses come to a majority result, the other members of the party are expected to follow the party line … .”8 Thus, it is “extremely difficult” to pass legislation through a bipartisan coalition.9
2. The modern history of reapportionment in Wisconsin
In the wake of the 1980 census, the plan that had been enacted in 1972 could no longer satisfy the constitutional requirement of “one-person one-vote.” See Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630, 631 (E.D. Wis. 1982). In response to these changes in population, a redistricting plan was drafted and enacted by the Wisconsin legislature, which had a Democratic majority, but it was vetoed by the Republican governor. Consequently, a federal district court was asked to devise a remedy. See id. at 632–33. Upon reviewing several plans submitted by legislators and interest groups, the court “reluctantly concluded” that it could “be more faithful to the goals of reapportionment” by drafting its own plan. Id. at 637. In doing so, the court focused on ensuring population equality, avoiding the dilution of racial minority voting strength, and keeping communities of interest together. Id. at 637–39. This “AFL-CIO Plan” remained in effect for one election in 1982. As a result of that election, the Democratic
4 Id. at 51–52. 5 Pursuant to Federal Rule of Evidence 201(b)(2), we take judicial notice of the legislative process in Wisconsin as set forth in Office of the Chief Clerk of the Wisconsin State Assembly, How a Bill Becomes Law (2016), https://legis.wisconsin.gov/assembly/acc/media/1106/howabillbecomeslaw.pdf. 6 See id. 7 R.147 at 33. 8 Id. 9 Id.

6
Party held control of both houses of the Wisconsin legislature and also gained the governor’s office.10 The legislature passed, and the governor signed, a new apportionment plan that lasted for the rest of the decennial period. See 1983 Wis. Sess. Laws 633.
Following the 1990 election, the Wisconsin government again was divided between two political parties. See Prosser v. Elections Bd., 793 F. Supp. 859, 862 (W.D. Wis. 1992). The Democratic Party controlled both houses of the Wisconsin legislature while the governor was a Republican. Id. “For that or other reasons, no bill to reapportion the legislature had been enacted into law” by January 1992, leading several Republican legislators to challenge the existing apportionment plan “as unconstitutional and violative of the Voting Rights Act.” Id. As a result, the federal court was asked to draft a new plan.
In an attempt to play a more limited role in the redistricting process, the court “asked the parties at the outset whether they had any objection … to [the court’s] selecting the best of the submitted plans rather than trying to create [its] own plan.” Id. at 865 (emphasis removed). Upon receiving these submissions, however, the court determined that the plans bore “the marks of their partisan origins.” Id. at 865. It therefore used parts of one Republican plan and one Democratic plan. The court plan preserved the strengths of the partisan plans, “primarily population equality and contiguity and compactness,” while “avoid[ing] their weaknesses.” Id. at 870. The plan remained in effect through the 2000 election.
Following the 2000 census, a divided Wisconsin legislature again was unable to agree upon a redistricting plan. Arrington v. Elections Bd., 173 F. Supp. 2d 856, 862 (E.D. Wis. 2001). In an ensuing law suit, the federal district court determined that “the existing Wisconsin Assembly and Senate districts,” which had not been redrawn since 1992, were “violative of the ‘one person, one vote’ standard.” Baumgart, 2002 WL 34127471, at *1. A new plan was therefore necessary. The court considered sixteen plans that had been submitted by legislators and other interest groups, but “found various unredeemable flaws” in all of them. Id. at *6. The court therefore drew a plan “in the most neutral way it could conceive—by taking the 1992 reapportionment plan as a template and adjusting it for population deviations.” Id. at *7. In making these changes, the court attempted to “maintain[] municipal boundaries and unit[e] communities of interest.” Id. The “Baumgart Plan” was in effect from 2002 until 2010.
10 Tr. Ex. 211, at 3.

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B. Drafting of Act 43
In 2010, for the first time in over forty years, the voters of Wisconsin elected a Republican majority in the Assembly, a Republican majority in the Senate, and a Republican Governor. This uniformity in control led the Republican leadership to conclude that a legislatively enacted redistricting plan was possible.
In January 2011, Scott Fitzgerald, Wisconsin Senate Majority Leader, and Jeff Fitzgerald, Speaker of the Wisconsin Assembly, retained attorney Eric McLeod and the law firm of Michael Best & Friedrich, LLP, to assist with the reapportionment of the state legislative districts.11 The firm supervised the work of Tad Ottman, staff member to Senate Majority Leader Fitzgerald; Adam Foltz, staff member to Speaker Fitzgerald; and Joseph Handrick, a consultant with the law firm Reinhart Boerner Van Deuren s.c., in planning, drafting, and negotiating the new districting plan. Ottman, Foltz, and later Handrick, worked in a room located in the offices of Michael Best & Friedrich, which they referred to as the “map room.”12
Ottman, Foltz, and Handrick also received assistance from Professor Ronald Keith Gaddie, a professor of political science at the University of Oklahoma. Michael Best & Friedrich had retained Professor Gaddie “as an independent advisor on the appropriate racial and/or political make-up of legislative and congressional districts in Wisconsin.”13 Professor Gaddie described his job as “devis[ing] measures and consult[ing] … about measures” of partisanship, compactness, “the integrity of counties, the integrity of city boundaries, the so-called good government principles of redistricting.”14 “Where [he] … spent most of [his] time was trying to disentangle the performance of the majority/minority districts in Milwaukee County.”15
A “significant part” of his work was “building a regression model to be able to test the partisan makeup and performance of districts as they might be configured in different ways.”16 As explained by one of the plaintiffs’ experts, Professor Kenneth Mayer, “[r]egression is a technique where we can seek to explain a dependent variable, the variable that we’re trying to account for. … [W]e attempt to explain the values that a dependent variable take[s] with what are called independent variables or
11 See R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 5, ¶ 20. 12 Id. at 7, ¶¶ 23, 26. 13 Tr. Ex. 169. 14 Tr. Ex. 161 (Gaddie Dep.), at 45. 15 Id. at 46. 16 Id.

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underlying causal variables.”17 In this instance, Professor Gaddie’s dependent variable was the baseline partisanship of a unit of geography, which then could be aggregated into different configurations of Assembly districts. In this way, Professor Gaddie was able to assess the partisanship of the Assembly maps that the drafters passed on to him for analysis.18 Professor Mayer testified that “the political science literature is essentially unanimous” that the approach taken by Professor Gaddie is “the appropriate method,”19 and Professor Mayer used the same methodology to construct his Demonstration Plan.20
Ottman, Foltz, and Handrick began drafting the map that would become Act 43 in April 2011, after they received census data from the Legislative Technology Services Bureau (“LTSB”).21 The LTSB also had provided them with computers loaded with the redistricting software, autoBound.22 Ottman described in detail how the software was used:
[Y]ou would open up a plan that you’d been working on or label a new plan and assign it the Assembly district that you wanted to work with and then you could also pick a color that you wanted that Assembly district to be. It’s sort of like a color-by-number exercise. …
You also determine what other layers that you want to look at on the screen. There were a number of different overlays that you have, anywhere from existing Senate and Assembly districts, … count[y] boundaries, municipal boundaries, ward boundaries all the way down to census block boundaries. As a practical matter what you tried to do is you would zoom in the region of your screen to the area that you’re looking at to the smallest amount that you could see and then have kind of the fewest layers displayed that you would need because the more information that you were requiring it to display slows down the computer speed a lot and makes it really slow to render.
… .
17 R.148 at 156–57. 18 See infra at 12–14. 19 R.148 at 152. 20 See infra at 107–08. 21 See R.148 at 68–69. 22 See id. at 62.

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And then what you would do is there were a couple different ways that you could add population to the district.[23]
Ottman further explained that, in more populated areas, the drafters worked more at the ward level: “So you would have the wards displayed and you would literally draw a circle, click on it, and it would assign it to the map and fill it in.”24 “In other parts of the state … you might do that at the county level because it’s so sparsely populated so you’d grab three or four counties at [a] time.”25
When the drafters would increase the area size of the districts that they were drawing, autoBound provided demographic information for the area that the drafter had included, such as the number of people in the district, the deviation from the ideal population, voting-age population, and different minority group populations.26 It also allowed the user to include “customized … demographic data.”27
One piece of “customized demographic data” employed by the drafters was a composite partisan score. From the time that Ottman, Foltz, and Handrick received the census data from the LTSB, they worked to develop a composite partisan score that accurately reflected the political make-up of the population units.28 Having this measure was necessary so that, when they aggregated those units into new districts, they could assess the partisan make-up of the new district they had drawn. On April 19, 2011, they developed a composite of “all statewide races from [20]04 to 2010” that “seem[ed] to work well.”29 They sent this composite measure to Professor Gaddie, who tested it against his regression model. Professor Gaddie confirmed to Handrick that “the partisanship proxy you are using (all races) is an almost perfect proxy for the open
23 Id. at 72–73. 24 Id. at 73. 25 Id. at 74. In the early stages, the drafters worked “almost exclusively in the City of Milwaukee.” Id. at 75. Ottman explained that
[w]e knew there were going to be more redistricting criteria, including … the voting rights application that was going to apply there. … [W]e wanted to kind of get those Milwaukee districts drawn in such a way that the lawyers advised us was kind of in a good place and then we just kind of wanted to lock that in and leave it alone before we drew the rest of the map. Id. at 75. 26 See id. at 63–64. 27 Id. at 64. 28 See Tr. Ex. 175, at 1–2. 29 Id. at 2.

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seat vote, and the best proxy you’ll come up with.”30 Once Professor Gaddie confirmed the usefulness of their composite measure, Ottman, Foltz, and Handrick could “assess the partisan impact of the map[s] that [they] drew.”31
Although Ottman, Foltz, and Handrick worked in the same room at Michael Best & Friedrich, they worked independently on their own maps. They drew several statewide maps, and even more regional maps from which the legislative leadership eventually would choose. As they drew the maps, they would ensure that the districts were “close-to-ideal population.”32 They did an “eyeball test” for “compactness and contiguousness.”33 They “looked at … what the core of the existing district was compared to the new district,” “looked at municipalities that were split,” whether the new district had changed Senate districts, and “where incumbents lived.”34
The drafters were attentive to traditional districting criteria like population equality, compactness, and municipal splits throughout the drafting process. When the drafters had created a statewide map with which they were satisfied, they would export the district-by-district partisanship scores from autoBound into a spreadsheet for that “finalized” “statewide” plan.35
The drafters used their composite score to evaluate the statewide maps that they had drawn based on the level of partisan advantage that they provided to Republicans. In many instances, the names of the maps reflected the level of partisan advantage achieved by the districting plan; for instance, there are maps labeled “Assertive” and
30 Id. at 1. 31 See R.147 at 61; R.148 at 16–17. The drafters’ “partisanship proxy” and Professor Gaddie’s “open seat vote” measure of partisanship, Tr. Ex. 175, at 1, correlated almost “identical[ly]” with the “open-seat baseline model” that Professor Mayer developed by way of a regression analysis and that he used to construct his Demonstration Plan. R.148 at 191; see also infra at 24. 32 R.148 at 83. 33 Id. 34 Id. at 85–86. Ottman testified that where incumbents lived “matter[s] because in the end this was a map that we were going to ask the Legislature to vote for and we knew that that was one of the considerations that was going to be very important to the people being asked to vote for this.” Id. at 86. 35 R.147 at 162 (Foltz testifying that once “you get a statewide plan finalized, all 99 assembly districts,” “you can then take that composite column from auto[B]ound and then move it over into those Excel spreadsheets that I was talking about earlier”); R.148 at 14 (Ottman testifying that the partisan performance spreadsheet was “one of the reports that was generated on any statewide map that we laid down”).

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“Aggressive.”36 Foltz testified that “aggressive” in this context meant “probably that [the map] was a more aggressive map with regard to GOP leaning.”37
The drafters created spreadsheets which collected the partisan scores, by district, for each of the statewide map alternatives. Each spreadsheet included a corresponding table comparing the partisan performance of the draft plan to the prior map drawn by the Baumgart court, which they called the “Current Map.” These performance comparisons were made on the following criteria: “Safe” Republican seats, “Lean” Republican seats, “Swing” seats, “Safe” Democratic seats, and “Lean” Democratic seats.38
The process of drafting and evaluating these alternative district maps spanned several months. In early April 2011, the drafters produced a document comparing the partisan performance of the Current Map to two early draft maps: Joe’s Basemap Basic and Joe’s Basemap Assertive.39 Under the Current Map, the drafters anticipated that the Republicans would win 49 Assembly seats.40 This number increased to 52 under the Joe’s Basemap Basic map and to 56 under the Joe’s Basemap Assertive map.41 The number of safe and leaning Republican seats increased from 40 under the Current Map to 45 under the Joe’s Basemap Basic map and 49 under the Joe’s Basemap Assertive map; the number of swing seats decreased from 19 to 14 to 12.42 The number of safe and
36 See, e.g., R.148 at 30. During the drafting process, Ottman met with individual senators to review with them the census numbers for their district, to verify their addresses, and to ask general questions about their districts, such as “are there areas you like, are there areas you don’t like, are there areas surrounding your district that you like.” Id. at 81. Ottman also received a few requests from Senators concerning their districts. Senator Vukmir provided specific suggestions on how her district could be re-drawn to take the seat away from a Democratic member of the Assembly: “If you need a way to take the Staskunas seat, put a little bit of my Senate seat into New Berlin (2–3 wards could make that a GOP Assembly seat).” Tr. Ex. 239. However, because Senator Vukmir’s district encompassed Milwaukee, the drafters could not implement the suggestion because “there was simply less flexibility in how [they] could draw that district than in some other areas of the state.” R.148 at 82. 37 R.147 at 65. 38 See, e.g., Tr. Ex. 364; see also R.148 at 15 (Ottman testifying about these criteria). 39 Tr. Ex. 465; see also Tr. Ex. 476 (sorting districts by Republican vote share). 40 Tr. Exs. 465, 467. 41 Tr. Exs. 465, 467. 42 Tr. Ex. 465.

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leaning Democratic seats, however, remained roughly the same under all three maps, hovering between 38 and 40.43
The drafters prepared and evaluated the partisan performance of at least another six statewide alternative maps.44 Each of these maps improved upon the anticipated pro-Republican advantage generated in the initial two draft plans. The total number of safe and leaning Republican seats now ranged between 51 and 54, and the number of swing seats was decreased to between 6 and 11.45 The number of safe and leaning Democratic seats again remained about the same under each draft map, ranging between 37 and 39.46
The drafters sent their completed draft maps to Professor Gaddie for further analysis. For each map, Professor Gaddie created an “S” curve—a “visual aide[] to demonstrate the partisan structure of Wisconsin politics.”47 These “S” curves show how each map would operate within an array of electoral outcomes.48
The “S” curves give a visual depiction of how each party’s vote share (on the x axis), ranging from 40% to 60%, relates to the number of Assembly seats that party likely will secure (on the y axis). Democratic seats are depicted by shades of blue, and Republican seats by shades of red.49 To produce the “S” curves, Professor Gaddie first used his regression analysis to calculate the expected partisan vote shares for each new district.50 He then shifted the vote share of each district ten points in either direction, from 40% to 60%, and assigned a color to districts that “tend[ed]” towards, or were “safe” seats, for that party.51 The “S” curves—at least some of which were printed in large format and kept in the map room—allowed a non-statistician, by mere visual inspection, to assess the partisan performance of a particular map under all likely
43 Id. 44 These were: Milwaukee_Gaddie_4_16_11_V1_B (Tr. Ex. 172, at 1); Statewide2_Milwaukee_Gaddie_ 4_16_V1_B (Tr. Ex. 172, at 2); Tad MayQandD (Tr. Exs. 364, 477); Joe Assertive (Tr. Exs. 366, 478); Tad Aggressive (Tr. Ex. 283); and Adam Aggressive (Tr. Ex. 283). See generally Tr. Ex. 225 (containing metadata from the drafters’ computers). 45 Tr. Exs. 172, 364, 366. 46 Tr. Exs. 172, 364, 366. 47 Tr. Ex. 134; see Tr. Exs. 263–82. 48 Tr. Ex. 161 (Gaddie Dep.), at 44–45. 49 A partial “S” curve for the “Team Map,” see infra at 69, is attached as Appendix 1 to this opinion. 50 Tr. Ex. 161 (Gaddie Dep.), at 44–47; see also supra at 7–8. 51 Tr. Ex. 161 (Gaddie Dep.), at 128.

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electoral scenarios. On one occasion, Senator Fitzgerald came to the map room, and Professor Gaddie showed him one of the large printouts of the “S” curves and “basically explain[ed] how to interpret” them.52
Not long after Professor Gaddie had performed his analyses, the Republican legislative leadership contacted the drafters and indicated that they wanted to be prepared to act on a redistricting plan. Over several days in early June, the drafters presented a selection of regional maps drawn from their statewide drafts, approximately three to four per region, to the Republican leadership. Along with these regional alternatives, the leadership “saw the partisan scores for the maps that [the drafters] presented to them in those alternatives.”53 Foltz testified during his deposition that, although he could not recall a particular example, he was sure that he was asked by the leadership about the partisan performance of the various regional options.54
Following this meeting, the drafters amalgamated the regional alternatives chosen by the leadership. Foltz testified that “the draft map called team map emerged as a result of the … leadership’s choices at those meetings.”55 Under the Team Map, which was also referred to as the “Final Map,”56 the Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.57 In a document bearing the heading “Tale of the Tape,”58 the drafters, among other things, compared the partisan
52 Id. at 75.
53 R.148 at 20.
54 Tr. Ex. 191, at 106.
55 R.147 at 80.
56 Foltz testified that if the “Team Map” “[wa]sn’t the final one that was pushed, put forward in the public domain, it was very close to it, and it was the result of that mashing process of taking the various regional alternatives and putting them all together.” Id. at 165; see also infra note 68 (discussing changes made after the regional maps were amalgamated). He explained that the “Final Map” was the one “after the leaders got together and made the regional decisions and they were then merged together.” R.147 at 62. If it was not identical to the map that “ultimately became Act 43, it[ wa]s probably fairly close.” Id.; see also Tr. Ex. 172, at 3–4 (showing partisan performance of the Final Map).
57 The drafters in fact produced and evaluated several distinct versions of the Team Map, but each rendition is virtually identical. See Tr. Ex. 172, at 3–4 (Final Map); Tr. Ex. 467, at 1 (Team Map (Joe Aggressive)); id. at 2 (Team Map Ranking (Joe Aggressive 2)); id. at 3 (Team Map (6-15-11)). 58 It is unclear who titled this document “Tale of the Tape,” see R.148 at 33 (Ottman testifying that he “did not create that title” and was “not sure what it signifies”); Ottman did testify, however, that he had “heard the expression” as it “refer[red] … in boxing matches[] [to] pre-fight measurements of the boxer’s reach,” id. at 34.

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performance of the Team Map directly to the Current Map on each of these criteria.59 They highlighted specifically that under the Current Map, 49 seats are “50% or better” for Republicans, but under the Team Map, “59 Assembly seats are 50% or better.”60
The Team Map underwent even more intense partisan scrutiny in a document identified as “summary.xlsx.”61 The drafters divided the new Team Map districts into six categories of partisan performance, listing beside each district its “new incumbent” and its Republican vote share under the Current Map and the Team Map.62 The drafters considered five districts to be “Statistical Pick Up[s],” meaning they were currently held by a Democratic incumbent but likely to become Republican; they grouped fourteen districts under the heading “GOP seats strengthened a lot”; they designated eleven districts “GOP seats strengthened a little”; they labeled three districts as “GOP seats weakened a little”; they considered another three GOP districts “likely lost”; and, finally, they identified four districts where the Democrats were “weakened.”63 The drafters also listed the twenty Republican Assembly members who, under the Team Map, could be considered “GOP Donors to the Team”: “Incumbents with numbers above 55% that donate[d] to the team.”64 These representatives stood in contrast to “GOP non-donors,” who were Republican incumbents with “over 55% who d[id] not donate points.”65
The Team Map was then sent to Professor Gaddie, who conducted an “S” curve analysis. The Team Map demonstrated that Republicans would maintain a majority under any likely voting scenario; indeed, they would maintain a 54 seat majority while garnering only 48% of the statewide vote. The Democrats, by contrast, would need 54% of the statewide vote to capture a majority.66
Once the map had been finalized, Foltz presented each Republican member of the Assembly with information on his or her new district. The memos prepared for the Assembly members informed them whether the district number had changed, whether adjustment to the district population was necessary based on the census numbers, and
59 Tr. Ex. 283. 60 Id. 61 Tr. Ex. 284, at 1. 62 Id. 63 Id. 64 Id.; see also infra note 221 (discussing meaning of “Donors to the Team”). 65 Tr. Ex. 283. 66 Tr. Ex. 282.

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provided a “[c]omparison of [k]ey [r]aces” in the new district compared to the old.67 Specifically, the memorandum detailed what percentage of the population in the old and new districts voted for Republican candidates in representative statewide and national elections held since 2004. This information also was provided in terms of raw votes. The memoranda did not provide the individual legislators with any information about contiguity, compactness, or core population.
Ottman engaged in a similar process with Republican members of the State Senate.68 For each meeting, he created a talking-points memo that included information about population, where changes in the district’s population had occurred, and the geography of the new district.69 These also contained information on how the re-configured district had voted in national and statewide elections.70
Ottman also made a presentation to the Republican caucus. His notes for that meeting state: “The maps we pass will determine who’s here 10 years from now,” and “[w]e have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.”71
On July 11, 2011, the redistricting plan was introduced by the Committee on Senate Organization.72 On July 13, 2011, a public hearing was held, during which Ottman and Foltz presented the plan and fielded questions.73 The Senate and Assembly passed the bill on July 19, 2011, and July 20, 2011, respectively. The Governor signed the bill, and it was published as Wisconsin Act 43 on August 23, 2011.74
67 Tr. Ex. 342. 68 Foltz and Ottman both testified that, as a result of these meetings, there were only slight changes made to the Assembly map; specifically, in response to concerns articulated by Senator Mike Ellis, they “redrew the Assembly boundaries a little bit” within his district. R.148 at 111; see also R.147 at 185–86. No other changes were made in response to these meetings. 69 See, e.g., Tr. Ex. 242 at 1 (“Added East Troy and part of the town, as well as Mukwonago.”). 70 See id. at 1 (noting, for example, that “Scott Walker won this new seat with 64.2%,” “McCain won with 51.5%,” and “Van Hollen 06 won with 59.4%”). 71 Tr. Ex. 241, at 1. 72 R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 24, ¶ 85. 73 Id. ¶ 86; Tr. Ex. 353. 74 R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 24, ¶ 86.
Another important legislative measure, enacted around the time of the drafting and passage of Act 43, bears mentioning. Act 39, enacted on July 25, 2011, and published on August 8, 2011, permits the legislature to draw new districts before Wisconsin’s municipalities draw their ward lines. The longstanding practice in Wisconsin had been that municipalities drew their ward lines first, and the

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C. Prior Court Challenges to Act 43
Even before Act 43 was passed, two actions were brought challenging the plan on constitutional and statutory grounds, including under Section 2 of the Voting Rights Act. See Baldus v. Members of the Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 846–47 (E.D. Wis. 2012). The court consolidated the actions for decision and concluded that the plan did not violate the “one-person, one-vote” principle, nor did it violate the Equal Protection Clause by “disenfranchise[ing]” voters who were moved to a new Senate district and were unable to vote for their state senator for another two years. Id. at 849– 51, 852–53. However, the court did find that the plaintiffs were entitled to relief on their claim that Act 43 violated the Voting Rights Act by diluting the voting power of Latino voters in Milwaukee County, and it ordered the State to redraw these districts. Id. at 859. The remainder of Act 43, however, remained intact and governed the 2012 and 2014 Assembly elections.
In 2012, the Republican Party received 48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the Wisconsin Assembly.75 In 2014, the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats.76
II PROCEDURAL HISTORY
A. Allegations of the Complaint
We now turn to the dispute before this court. Plaintiffs William Whitford, Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, James Seaton, Allison Seaton, Jerome Wallace, and Don Winter are United States citizens registered to vote in Wisconsin. They reside in various counties and legislative districts throughout Wisconsin. All of them are “supporters of the Democratic party and of Democratic candidates and they almost
legislature drew districts based on the new wards. See R.148 at 123–24 (Ottman testifying to same). Following Act 39’s passage, wards are drawn in response to the districts, rather than the other way around. In the absence of Act 39, the legislature would have had to postpone its drafting effort by several months until the municipalities adopted their ward boundaries. 75 R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 70, ¶ 289; id. at 69, ¶ 285. These percentages are based on the calculations of plaintiffs’ expert, Professor Simon Jackman. The defendants have not contested the accuracy of these figures, and we accept them as accurate. 76 Id. at 70, ¶ 290.

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always vote for Democratic candidates in Wisconsin elections.”77 Defendants are Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Don Millis, and Mark L. Thomsen, each in his or her official capacity as a member of the Wisconsin Elections Commission.
According to the plaintiffs, in drafting Act 43, the Republicans employed two gerrymandering techniques: “cracking”—“dividing a party’s supporters among multiple districts so that they fall short of a majority in each one”—and “packing”— “concentrating one party’s backers in a few districts that they win by overwhelming margins,”78 in order to dilute the votes of Democrats statewide. This “cracking and packing result[ed] in ‘wasted’ votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needs to prevail (in the case of packing).”79 They therefore urge the court to adopt a new measure for assessing the discriminatory effect of political gerrymanders—the efficiency gap (or “EG”). “The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.”80 When two parties waste votes at an identical rate, a plan’s EG is equal to zero. An EG in favor of one party, however, means that the party wasted votes at a lower rate than the opposing party. It is in this sense that the EG arguably is a measure of efficiency: Because the party with a favorable EG wasted fewer votes than its opponent, it was able to translate, with greater ease, its share of the total votes cast in the election into legislative seats. In short, the complaint alleges that Act 43 purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while
77 Id. at 3, ¶ 2. 78 R.1 at 3, ¶ 5; see also infra at 81.
79 R.1 at 3, ¶ 5. “Wasted” is merely a term of art used to describe votes cast for losing candidates and votes cast for winning candidates in excess of 50% plus one; the term is not meant to suggest that the votes are worthless. See infra note 267 and accompanying text. 80 R.1 at 3, ¶ 5; see also infra at 81. The plaintiffs provided the following example:
Suppose … that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties’ respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.
R.1 at 15, ¶ 50.

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purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.
The plaintiffs’ complaint incorporated the EG into a proposed three-part test for partisan gerrymandering. First, plaintiffs would have to establish that a State had an intent to gerrymander for partisan advantage. Second, the plaintiffs would need to prove a partisan effect, by proving that the EG for a plan exceeds a certain numerical threshold (which the plaintiffs proposed, based on historical analysis, to be 7%).81 If a plan exceeds that threshold, the plaintiffs asserted that it should be presumptively unconstitutional. Third, and finally, the plaintiffs placed the burden on the defendants to rebut the presumption by showing that the plan “is the necessary result of a legitimate state policy, or inevitable given the state’s underlying political geography.”82 If the state is unable to rebut the presumption, then the plan is unconstitutional.
The plaintiffs alleged that they had satisfied all of these elements. According to the complaint, Act 43 “was drafted and enacted with the specific intent to maximize the electoral advantage of Republicans and harm Democrats to the greatest possible extent.”83 Additionally, Act 43 “produced a pro-Republican efficiency gap of 13% in 2012 and 10% in 2014.”84 They further claimed that this EG is unjustified because one of their experts, Professor Mayer, had crafted a “Demonstration Plan” with “an efficiency gap of just 2% in 2012,” which “perform[ed] at least as well as [Act 43] on every other relevant metric.”85
For these reasons, plaintiffs claimed that Act 43 “treats voters unequally, diluting their voting power based on their political beliefs, in violation of the Fourteenth Amendment’s guarantee of equal protection,” and “unreasonably burdens their First Amendment rights of association and free speech.”86 They requested a declaration that Act 43 is unconstitutional, an injunction prohibiting further elections under the map, and the drawing of a new redistricting map.87
81 The plaintiffs’ proposed threshold is based on the analysis of one of their experts, Professor Simon Jackman. See infra at 25–27, 83–84. 82 R.1 at 25, ¶ 84. 83 Id. at 9, ¶ 31. 84 Id. at 16, ¶ 55. 85 Id. at 23–24, ¶¶ 78–79 (emphasis removed); see also infra at 24. 86 R.1 at 2, ¶ 2. 87 Id. at 29, ¶¶ 97–99.

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B. Motion to Dismiss
The defendants filed a motion to dismiss on August 18, 2015, which contended that the court could not grant relief for three primary reasons. First, the defendants argued that the EG was directly analogous to the proportional-representation standard rejected by the Supreme Court in Vieth v. Jubelirer, 541 U.S. 267, 287–88 (2004).88 Second, the defendants argued that the EG failed to account for the impact of traditional districting criteria like contiguity and compactness. Finally, the defendants argued that the plaintiffs lacked the standing to challenge Act 43 on a statewide basis, and instead could only challenge their individual districts.
In an order dated December 17, 2015, we denied defendants’ motion to dismiss. We first noted that the claim was justiciable, and that, “[u]ntil a majority of the Supreme Court rules otherwise, lower courts must continue to search for a judicially manageable standard.”89 We acknowledged the defendants’ argument that the EG was analogous to a proportionality standard, but noted that the plaintiffs’ experts disagreed with the defendants’ contention and that factfinding therefore was needed. We concluded that “[a] determination whether plaintiffs’ proposed standard is judicially manageable relies at least in part on the validity of plaintiffs’ expert opinions” and that a more developed record would be necessary to resolve that question.90 Finally, we concluded that the plaintiffs had standing, explaining that “[b]ecause plaintiffs’ alleged injury in this case relates to their statewide representation, it follows that they should be permitted to bring a statewide claim.”91 We noted, however, that the defendants were “free to raise this issue again on a more developed record.”92
88 The defendants pointed to Professor Jackman’s report, which employs a “simplified method” for calculating the EG:
EG = S − .5 − 2(V − .5) R.34 at 18. In this equation, “S” is the party’s expected seat share and “V” is the party’s expected vote share. The “simplified method” implies that for 1% of the vote a party obtains above 50%, the party would be expected to earn 2% more of the seats (what is called a “winner’s bonus”). It is this direct correlation between seat and vote share that, the defendants maintained, ran afoul of Vieth v. Jubelirer, 541 U.S. 267, 287–88 (2004). 89 R.43 at 9. 90 Id. at 23. 91 Id. at 13. 92 Id. at 15.

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C. Motion for Summary Judgment
Defendants subsequently filed a motion for summary judgment, raising new challenges to the plaintiffs’ claims.93 In the motion, the defendants argued that the EG metric was overinclusive and captured several plans—including court-drawn plans in Wisconsin—that were not drawn with any partisan intent. Furthermore Democratic voters tended to live in cities, which created a “natural packing” effect and distorted the EG.94
The defendants acknowledged the plaintiffs’ argument that a requirement of partisan intent could remedy this over-inclusivity problem, but noted that the intent element was not sufficiently demanding. The defendants contended that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.”95 The intent element proposed by the plaintiffs was, therefore, “meaningless,”96 and the Supreme Court’s decision in Vieth already had ruled out the more demanding standard of “predominant intent.” See 541 U.S. at 284–86 (plurality opinion); id. at 308 (Kennedy, J., concurring).
The defendants levied two additional criticisms of the plaintiffs’ test. First, they noted that the plaintiffs’ “Demonstration Plan” was based on a counterfactual scenario and therefore failed to address concerns raised by some Justices about a standard which dealt with a “hypothetical state of affairs.”97 Second, they alleged that the EG is highly sensitive to “vote-switchers” in swing districts.98 Had voters in close (or competitive) elections voted for the other party, and had a few candidates of the other party won those seats, then the EG might be dramatically different. In their view, a plan that included such competitive districts could be found unconstitutional under the plaintiffs’ proposed standard.
We denied the motion for summary judgment. We explained that judgment “as a matter of law would be premature because there [we]re factual disputes regarding the
93 See R.45; R.46. 94 R.46 at 38. 95 Id. at 41 (quoting Davis v. Bandemer, 478 U.S. 109, 129 (1986) (plurality opinion) (alteration in original) (internal quotation marks omitted)). 96 Id. 97 Id. at 48 (quoting League of United Latin American Citizens v. Perry (“LULAC”), 548 U.S. 399, 420 (2006) (opinion of Kennedy, J.) (internal quotation marks omitted)). 98 Id.

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validity of plaintiffs’ proposed measurement.”99 We also noted that there was conflicting evidence on the “natural packing” of Democrats in Wisconsin.100 We further observed that the defendants’ arguments might serve as “a suggestion to alter the threshold of the plaintiffs’ test and, perhaps, shift the burdens of production or proof.”101 In particular, we left open the question of the requisite level of intent and directed the plaintiffs to “be prepared to present the strongest evidence that they have on this issue … in order to meet even the most demanding intent requirement.”102 We therefore set the case for trial.
D. Witnesses Testifying at Trial During the four-day trial, from May 24, 2016, through May 28, 2016, the parties
presented their cases through eight witnesses. Some of the testimony of the witnesses involved in the passage of Act 43 has been set forth above, so it is not necessary to summarize it again here. An overview of the remaining testimony is set forth below.103
1. William Whitford First to testify was William Whitford, one of the plaintiffs in this litigation and a resident of the 76th Assembly District.104 Professor Whitford testified to his long-time affiliation with the Democratic Party. He related that he consistently has voted for Democratic candidates, has made donations to Democratic Assembly candidates outside of his own district, has raised money on their behalf, and has donated to the Assembly Democratic Campaign Committee.105 According to Professor Whitford, given Wisconsin’s caucus system, “[t]he only practical way to accomplish [his] policy objectives is to get a majority of the Democrats in the Assembly and the Senate,” which is “virtually impossible under this apportionment [plan].”106
99 R.94 at 2. 100 Id. at 14–17. 101 Id. at 16. 102 Id. at 30. 103 A more complete treatment of the experts’ opinions are set forth in Parts IV and V. 104 R.147 at 29. 105 Id. at 31, 39. 106 Id. at 33–34.

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2. Ronald Keith Gaddie
Professor Gaddie was deposed by the plaintiffs on March 9, 2016, and a video of that deposition was admitted into evidence and played at trial. As explained in some detail above,107 Professor Gaddie testified that he was retained by Michael Best & Friedrich on April 11, 2011, to “serv[e] as an independent advisor on the appropriate racial and/or political make-up of legislative and congressional districts in Wisconsin.”108 In particular, Professor Gaddie took “the electoral data … and constructed a regression analysis … in order to create an estimate of the vote performance of every district.”109 He explained that this analysis “could be used to create a set of visual aids to demonstrate the partisan structure of Wisconsin politics.”110
As noted above, Professor Gaddie’s regression analysis was employed to confirm the validity of the composite measure developed by Foltz, Ottman, and Handrick. Professor Gaddie also used his regression analysis to assess each of the drafters’ proposed maps and to create “S” curves to illustrate how the Republican seat share would change based on changes in the party’s statewide vote share.111 In Professor Gaddie’s words, the “S” curves were “designed to tease out a potential estimated vote for the legislator in the district and then allow you to also look at that and say, okay, what if the Democrats have a good year? What if the Republicans have a good year? How does it shift?”112 At least some of the “S” curves were printed and kept in the map room at Michael Best & Friedrich; in print form, the “S” curves were large enough to “cover half th[e] table.”113
3. Adam Foltz
Foltz worked as a legislative aide for Speaker Fitzgerald and served as one of the primary drafters of Act 43. 114 One additional aspect of Foltz’s testimony at trial,
107 See supra at 7–10, 12–14. 108 Tr. Ex. 169, at 1; see also Tr. Ex. 161 (Gaddie Dep.), at 69–70. 109 Tr. Ex. 161 (Gaddie Dep.), at 98. 110 Id. 111 See id. at 101. Specifically, the “S” curves give a visual depiction of how each party’s vote share (on the x axis) relates to the number of Assembly seats that party likely will secure (on the y axis). See supra at 12 (discussing “S” curves in detail) and infra at Appendix 1 (depicting partial “S” curve). 112 Id. 113 Id. at 107. 114 See supra at 7–15.

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however, is worthy of note. His testimony revealed a shortcoming in the drafters’ composite partisan measure. Specifically, the composite score likely was skewed to show a greater Republican advantage because of an error in the data for the 2006 Governor’s race (one of the components of the composite score). As a result of this error, the partisan estimates in the drafters’ spreadsheets were distorted and differed from the estimates reached by Professor Gaddie in his “S” curves. Foltz testified that he had not noticed this discrepancy at the time of drafting. He explained that, at the time, he “didn’t spend a whole lot of time with” Professor Gaddie so he “[did]n’t really understand the nuts and bolts” of the “S” curves.115
4. Tad Ottman
Ottman testified to his involvement in the drafting and passage of Act 43.116
115 R.147 at 65–66. 116 See supra at 7–15. The third individual involved in the drafting process, Joseph Handrick, did not testify at trial and was not deposed by counsel in this case. However, Handrick was deposed multiple times in Baldus v. Members of the Wisconsin Government Accountability Board, 849 F. Supp. 2d 840 (E.D. Wis. 2012), and his depositions were admitted into the record here. Handrick is a former state legislator who was involved in Wisconsin’s reapportionment in 1991, 2001, and 2011—first as a staffer to the assemblyman chairing the committee, then as an independent consultant, and, in 2011, as an employee of the law firm of Reinhart Boerner Van Dueren, which was retained by Michael Best & Friedrich.
Handrick’s deposition testimony largely conforms with the trial testimony of Foltz and Ottman, with a few notable exceptions. Handrick described himself as a “nonpartisan consultant,” Tr. Ex. 311 (Handrick Dep. 2/1/12), at 351, and denied seeking to achieve any partisan advantage in the drafting process, Tr. Ex. 290 (Handrick Dep. 12/20/11), at 125. Handrick did not recall being provided with any data on voting results from past elections. Tr. Ex. 311, at 332. He testified instead that his role was limited to evaluating completed maps solely on the bases of “[p]opulation[] deviation, municipal splits, [and] contiguity.” Tr. Ex. 290, at 57.
Notably, Handrick was presented with an account of his role in previous Wisconsin redistricting cycles in a book written by Professor Gaddie. The book described Handrick as a “talented artisan of electoral maps” who “was contracted as an independent consultant, working through the law firm representing the assembly in redistricting, to develop legislative maps that would stand up to a high degree of scrutiny by the courts and that would also be favorable to Republicans.” Id. at 73–74. When asked if he agreed with this description, Handrick responded, “I don’t disagree.” Id. at 74. Similarly, Handrick was asked about a particular quote attributed to him in the book: “When they sat me down at the [computer] terminal, I just had a knack for being able to see how to craft the kind of districts they wanted, with the right political skew and in a fashion that would be attractive to a court.” Id. at 71. Handrick was asked if this quotation was accurate, to which he responded, “I presume it is.” Id.

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5. Kenneth Mayer
Kenneth Mayer, a professor of political science at the University of Wisconsin, served as an expert witness for the plaintiffs. His ultimate goal was to design an alternative districting plan to Act 43 “that had an efficiency gap as low to zero as I could get it” while also complying with traditional districting criteria to the same extent as Act 43.117 He first created a regression model that estimated partisanship for each geographic area, so that he could compare his plan to Act 43. To ensure the model was accurate, Professor Mayer compared the predictions made by his regression model to the actual results in 2012. Once he was confident in his model, Professor Mayer “used a GIS redistricting program called Maptitude … to … complete the task of actually drawing the Assembly district map.”118
Professor Mayer’s alternative “Demonstration Plan” yields a 2.2% EG in favor of the Republicans, compared to an 11.69% EG yielded by Act 43.119 According to Professor Mayer, “[o]n all constitutional requirements, the Demonstration Plan is comparable to Act 43.”120 On cross-examination, however, the defendants pointed out that Professor Mayer did not take account of incumbents when drawing the plan.121 As a result, his plan paired a greater number of incumbents than Act 43, including one pairing in a majority-minority district.122 Further, Professor Mayer had not drawn any Senate districts, and therefore had not taken account of disenfranchisement.123
117 R.148 at 146. 118 Id. at 151; see also infra at 107–08.
119 R.148 at 180–81. Professor Mayer and Professor Jackman calculate the EG in different ways. Professor Jackman’s analysis is a “simplified method,” see supra note 88, which looks at the percentage of vote and the percentage of seats. Alternatively, Professor Mayer calculates the EG by “generat[ing] estimates for the number of Democratic and Republican votes that were cast in each district and … used that to calculate the number of surplus and lost votes.” R.148 at 179. The differences in these calculations will be discussed in more detail infra at IV.B.3.
120 Tr. Ex. 2, at 38.
121 R.149 at 112. 122 Id. at 113. 123 Id. at 118–19. As explained by the Court in Baldus v. Members of Wisconsin Government Accountability Board, 849 F. Supp. 2d 840, 852 (E.D. Wis. 2012), disenfranchisement occurs because,
[p]ursuant to Wisconsin Constitution Article IV, section 5, state senators serve four-year, staggered terms with half of the senators elected in presidential years and the other half during midterm years. The redistricting plan shifts voters among senate districts in a manner that causes certain voters who previously resided in an even-number district (which votes in presidential years) to be moved to an odd-numbered district (which

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In addition to discussing the Demonstration Plan, Professor Mayer responded to points made by the defendants’ experts in their reports. Specifically, Professor Mayer testified that he had conducted a sensitivity analysis to address concerns about the effect of “wave” elections—elections that that dramatically favor one party—on the EG calculations for both the Demonstration Plan and Act 43. He first looked over the last twenty years of elections in Wisconsin and found the greatest and smallest statewide vote shares for each party.124 Using these vote shares as the likely electoral spectrum, he performed a swing analysis where the Democrats received an additional 3% of the statewide vote (compared to their 2012 share) and the Republicans received an additional 5% of the statewide vote (again compared to their 2012 share) “to see what effect that would have on [his] efficiency gap calculations for the Demonstration Plan.”125 Professor Mayer’s analysis revealed that the Demonstration Plan’s EG remained below 4%, regardless of the swing.126 Act 43’s EG, however, increased during a Democratic swing but significantly decreased during a Republican swing. Professor Mayer noted that this is because “we’ve swung the Republican vote percentage up to 54 percent” but “[t]he number of [Republican] seats doesn’t change.”127 In Professor Mayer’s view, the result “is a confirmation that the bias in Act 43 is about the maximum that you can get.”128
6. Simon Jackman
Simon Jackman, a professor of political science and statistics at Stanford University, also served as an expert witness for the plaintiffs. Professor Jackman primarily testified about the reliability and practicability of the EG. He conducted a survey of 786 state legislative elections (under 206 different districting plans) in the United States between 1972 and the present day, in order to ascertain whether there was
votes in mid-term years); this shift means that instead of voting for a state senator in 2012, as they would have done, they must wait until 2014 to have a voice in the composition of the State Senate. 124 R.148 at 225. “[T]he largest statewide vote share that the Democrats received in Assembly elections was in 2006 and it was 54.2 percent, 54—it was 54 and change. And the smallest statewide vote share that the Democrats received was about 46 percent and we saw that in 2010.” Id. 125 Id. 126 Id. at 228. 127 Id. at 229. 128 Id.

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a baseline EG which should “trigger scrutiny” and also to compare Act 43 to other redistricting plans.129
Professor Jackman sought to determine how much the EG varied from election year to election year, and whether a districting plan had any impact on that EG. Professor Jackman presented a “scatterplot,” which graphed the relationship between the EG in the first election year of a redistricting plan (set forth on the x axis) and the average EG over the lifetime of the plan (set forth on the y axis).130 He found a “relatively strong predictive relationship,” meaning that a high EG in the first year of a redistricting plan likely means that the EG will remain high for the lifetime of the plan.131
Based on his research, Professor Jackman proposed that an EG of 7% or higher should be legally significant:
I arrived at 7 percent because that seemed to be a reasonable threshold for saying yes, if the first election under a plan produces an efficiency gap score at least that big, then you can be confident now that you’ve seen not just a one-off, but something that’s going to persist over the life of the plan as a signal of — a reliable signal as to the set of efficiency gap scores and the average efficiency gap score you might see if the plan were allowed to run.[132]
In other words, an EG of 7% in favor of one party in the first election year of a plan almost certainly means that the EG will favor that same party in each subsequent election year under that plan.
Professor Jackman noted that the EGs for the 2012 and 2014 races in Wisconsin— 13% and 10%, respectively—were particularly high by historical levels. The EG in 2012 was, according to Professor Jackman, “among the largest scores we’ve seen anywhere” and “in the top 3 percent in terms of magnitude.”133 Act 43’s average EG ranked fifth out of the 206 plans that Professor Jackman surveyed.134 He testified that he was
129 R.149 at 150, 200. 130 Id. at 209–10; Tr. Ex. 83, at 17. 131 R.149 at 210. 132 Id. at 209. 133 Id. at 225. 134 Id. at 227.

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“virtually certain” that “Act 43 will exhibit a large and durable advantage in favor of Republicans over the rest of the decade.”135
7. Sean Trende136
Sean Trende, Senior Elections Analyst for the website RealClearPolitics, served as an expert witness for the defendants. Mr. Trende primarily testified on the political geography of Wisconsin and its potential effect on the EG.
Mr. Trende explained that, as a general matter, political geography of the United States currently favors Republicans. In his view, the Democratic coalition has contracted geographically and is now concentrated heavily in urban areas. This concentration, in turn, has hurt the Democratic Party in congressional elections, which tend to favor parties with wider geographic reach.137
Mr. Trende also testified to the political geography of Wisconsin itself, which he analyzed using a measure called the “partisan index” (“PI”). The purpose of the PI is “to determine the partisan lean of political units,”138 in order to “compare results across elections.”139 Mr. Trende explained that the county and ward PI values within Wisconsin have shifted such that the Democratic Party’s influence was strengthening in areas “that already leaned Democratic,” but was contracting geographically.140
Mr. Trende then applied his PI analysis to Wisconsin’s wards in what he referred to as a “nearest neighbor” analysis, which assessed the median distance between heavily Democratic wards compared to the median distance between heavily Republican wards.141 From this analysis, Mr. Trende concluded that it has “become[] progressively harder to draw … Democratic districts elsewhere in the state,” which in
135 Id. at 233. 136 Mr. Trende’s report and testimony was the subject of a motion in limine. We address this motion in Part V of our opinion. 137 Mr. Trende demonstrated this theory using color-coded maps illustrating the 1996, 2004, and 2008 presidential vote results by county in Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Tennessee, Kentucky, and Virginia. Tr. Ex. 547, at 17. Over the three election cycles, the number of counties shaded blue (indicating that a majority of the county voted for the Democratic presidential candidate) decreased, and the number of red counties increased. See id. 138 R.150 at 19. 139 Tr. Ex. 547, at 20. 140 Id. at 26. 141 R.150 at 60.

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his view explained at least some of the EG.142 However, he did not determine exactly how much of the EG was attributable to geography.143
8. Nicholas Goedert Nicholas Goedert, a visiting professor of political science at Lafayette College, was retained by the defendants to offer opinions on using the EG to measure partisan gerrymandering. Professor Goedert’s main objection to the EG was its perceived volatility. In Professor Goedert’s view, “wave elections are the norm,” meaning that “much more often than not one party wins by 5 percent or more” of the vote.144 Therefore, relying on an EG from one election year, which might have taken place during a close election, might not be reliable. Professor Goedert opined that, “at a very minimum, … you need to have some sort of robust sensitivity testing that would be codified if you were going to use the efficiency gap in any way.”145 Professor Goedert also raised a series of policy concerns. First, he pointed out that the EG measure arguably rests on a “2-to-1” vote-to-seats ratio and therefore a certain standard of proportionality.146 He also noted that there are “normatively good reasons why a state might cho[ose] to draw a map in a certain way and even under these normatively good reasons we could and actually do observe very high efficien[cy] gaps.”147 For example, Professor Goedert noted that some states may wish to create a more proportional system or encourage competitive elections.148 In his view, states might be discouraged from pursuing these policy goals if the court adopted the EG as the standard for partisan gerrymandering.
E. Post-Trial Briefing Both parties filed post-trial briefs, which summarized their views of the case in
light of the evidence presented at trial. The plaintiffs contended that they satisfied their
142 Id. at 64. 143 Id. at 98. 144 Id. at 175. 145 Id. at 176. 146 Id. at 163–64; see also infra at 82 (explaining 2-to-1 ratio). 147 Id. at 162–63. 148 Id. at 165–70.

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proposed three-part test by proving discriminatory intent, discriminatory effect, and an absence of a justification for that effect. On intent, the plaintiffs focused in particular on the alternative maps that the drafters rejected, the “S” curves drawn by Professor Gaddie, and memos written by Foltz and Ottman. On effect, the plaintiffs stressed that the EG was not only likely to favor Republicans for the lifetime of the plan, but that it also was likely to stay relatively high. The plaintiffs also highlighted the sensitivity testing that had been conducted by Professors Jackman and Mayer. On justification, the plaintiffs pointed out that the previous Assembly maps in Wisconsin, the alternative plans drafted by the defendants, and Professor Mayer’s Demonstration Plan all exhibited lower EGs while arguably complying as well with traditional districting criteria.149
In response, the defendants contended that “a plan that complies with all neutral districting criteria, and whose efficiency gap is consistent with prior court-drawn plans” cannot be unconstitutional.150 The defendants noted that Act 43’s districts were congruent, compact, and fairly equal in population. Further, much of the secrecy surrounding Act 43’s enactment was consistent with how bills typically are enacted in Wisconsin. The defendants also pointed to evidence that the political geography in Wisconsin favors Republicans, which they contend explains the trend in EGs towards that party over the past two decades. In the defendants’ view, this evidence also illustrates the unreliability of the EG. The defendants concluded that the plaintiffs had not presented enough of a reason for a court to intervene in the redistricting process.
We express our appreciation to both parties for their thorough and informative presentation, and now turn to the legal principles that must guide our analysis of the case.
III THE LEGAL LANDSCAPE
The plaintiffs’ claim is that Act 43 violates their First and Fourteenth Amendment rights because it discriminates against Democratic voters by diminishing the strength of their votes in comparison to their Republican counterparts.
149 The plaintiffs also discussed alternative maps drawn by Professor Jowei Chen, who wrote an article that the plaintiffs have moved to admit into evidence. The defendants have challenged the admissibility of Professor Chen’s article on hearsay grounds. We shall address those arguments infra note 350. 150 R.153 at 1.

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We note, as a prefatory matter, that we have acknowledged, throughout this litigation, that the plaintiffs’ standing to maintain a cause of action is a threshold issue. See, e.g., Tierney v. Advocate Health and Hosps. Corp., 797 F.3d 449, 450 (7th Cir. 2015). Indeed, in our disposition of the defendants’ motion to dismiss, we addressed extensively standing and “conclude[d] that plaintiffs’ alleged injury [wa]s sufficiently concrete and particularized under current law to satisfy Lujan [v. Defenders of Wildlife, 504 U.S. 555 (1992),] with respect to a statewide challenge to the districting plan.”151 “We reach[ed] the same conclusion with respect to [Lujan’s] second and third elements of standing, which are causation and redressability.”152 We noted, though, that the “defendants [we]re free to raise this issue again on a more developed record.”153
Lujan explains that, because the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” 504 U.S. at 561. Our assessment of the evidence, as well as our elucidation of the political gerrymandering cause of action, therefore will inform our standing analysis. Consequently, we postpone a plenary discussion of standing until we fully have set forth the evidence as well as the constitutional standard.154 As a precursor, however, we conclude that the plaintiffs have established a concrete and particularized injury: “[a]s a result of the statewide partisan gerrymandering, Democrats do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly. As a result, the electoral influence of plaintiffs and other Democratic voters statewide has been unfairly [and] disproportionately … reduced” for the life of Act 43.155 Additionally, the plaintiffs have shown causation: Act 43 was designed with the purpose of solidifying Republican control of the legislature for the decennial period and, indeed, has had that effect. Finally, the plaintiffs have established that their injury is redressable: adopting a different statewide districting map would redress the constitutional violation by removing the state-imposed impediment on Democratic voters.156
In resolving the plaintiffs’ claim, we face a significant analytical problem. Although the Supreme Court’s political gerrymandering cases establish that “an
151 R.43 at 11. 152 Id. at 14. 153 Id. at 15. 154 See infra Part VI. 155 R.1 at 6–7, ¶ 16; see also infra at 112-13. 156 See infra at 113.

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excessive injection of politics is unlawful,” Vieth, 541 U.S. at 293 (plurality opinion) (emphasis removed), the Court has not come to rest on a single, judicially manageable or discernible test for determining when the line between “acceptable” and “excessive” has been crossed. Indeed, a signature feature of these cases is that no single opinion has garnered a majority of the Court.
But the absence of a well-trodden path does not relieve us of the obligation to render a decision. True, we cannot anticipate that the Court will alter course from the decisional law, however sparse, that currently exists. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (noting that lower courts should apply outstanding precedent until explicitly overruled by the Supreme Court). Nor can we cobble together the opinions of the various Justices who have written on the matter and call the resulting amalgam binding precedent. See Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) (noting that lower courts should follow precedent despite expressed dissatisfaction by various members of the Court until the precedent is overruled explicitly). Nevertheless, understanding that we are in an area where the navigational signs are not yet well-placed, we must decide the case before us and satisfy our “duty … to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), or at least what we believe it to be.
We begin by examining the cases that set forth the constitutional principles which later informed the Court’s political gerrymandering decisions.
A. The Foundational Case Law 1.
Over half a century ago, the Supreme Court recognized that the constitutionality of legislative apportionments is governed by the Equal Protection Clause of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533 (1964). Reynolds was not a political gerrymandering case, but addressed allegations that an outdated apportionment scheme resulted in “serious discrimination with respect to the allocation of legislative representation” in violation of the Equal Protection Clause. Id. at 540. Nevertheless, the Supreme Court spoke to the importance and nature of the right to vote in terms that also inform our consideration of the plaintiffs’ claims.
The Court first observed that the right to vote “is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Id. at 561–62. The Court explained that “[m]ost citizens” exercise their “inalienable right to full and effective participation in the political process” by voting

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for their elected representatives. Id. at 565. “Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.” Id. Moreover,
the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. Id.
The Court explained, however, that the requirement of equal treatment was not limited to where a voter resided. Instead, “[a]ny suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment.” Id. (emphasis added). The Court therefore concluded that,
[s]ince the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, … the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status. Id. at 565–66 (citations omitted).157 Reynolds therefore establishes that, in electing state representatives, the votes of citizens must be weighted equally. If an apportionment scheme violates the principle of one-person, one-vote, it must be justified on the basis of other, permissible, legislative considerations.
157 In Reynolds v. Sims, 377 U.S. 533, 577 (1964), the Court required “that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable.” Later cases set a 10% threshold: an apportionment plan with a maximum population deviation between the largest and smallest district of 10% is presumptively constitutional; larger disparities create a prima facie case of discrimination, and the State must justify its plan. See Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016); Mahan v. Howell, 410 U.S. 315, 329 (1973) (approving an apportionment plan with a deviation of 16% in light of the State’s interest in “maintaining the integrity of political subdivision lines”).

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2.
The Court soon had the opportunity to apply the principles set forth in Reynolds to allegations of vote-dilution brought by racial minorities. In Fortson v. Dorsey, 379 U.S. 433 (1965), the Court considered the constitutionality of an apportionment scheme which included traditional single-member districts and multimember districts, where citizens reside in a comparatively larger district and vote for multiple representatives. Voters alleged that these multimember districts were “defective because county-wide voting in multi-district counties could, as a matter of mathematics, result in the nullification of the unanimous choice of the voters of a district.” Id. at 437. The district court granted summary judgment to the plaintiffs, finding that the statute was unconstitutional on its face.
The Supreme Court disagreed that such districts were unconstitutional per se, and it declined to strike the plan. The Court acknowledged, however, that “[i]t might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Id. at 439 (emphasis added). The Court, therefore, remanded for factfinding to determine whether the plaintiffs could meet this burden.
Following Fortson, the Court has held that multimember districts violate the Constitution when the plaintiffs have produced evidence that an election was “not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” White v. Regester, 412 U.S. 755, 766 (1973).
Later cases refined the methodology by which courts evaluate claims of vote dilution. In Rogers v. Lodge, 458 U.S. 613 (1982), Burke County, Georgia, employed an at-large system of elections to determine its Board of Commissioners, rather than dividing the county into districts and allowing each district to choose a commissioner. Id. at 615. African-American citizens in that county brought an action in which they alleged that the county’s system of at-large elections violated their First, Thirteenth, Fourteenth, and Fifteenth Amendment rights by diluting their voting power. The district court held that, although the at-large electoral system was neutral in origin, it was being maintained for invidious purposes and therefore ordered the county to be divided into districts for purposes of electing commissioners.
The Supreme Court affirmed. It explained that districts violate the Equal Protection Clause when “‘conceived or operated as purposeful devices to further racial discrimination’ by minimizing, cancelling out or diluting the voting strength of” minority populations. Id. at 617. These cases “are thus subject to the standard of proof

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generally applicable to Equal Protection Clause cases,” specifically the “‘quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.’” Id. (quoting Washington v. Davis, 426 U.S. 229, 240 (1976)). Discriminatory intent, however, “need not be proved by direct evidence,” but may be “‘inferred from the totality of the relevant facts.’” Id. at 618 (quoting Washington, 426 U.S. at 242).
Applying this standard, the Court “decline[d] to overturn the essential finding of the District Court … that the at-large system … ha[d] been maintained for the purpose of denying blacks equal access to the political processes in the county.” Id. at 627. Evidence of discriminatory purpose included the fact that no African American ever had been elected despite “overwhelming evidence of bloc voting along racial lines.” Id. at 623–24. There also was evidence of historical discrimination in the form of literacy tests, poll taxes, and school segregation, id. at 624–25; of a disparity in socio-economic status that “result[ed] in part from the lingering effects of past discrimination,” id. at 626 (internal quotation marks omitted); and of county elected officials’ unresponsiveness and insensitivity to African-American constituents, see id. at 625–26.158
Although focused on racially discriminatory apportionment schemes, Fortson and subsequent vote-dilution cases establish that Equal Protection concerns arise when apportionment plans “minimize or cancel out the voting strength” either of racial minorities or, as we have here, “political elements of the voting population.” 379 U.S. at 439 (emphasis added). Moreover, they instruct that vote-dilution cases are governed by the same standards as other equal-protection claims, namely the plaintiffs must establish both a discriminatory intent and a discriminatory effect.
B. Present Supreme Court Precedent 1.
The Court drew heavily from the Fortson line of cases in resolving the political gerrymandering claim asserted in Gaffney v. Cummings, 412 U.S. 735 (1973). In Gaffney,
158 Shortly after the Court’s decision in Rogers v. Lodge, 458 U.S. 613 (1982), Congress amended Section 2 of the Voting Rights Act to prohibit apportionment schemes that result in the dilution of the voting strength of minorities, regardless of intent. 52 U.S.C. § 10301. Consequently, the Court now addresses vote dilution through the Voting Rights Act rather than the Constitution. See, e.g., LULAC, 548 U.S. at 423–35; Voinovich v. Quilter, 507 U.S. 146, 155 (1993); Thornburg v. Gingles, 478 U.S. 30, 34 (1986). However, the Court still recognizes the validity of Fortson and its progeny. See, e.g., Shaw v. Reno, 509 U.S. 630, 649 (1993) (noting that it has “considered the constitutionality of” multimember districting and at-large voting systems and has “required plaintiffs to demonstrate that the challenged practice has the purpose and effect of diluting a racial group’s voting strength”).

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the Connecticut Apportionment Board created a redistricting plan designed to yield Democratic and Republican seats in proportion to the statewide vote. A three-judge district court invalidated the plan on the ground that the deviations from equality of population in both houses were not “justified by any sufficient state interest,” “[m]ore particularly, … that the policy of partisan political structuring … cannot be approved as a legitimate reason for violating the requirement of numerical equality of population in districting.” Id. at 740 (internal quotation marks omitted).
The Supreme Court reversed. In its analysis, the Supreme Court acknowledged that “[s]tate legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment”; it stated:
A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” We must, therefore, respond to appellees’ claims in this case that even if acceptable populationwise, the Apportionment Board’s plan was invidiously discriminatory because a “political fairness principle” was followed in making up the districts in both the House and Senate. Id. at 751–52 (citations omitted).
The Court, however, was “unconvinced” that the plan violated the Fourteenth Amendment. Id. at 752. The Court observed that Connecticut’s Apportionment Board had sought to “achieve a rough approximation of the statewide political strengths of the Democratic and Republican parties,” by implementing a “political fairness” plan. Id. (internal quotation marks omitted). The Court saw no constitutional impediment to the State’s considering partisan interests in this way. Id. at 752–53.
The Court made clear, however, that the drawing of legislative districts along political lines “is not wholly exempt from judicial scrutiny under the Fourteenth Amendment.” Id. at 754. Relying on its vote-dilution cases, it gave as an example “multimember districts [that] may be vulnerable” to constitutional challenges “if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.” Id. “Beyond this,” the Court continued, it had “not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.” Id.
In closing, however, the Court was careful to distinguish the plan before it, which employed political classifications for benign—even salutary—purposes, with plans that did not have proportional representation as their aim:

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[N]either we nor the district courts have a constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State. Id. (emphasis added). In sum, the Court reiterated that its concern was invidious discrimination by the State; absent the plaintiffs’ establishing an intent to dilute the strength of a particular group or party, the Equal Protection Clause was not offended.
2. The Court next addressed partisan gerrymandering in Davis v. Bandemer, 478 U.S. 109 (1986). Because Bandemer was the first case in which a party directly raised, and the Court squarely addressed, a claim that a legislative redistricting plan invidiously discriminated against members of a political party, we treat it in some depth. In Bandemer, Indiana Democrats challenged the 1981 state reapportionment plan passed by a Republican-controlled legislature. Specifically, they alleged that the plan was intended to disadvantage Democrats in electing representatives of their choosing, in violation of the Equal Protection Clause under the Fourteenth Amendment. In November 1982, before the case went to trial, elections were held under the new plan. The district court had “sustained an equal protection challenge to Indiana’s 1981 state apportionment on the basis that the law unconstitutionally diluted the votes of Indiana Democrats,” id. at 113 (plurality opinion), but the Supreme Court reversed. A majority of the Court159 first concluded that the issue before the Court, like those in the one-person, one-vote cases and in the vote-dilution cases, “is one of representation” and “decline[d] to hold that such claims [we]re never justiciable.” Id. at 124. “As Gaffney demonstrates,” the Court continued, the fact that a “claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability.” Id. at 125. That the complaining group does not share an “immutable” characteristic or otherwise “has not been subject to the same historical stigma may be relevant to the manner in which the case is adjudicated, but these differences do not justify a refusal to entertain such a case.” Id.
159 The majority consisted of the Justices in the plurality (White, Brennan, Marshall, and Blackmun) and Justices Powell and Stevens, who concurred in part and dissented in part.

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Turning to the standard to be applied, a majority of the Court agreed that the “plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id. at 127.160 A majority of the Court also believed that the first requirement—intentional discrimination against an identifiable group—had been met. See id. (citing Mobile v. Bolden, 446 U.S. 55, 67–68 (1980)).161 Indeed, it observed that, “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” Id. at 129.
The plurality, however, rejected “the District Court’s legal and factual bases for concluding that the 1981 Act visited a sufficiently adverse effect on the appellees’ constitutionally protected rights to make out a violation of the Equal Protection Clause.” Id. at 129. It was not the case that “any apportionment scheme that purposely prevents proportional representation is unconstitutional.” Id. at 129–30 (emphasis added). Indeed, the plurality noted that precedent “clearly foreclose[d] any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id. at 130 (first citing Whitcomb v. Chavis, 403 U.S. 124, 153 (1971); then citing White, 412 U.S. at 765–68).
Moreover, the plurality held “that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of
160 Justices Powell and Stevens concurred in this aspect of the plurality’s opinion. See Davis v. Bandemer, 478 U.S. 109, 161 (1986) (Powell, J., concurring in part and dissenting in part).
161 Justice Powell described the process that led the Court to this conclusion:
In 1981, the Republican Party controlled both houses of the Indiana General Assembly, and its candidate held the Governor’s seat. Pursuant to the requirements of the State Constitution, the General Assembly undertook legislative redistricting based on 1980 census data. A Conference Committee, all of whose members were Republicans, was assigned the task of drawing district maps with the assistance of a private computer firm. The information fed into the computer primarily concerned the political complexion of the State’s precincts. The redistricting process was conducted in secret. Democratic legislators were not afforded any participation in designing the district maps that were adopted. There were no hearings where members of the public were invited to express their views. The Republican Committee revealed its proposed redistricting plan two days before the end of the legislative session, and the Democrats hurriedly presented an alternative plan. On the last day of the session, the Republican plan was adopted by party line vote in both Houses of the General Assembly. The Governor signed the plan into law. Id. at 162–63 (Powell, J., concurring in part and dissenting in part).

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its choice” also did “not render that scheme constitutionally infirm.” Id. at 131. In reaching this conclusion, it noted that the Court had refused to approve the use of multimember districts “[o]nly where there [wa]s evidence that excluded groups ha[d] ‘less opportunity to participate in the political processes and to elect candidates of their choice.’” Id. (quoting Rogers, 458 U.S. at 624). It emphasized that “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole”:
[A]n equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process. Id. at 132–33.
Applying this standard to the facts before them, the plurality concluded that “this threshold condition” had not been met. Id. at 134. It observed that the district court had relied “primarily on the results of the 1982 elections” in which Democratic candidates had garnered “51.9% of the votes cast statewide,” but secured only 43 seats. Id. Republicans, however, had received only “48.1% … yet, of the 100 seats to be filled, Republican candidates won 57.” Id.162 “Relying on a single election to prove unconstitutional discrimination,” however, was “unsatisfactory.” Id. at 135. The plurality specifically noted a lack of evidence that (1) the 1981 Act prevented the Democrats from “secur[ing] … sufficient vote[s] to take control of the assembly”; (2) “the 1981 reapportionment would consign the Democrats to a minority status in the Assembly throughout the 1980’s”; or (3) “the Democrats would have no hope of doing any better in the reapportionment that would occur after the 1990 census.” Id. at 135–36. “Without findings of this nature,” the plurality stated, “the District Court erred in concluding that the 1981 Act violated the Equal Protection Clause.” Id. at 136.
The plurality then addressed a few aspects of Justice Powell’s opinion. “[T]he crux of [his] analysis” was that—“at least in some cases—the intentional drawing of district boundaries for partisan ends and for no other reason violates the Equal Protection Clause.” Id. at 138. It disagreed that “the specific intention of disadvantaging
162 “In the Senate, 53.1% of the votes were cast for Democratic candidates and 46.9% for Republicans; of the 25 Senate seats to be filled, Republicans won 12 and Democrats 13.” Id. at 134 (plurality opinion). The district court also had “relied upon the use of multimember districts in Marion and Allen Counties, where Democrats or those inclined to vote Democratic in 1982 amounted to 46.6% of the population of those counties but Republicans won 86%–18 of 21–seats allocated to the districts in those counties.” Id.

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one political party’s election prospects,” standing alone, established a constitutional violation. Id. at 139. Instead, invidious intent must be coupled with evidence that “the redistricting d[id] in fact disadvantage [a party] at the polls,” and the disadvantage must be more than “a mere lack of proportionate results in one election.” Id. The plurality, however, acknowledged that “election results” were “relevant to a showing of the effects required to prove a political gerrymandering claim under our view. And the district configurations may be combined with vote projections to predict future election results,” which also would be relevant to showing discriminatory effects. Id. at 141.
The plurality recognized that its own test “may be difficult of application.” Id. at 142. “Nevertheless,” it concluded, the test “recognizes the delicacy of intruding on this most political of legislative functions and is at the same time consistent with our prior cases regarding individual multimember districts, which have formulated a parallel standard.” Id. at 143.
Justice O’Connor, joined by Chief Justice Burger and Justice Rehnquist, concurred in the judgment, but wrote separately. Justice O’Connor took issue with the plurality’s reliance on both the “one-person, one-vote” principle and the Court’s vote-dilution cases. Id. at 146–55 (O’Connor, J., concurring). In her view,
Reynolds makes plain that the one person, one vote principle safeguards the individual’s right to vote, not the interests of political groups: “To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote.”
Id. at 149–50 (quoting Reynolds, 377 U.S. at 567) (emphasis added). Justice O’Connor also viewed political gerrymandering as distinct from racial gerrymandering. She explained that, “where a racial minority group is characterized by ‘the traditional indicia of suspectness’ and is vulnerable to exclusion from the political process, individual voters who belong to that group enjoy some measure of protection against intentional dilution of their group voting strength by means of racial gerrymandering.” Id. at 151 (citations omitted). “[M]embers of the Democratic and Republican Parties,” however, did not constitute “a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the Court has offered no reason to believe that they are incapable of fending for themselves through the political process.” Id. at 152 (emphasis in original).
In an opinion concurring in part and dissenting in part, Justice Powell, joined by Justice Stevens, concluded that a redistricting plan violated the Constitution when it served “no purpose other than to favor one segment—whether racial, ethnic, religious, economic, or political—that may occupy a position of strength at a particular time, or to disadvantage a politically weak segment of the community.” Id. at 164 (internal

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quotation marks omitted) (quoting Karcher v. Daggett, 462 U.S. 725, 748 (1983) (Stevens, J., concurring in part and dissenting in part)). He believed that this conclusion followed from the principles articulated in Reynolds, namely “that equal protection encompasses a guarantee of equal representation, requiring a State to seek to achieve through redistricting ‘fair and effective representation for all citizens.’” Id. at 166 (quoting Reynolds, 377 U.S. at 565–66). He further explained that
[t]he concept of “representation” necessarily applies to groups: groups of voters elect representatives, individual voters do not. Gross population disparities violate the mandate of equal representation by denying voters residing in heavily populated districts, as a group, the opportunity to elect the number of representatives to which their voting strength otherwise would entitle them. While population disparities do dilute the weight of individual votes, their discriminatory effect is felt only when those individual votes are combined. Thus, the fact that individual voters in heavily populated districts are free to cast their ballot has no bearing on a claim of malapportionment. Id. at 167 (emphasis in original).
Applying these standards, Justice Powell believed that the “case present[ed] a paradigm example of unconstitutional discrimination against the members of a political party that happened to be out of power” and would have found that Indiana’s redistricting plan violated the Equal Protection Clause. Id. at 185.
Although history would establish that the plurality correctly predicted that its test for political gerrymandering was, in fact, “difficult of application,” id. at 142 (plurality opinion), Bandemer nevertheless provides some meaningful guidance. First, the Court’s one-person, one-vote and vote-dilution cases provide the foundation for evaluating claims of political gerrymandering. Second, that a “claim is submitted by a political group rather than a racial group, does not distinguish it in terms of justiciability.” Id. at 125. And, third, a successful political gerrymandering claim must include a showing of both discriminatory intent and discriminatory effect.
3. The Court revisited the issue of political gerrymandering in Vieth v. Jubelirer, 541 U.S. 267 (2004). In Vieth, the Court addressed an action filed by Democratic voters in Pennsylvania that challenged the state legislature’s new congressional districting plan. Justice Scalia, writing for a plurality, began with a critique of the standard articulated in Bandemer:

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Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided,” 478 U.S., at 123, such cases were justiciable. … There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see id., at 127 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.); two believed it was something else, see id., at 161 (Powell, J., joined by STEVENS, J., concurring in part and dissenting in part). The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years.
Id. at 278–79 (plurality opinion) (emphasis in original). In the plurality’s view, “[e]ighteen years of judicial effort with virtually nothing to show for it justif[ied] … revisiting the question whether the standard promised by Bandemer exists.” Id. at 281. It concluded that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking [such standards],” it concluded, “political gerrymandering claims are nonjusticiable and … Bandemer was wrongly decided.” Id.
The plurality turned first to the shortcomings of the test proposed by the plaintiffs:
To satisfy appellants’ intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage,” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” … As compared with the Bandemer plurality’s test of mere intent to disadvantage the plaintiff’s group, this proposal seemingly makes the standard more difficult to meet—but only at the expense of making the standard more indeterminate.
Id. at 284. The plurality determined that, in a statewide plan, there was no principled way to discern predominant intent.
The test also included an “effects” prong: “The requisite effect is established when ‘(1) the plaintiffs show that the districts systematically “pack” and “crack” the rival party’s voters, and (2) the court’s examination of the “totality of circumstances” confirms that the map can thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats.’” Id. at 286–87 (footnote omitted). According to the plurality, this aspect of the test also was not judicially discernible because there is no

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constitutional right to proportional representation: the Constitution “guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups.” Id. at 288. Nor, in the plurality’s opinion, was the proposed test judicially manageable because there was no reliable method to establish “a party’s majority status” or for “ensur[ing] that that party wins a majority of seats—unless we radically revise the States’ traditional structure for elections.” Id. at 288–89.
The plurality then critiqued the standards proposed by the dissenting Justices. Contrary to the view held by other members of the Court, the plurality did not believe that the “one-person, one-vote cases” had any “bearing upon this question,” either “in principle” or “in practicality.” Id. at 290 (first citing Reynolds, 377 U.S. 533; then citing Wesberry v. Sanders, 376 U.S. 1 (1964)).
Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the basis of three readily determined factors—where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a districting system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon. Id. at 290.
Turning first to Justice Stevens’s view, the plurality agreed that “severe partisan gerrymanders” were “incompatib[le] … with democratic principles.” Id. at 292. It could not agree, however, that political gerrymandering should be treated equivalently to racial gerrymandering. Id. at 293–95. In the plurality’s view, “[a] purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the basis of politics does not.” Id. at 293. The plurality was unpersuaded by Justice Stevens’s reference to political patronage cases, contending that “the underlying rights, and consequently constitutional harms, are not comparable.” Id. at 294.
The plurality also rejected Justice Souter’s multi-factor test, which was “loosely based in form on [the Court’s] Title VII cases.” Id. at 295. According to the plurality, this test was “doomed to failure” because “[n]o test—yea, not even a five-part test—can

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possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled.” Id. at 297. Although Justice Souter “vaguely describe[d] the harm he is concerned with as vote dilution, a term which usually implies some actual effect on the weight of a vote,” no element of his test measured this effect. Id. Consequently, the plurality was unsure of “the precise constitutional deprivation his test [wa]s designed to identify and prevent.” Id.
Addressing Justice Breyer’s dissent, the plurality agreed “that our Constitution sought to create a basically democratic form of government,” but found that this was “a long and impassable distance away from the conclusion that the Judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means).” Id. at 299 (internal quotation marks omitted) (citations omitted).
The plurality concluded, therefore, that the Equal Protection Clause did not “provide[] a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.” Id. at 305.
Justice Kennedy concurred in the judgment. He agreed that “[a] decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.” Id. at 306 (Kennedy, J., concurring in the judgment). “The Court,” he stated, was “correct to refrain from directing this substantial intrusion into the Nation’s political life.” Id. Furthermore, “[w]hile agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, [he] would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Id.
Justice Kennedy believed that
[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective. Id. at 307 (emphasis added). In this case, Justice Kennedy explained, the plaintiffs had not overcome the dual hurdles of discernibility and manageability:
The fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth’s

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congressional delegation. There is no authority for this precept. Even if the novelty of the proposed principle were accompanied by a convincing rationale for its adoption, there is no obvious way to draw a satisfactory standard from it for measuring an alleged burden on representational rights. The plurality demonstrates the shortcomings of the other standards that have been considered to date. See ante, at Parts III and IV (demonstrating that the standards proposed in Davis v. Bandemer, 478 U.S. 109 (1986), by the parties before us, and by our dissenting colleagues are either unmanageable or inconsistent with precedent, or both). Id. at 308.
However, Justice Kennedy was not willing to go so far as the plurality and hold partisan gerrymanders nonjusticiable. Although agreeing that there were “weighty arguments for holding cases like these to be nonjusticiable” and acknowledging that “those arguments may prevail in the long run,” it was Justice Kennedy’s view that “the arguments [we]re not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander.” Id. at 309. According to Justice Kennedy, the Court’s “willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims ma[de] it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering.” Id. at 310.
Justice Kennedy noted specifically that, in the end, it may be the First Amendment, not the Equal Protection Clause, which provides the framework within which political gerrymandering claims should be analyzed. See id. at 314. “After all,” he explained, “these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest.” Id. (citing Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion)). Moreover, a “‘[r]epresentative democracy … is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.’” Id. (quoting California Democratic Party v. Jones, 530 U.S. 567, 574 (2000)). According to Justice Kennedy, these precedents demonstrate that
First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where

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an apportionment has the purpose and effect of burdening a group of voters’ representational rights. Id.
Justice Kennedy disagreed with the plurality that application of a First Amendment standard would render invalid “all consideration of political interests in an apportionment.” Id. at 315. He explained:
The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group’s representational rights. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. Id. Because “[t]he First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association,” Justice Kennedy suggested that “[t]he analysis allows a pragmatic or functional assessment that accords some latitude to the States.” Id.
Justice Stevens dissented. Drawing both on the Court’s racial gerrymandering cases, see id. at 322–23 (Stevens, J., dissenting) (citing, among other authorities, Shaw v. Reno, 509 U.S. 630 (1993)), and the Court’s political patronage cases, see id. at 324 (citing Elrod, 427 U.S. 347)), Justice Stevens believed that the plaintiffs had standing, presented a redressable claim, and were entitled to relief. Specifically, he observed that “political belief and association constitute the core of those activities protected by the First Amendment” and that government employment decisions that burden these interests are subject to strict scrutiny. Id. (quoting Elrod, 427 U.S. at 356 (plurality opinion)). “Thus,” he continued, “unless party affiliation is an appropriate requirement for the position in question, government officials may not base a decision to hire, promote, transfer, recall, discharge, or retaliate against an employee, or to terminate a contract, on the individual’s partisan affiliation or speech.” Id. (citing, among other sources, O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 716–17 (1996)). Justice Stevens concluded that “[i]t follows” therefore “that political affiliation is not an appropriate standard for excluding voters from a congressional district.” Id. at 325.163
163 Justice Stevens made it clear in his dissent that “purpose [w]as the ultimate inquiry.” Vieth, 541 U.S. at 321 (Stevens, J., dissenting). He noted that there have been “ready standards for testing the lawfulness of a gerrymander,” id.; included among these were “configurations of the districts,” id. at 322 (quoting Bandemer, 478 U.S. at 165 (Powell, J., dissenting)). Among other

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Justice Souter wrote a dissenting opinion, joined by Justice Ginsburg, which rested on the “one-person, one-vote” principle. Id. at 343 (Souter, J., dissenting) (citing Reynolds, 377 U.S. 533). According to Justice Souter:
Creating unequally populous districts is not, however, the only way to skew political results by setting district lines. The choice to draw a district line one way, not another, always carries some consequence for politics, save in a mythical State with voters of every political identity distributed in an absolutely gray uniformity. The spectrum of opportunity runs from cracking a group into impotent fractions, to packing its members into one district for the sake of marginalizing them in another. However equal districts may be in population as a formal matter, the consequence of a vote cast can be minimized or maximized, and if unfairness is sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality. Id. (citation omitted). Justice Souter acknowledged the Court’s prior struggles in articulating a workable test for political gerrymandering. Accordingly, he suggested preserving the holding in Bandemer that political gerrymandering was justiciable, but “otherwise start[ing] anew.” Id. at 346. Specifically, he suggested using a burden-shifting test similar to that in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), “calling for a plaintiff to satisfy elements of a prima facie cause of action, at which point the State would have the opportunity not only to rebut the evidence supporting the plaintiff’s case, but to offer an affirmative justification for the districting choices, even assuming the proof of the plaintiff’s allegations.” Vieth, 541 U.S. at 346.164
indicators of intent were “contemporaneous statements and press accounts, demonstrating that the architects of the districts were motivated solely by partisan considerations.” Id. (internal quotation marks omitted). Thus, to Justice Stevens, irregular shapes were not the sine qua non of a gerrymander, see Dissent at 129, but only one possible indicator.
164 The factors proposed by Justice Souter were: 1) the plaintiff belonged to a cohesive political group; 2) the plaintiff’s district of residence “paid little or no heed to … traditional districting principles”; 3) there were “specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group”; 4) there is a “hypothetical district including [the plaintiff’s] residence, one in which the proportion of the plaintiff’s group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district; and 5) “the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group.” Vieth, 541 U.S. at 347–50 (Souter, J., dissenting). The goal of these factors was to discern whether “the defendant had chosen either to pack the group … or to crack it …, the ordinary methods of vote dilution.” Id. at 349. Although a “bizarre shape,” Dissent at 129, would be evidence of the second factor, Justice Souter did not propose it as a requirement.

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Justice Breyer, also in dissent, opined that “the workable democracy that the Constitution foresees” must include “a method for transforming the will of the majority into effective government.” Id. at 356 (Breyer, J., dissenting). In his view, this method could be harmed by “the unjustified use of political factors to entrench a minority in power.” Id. at 360. Justice Breyer quoted extensively from Reynolds to support his view that “[t]he democratic harm of unjustified entrenchment is obvious”:
“Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators. … Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” Reynolds, 377 U.S. at 565.
Where unjustified entrenchment takes place, voters find it far more difficult to remove those responsible for a government they do not want; and these democratic values are dishonored. Id. at 361. Consequently, “gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause.” Id. at 362. Although the test articulated in Bandemer proved unworkable, Vieth has placed district courts in an even greater quandary. For all its shortcomings, the Bandemer decision at least set forth a test for district courts to apply. In Vieth, however, the members of the Court were unanimous only in their willingness to jettison the test set forth in Bandemer. We conclude, therefore, that the specific test for political gerrymandering set forth in Bandemer no longer is good law. Moreover, any attempt to craft a new test ought to avoid those shortcomings in the Bandemer test specifically identified by the members of the Court.
4. The Supreme Court’s most recent case on partisan gerrymandering, League of United Latin American Citizens v. Perry (“LULAC”), 548 U.S. 399 (2006), gives little more in the way of guidance. Nevertheless, we set forth those aspects of the decision that may be useful in evaluating the plaintiffs’ claims.
In the 1990s, the Democrats controlled both houses of the Texas legislature and the statehouse and enacted what was “later described as the shrewdest gerrymander of the 1990s.” Id. at 410 (internal quotation marks omitted). Following the 2000 census, Texas was entitled to two additional congressional seats. However, the legislature now was split politically between a Republican Senate and a Democratic House of

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Representatives. “As so constituted, the legislature was unable to pass a redistricting scheme,” resulting in a court-ordered plan which left “[t]he 1991 Democratic Party gerrymander largely in place as a ‘legal’ plan.” Id. at 411–12 (alteration in original). In 2002, however, Republicans gained control of both houses of the legislature and enacted legislation that re-drew congressional districting lines; these new districts resulted in the Republicans securing 21 seats with 58% of the vote in statewide races, compared to the Democrats’ 11 seats with 41% of the vote.
Shortly after the plan was enacted, some Texas voters mounted both statutory and constitutional challenges to it. In the constitutional challenge, the plaintiffs claimed that a decision to enact a new redistricting plan mid-decade, “when solely motivated by partisan objectives, violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation.” Id. at 416–17. The Supreme Court disagreed.
Justice Kennedy, joined by Justices Souter and Ginsburg, opined that “a successful claim attempting to identify unconstitutional acts of partisan gerrymandering must do what appellants’ sole-motivation theory explicitly disavows: show a burden, as measured by a reliable standard, on the complainants’ representational rights.” Id. at 418 (opinion of Kennedy, J.). Moreover, Justice Kennedy was concerned that the plaintiffs’ proposed test would exempt from constitutional scrutiny other, more serious examples of partisan gerrymandering:
The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders. Under appellants’ theory, a highly effective partisan gerrymander that coincided with decennial redistricting would receive less scrutiny than a bumbling, yet solely partisan, mid-decade redistricting. More concretely, the test would leave untouched the 1991 Texas redistricting, which entrenched a party on the verge of minority status, while striking down the 2003 redistricting plan, which resulted in the majority Republican Party capturing a larger share of the seats. A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it. Id. at 418–19. Justice Kennedy also noted that the current Texas map could “be seen as making the party balance more congruent to statewide party power.” Id. at 419. “To be sure,” Justice Kennedy continued,
there is no constitutional requirement of proportional representation, and equating a party’s statewide share of the vote with its portion of the

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congressional delegation is a rough measure at best. Nevertheless, a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority. Id. at 419 (emphasis added).
Justice Kennedy also commented on a submission by an amicus which “propose[d] a symmetry standard that would measure partisan bias by ‘compar[ing] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote.’” Id. at 419. He stated:
Amici’s proposed standard does not compensate for appellants’ failure to provide a reliable measure of fairness. The existence or degree of asymmetry may in large part depend on conjecture about where possible vote-switchers will reside. Even assuming a court could choose reliably among different models of shifting voter preferences, we are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs. Presumably such a challenge could be litigated if and when the feared inequity arose. More fundamentally, the counterfactual plaintiff would face the same problem as the present, actual appellants: providing a standard for deciding how much partisan dominance is too much. Without altogether discounting its utility in redistricting planning and litigation, I would conclude asymmetry alone is not a reliable measure of unconstitutional partisanship. Id. at 420 (citation omitted) (emphasis added). Justice Kennedy thus concluded that “a legislature’s decision to override a valid, court-drawn plan mid-decade” is not “sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders.” Id. at 423. Consequently, he concluded that the petitioners had not established a “legally impermissible use of political classifications” and had not stated a claim on which relief could be granted. Id.
Justice Stevens, in a separate opinion joined by Justice Breyer, reiterated the view of impartiality that he had articulated in Vieth. He observed that “the Fourteenth Amendment’s prohibition against invidious discrimination[] and the First Amendment’s protection of citizens from official retaliation based on their political affiliation” “limit the State’s power to rely exclusively on partisan preference in drawing district lines.” Id. at 461 (Stevens, J., concurring in part and dissenting in part). He explained:
The equal protection component of the Fourteenth Amendment requires actions taken by the sovereign to be supported by some legitimate

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interest, and further establishes that a bare desire to harm a politically disfavored group is not a legitimate interest. Similarly, the freedom of political belief and association guaranteed by the First Amendment prevents the State, absent a compelling interest, from “penalizing citizens because of their participation in the electoral process, … their association with a political party, or their expression of political views.” These protections embodied in the First and Fourteenth Amendments reflect the fundamental duty of the sovereign to govern impartially. Id. at 461–62 (citations omitted) (quoting Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment)). Justice Stevens also set forth some of the representational harms engendered by political gerrymanders. Specifically, he noted that, “in addition to the possibility that a representative may believe her job is only to represent the interests of a dominant constituency, a representative may feel more beholden to the cartographers who drew her district than to the constituents who live there.” Id. at 470.
Justice Breyer, in addition to joining Justice Stevens’s opinion, wrote separately to describe why he believed that the plan violated the Constitution:
[B]ecause the plan entrenches the Republican Party, the State cannot successfully defend it as an effort simply to neutralize the Democratic Party’s previous political gerrymander. Nor has the State tried to justify the plan on nonpartisan grounds, either as an effort to achieve legislative stability by avoiding legislative exaggeration of small shifts in party preferences or in any other way.
In sum, “the risk of entrenchment is demonstrated,” “partisan considerations [have] render[ed] the traditional district-drawing compromises irrelevant,” and “no justification other than party advantage can be found.” The record reveals a plan that overwhelmingly relies upon the unjustified use of purely partisan line-drawing considerations and which will likely have seriously harmful electoral consequences. For these reasons, I believe the plan in its entirety violates the Equal Protection Clause. Id. at 492 (Breyer, J., concurring in part and dissenting in part) (quoting Vieth, 541 U.S. at 359, 367 (Breyer, J., dissenting)) (emphasis in original) (citations omitted). Justices Souter and Ginsburg adhered to their view, set forth in Vieth, as to the proper test for political gerrymandering, but concluded that there was “nothing to be gained by working through these cases on th[at] standard” because, like in Vieth, the Court “ha[d] no majority for any single criterion of impermissible gerrymander.” Id. at

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483 (Souter, J., concurring in part and dissenting in part). Chief Justice Roberts, joined by Justice Alito, agreed with Justice Kennedy “that appellants ha[d] not provided a reliable standard for identifying unconstitutional political gerrymanders,” but took no position as to “whether appellants ha[d] failed to state a claim on which relief can be granted, or ha[d] failed to present a justiciable controversy.” Id. at 492–93 (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part) (internal quotation marks omitted). Finally, Justices Scalia and Thomas reiterated their view that the voters’ political gerrymandering claims were nonjusticiable. See id. at 511 (Scalia, J., concurring in the judgment in part and dissenting in part).
5.
In its consideration of the reapportionment issue, the Court has acknowledged that the appropriate analysis is grounded not only in its jurisprudence of equal protection, but also its jurisprudence of associational rights under the First Amendment. The gravamen of an equal protection claim is that a state has burdened artificially a voter’s ballot so that it has less weight than another person’s vote. A year after Reynolds, the Court again articulated this concept in Fortson v. Dorsey, 379 U.S. 433 (1965), when it evaluated whether multimember legislative districts had a constitutionally impermissible impact on the weight of African-American voters. There, the Court reiterated its concern that voters’ ability to participate in the electoral process was unequal. While declining to hold multimember districts were unconstitutional per se, it noted that “designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, [might] operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Id. at 439. Again, in White v. Register, 412 U.S. 755 (1973), the Court held that certain multimember districts were violative of the Constitution when the plaintiffs produced evidence that an election was not “equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Id. at 766 (emphasis added). In Gaffney, 412 U.S. at 754, the Court again noted that apportionment plans that “invidiously minimize[]” the voting strength of “political groups” “may be vulnerable” to constitutional challenges.
In these cases, the Court’s emphasis on ensuring that an individual’s vote receive the same weight as every other person’s vote necessarily implicates that individual’s associational rights. The Court previously has observed the link between the right to vote and the right to associate in its ballot-access cases. One of the foundational ballot-access cases, Anderson v. Celebrezze, 460 U.S. 780 (1983), involved a challenge to a state law which required independent candidates to file their nominating petitions

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seventy-five days before the primary election in order to qualify for the general election ballot. Id. at 804–06. The Court observed that the statute in question implicated both the “right to vote” and “freedom of association”: “Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.” Id. at 788 (emphasis added).
The Court then outlined the analysis a court must undertake in considering a challenge to a state’s election law:
It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. Id. at 789. Applying these steps, the Court determined that the early filing deadline at issue in Anderson placed a burden on independent parties and that “it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group.” Id. at 793. After considering the state’s interests in keeping voters well-educated about the candidates, being fair to the parties who hold primaries, and ensuring political stability, the Court held that there was an unconstitutional burden on “the interests of the voters who chose to associate together to express their support for [an independent’s] candidacy and the views he espoused.” Id. at 806 (emphasis added). The Court also noted that, in reaching its conclusion, it was relying “directly on the First and Fourteenth Amendments” and was “not engag[ing] in a separate Equal Protection Clause analysis.” Id. at 786–87 n.7. It had relied, however,
on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment. These cases, applying the “fundamental rights” strand of equal protection analysis, have identified the First and Fourteenth Amendment rights implicated by restrictions on the eligibility of voters and candidates, and have considered the degree to which the State’s restrictions further legitimate state interests. Id.

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Since Anderson, the Court has continued to assess election laws through the lens of the First and Fourteenth Amendments, without explicit reference to the Equal Protection Clause. In evaluating election laws, the Court employs a multi-step process that looks at the totality of the circumstances:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. No bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358–59 (1997) (internal quotation marks omitted) (citations omitted).
Nevertheless, the close relationship between equal protection and associational rights is clear. For example, in Williams v. Rhodes, 393 U.S. 23 (1968), one of the equal protection cases relied upon in Anderson, the Court considered the constitutionality of a law which required new political parties to obtain the signatures of electors equaling 15% of the number of ballots cast in the preceding gubernatorial election. It stated:
[W]e have … held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Similarly we have said with reference to the right to vote: “No right is more precious in a free country than that of having a voice in the

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election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Id. at 30–31 (emphasis added) (citations omitted). The Court held that the law in question was unconstitutionally burdensome on new political parties. Id. at 34.165
We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.
On the facts presented in past cases, some members of the Supreme Court have expressed the view that judicial enforcement of the principle that each voter has a right to have his vote treated equally must be limited to situations where the dilution is based on classifications such as race and population. These reservations have been grounded in the concern that distinguishing between legitimate and illegitimate political motivations is not a task to be undertaken by judges. In their view, moreover, there are insurmountable problems in formulating manageable standards. See Bandemer, 478 U.S. at 147 (O’Connor, J., concurring in the judgment); Vieth, 541 U.S. at 288 (plurality opinion). Other Justices have not accepted such a limitation. See, e.g., Vieth, 541 U.S. at 306–17 (Kennedy, J., concurring in the judgment). As we shall discuss at greater length later, however, this case does not present these conundrums. We are not presented with the problem of distinguishing between permissible and impermissible political motivations. We have a far more straight-forward situation. The plaintiffs have established, on this record, that the defendants intended and accomplished an
165 In subsequent cases, the Court similarly assessed claims under the Equal Protection Clause. See, e.g., Am. Party of Texas v. White, 415 U.S. 767, 788–89 (1974) (holding that a requirement that minor parties obtain signatures equivalent to 1% of the votes in the previous election was not unconstitutional); Storer v. Brown, 415 U.S. 724, 733–34 (1974) (holding that a law which required an independent candidate to not have been affiliated with a political party for a year for before the party “involves no discrimination” and was not unconstitutional); Bullock v. Carter, 405 U.S. 134, 149 (1972) (holding that the imposition of filing fees in order to seek the nomination of a party constituted a constitutional violation).

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entrenchment of the Republican Party likely to endure for the entire decennial period. They did so when the legitimate redistricting considerations neither required nor warranted the implementation of such a plan.
IV ELEMENTS OF THE CAUSE OF ACTION
As our description of the case law reveals, the law governing political gerrymandering, still in its incipient stages, is in a state of considerable flux. We must, however, accept that situation and seek in these authorities a solution to the case before us. Therefore, while not discounting the difficulty of the task before us, we now identify the guideposts available to us.
We begin with a principle that is beyond dispute. State legislative apportionment is the prerogative and therefore a duty of the political branches of the state government. We must “recognize[] the delicacy of intruding on this most political of legislative functions.” Bandemer, 478 U.S. at 143.166 We also know that we cannot rely on the simple finding “that political classifications were applied.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Similarly, “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” Bandemer, 478 U.S. at 132 (plurality opinion).
It is clear that the First Amendment and the Equal Protection Clause protect a citizen against state discrimination as to the weight of his or her vote when that discrimination is based on the political preferences of the voter.167 This principle applies not simply to disparities in raw population, but also to other aspects of districting that “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson, 379 U.S. at 439. Specifically, apportionment plans that “invidiously minimize[]” the voting strength of “political groups” “may be vulnerable” to constitutional challenges, Gaffney, 412 U.S. at 754, because “each political group in a State should have the same chance to elect representatives of its choice as any other political group,” Bandemer, 478 U.S. at 124.
166 Cf. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment) (cautioning against “the correction of all election district lines drawn for partisan reasons” because that course “would commit federal and state courts to unprecedented intervention in the American political process”). 167 Cf. Reynolds, 377 U.S. at 565 (“Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purpose of legislative apportionment.”).

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We conclude, therefore, that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
A. Discriminatory Intent or Purpose
The Supreme Court has stressed the “basic equal protection principle that the invidious quality of a law … must ultimately be traced to a discriminatory purpose.” Washington v. Davis, 426 U.S. 229, 240 (1976); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of … discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). A legislature’s discriminatory intent also factors into a First Amendment analysis. Timmons, 520 U.S. at 358–59 (considering whether a state has imposed “reasonable, nondiscriminatory restrictions” on First Amendment associational rights (emphasis added)); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 452 (2008) (same); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Where the claim is invidious discrimination in contravention of the First … Amendment[], our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.”).
The Court explicitly has held that equal protection challenges to redistricting plans require a showing of discriminatory purpose or intent. See Rogers, 458 U.S. at 617 (explaining that cases involving allegations of vote-dilution on the basis of race “are … subject to the standard of proof generally applicable to Equal Protection Clause cases” including a showing of a “‘a racially discriminatory purpose’” (quoting Washington, 426 U.S. at 240)). This requirement applies with equal force to cases involving political gerrymanders. See Bandemer, 478 U.S. at 127 (stating that plaintiffs who bring a claim of partisan gerrymandering “[a]re required to prove … intentional discrimination against an identifiable political group” (emphasis added)).
1.
When considering the level of partisan intent necessary to establish a political-gerrymandering claim, our first task is to determine what kind of partisan intent offends the Constitution. The plurality in Bandemer simply required a plaintiff to show any level of “intentional discrimination against an identifiable political group.” 478 U.S. at 127; see also Vieth, 541 U.S. at 284 (plurality opinion) (describing the Bandemer plurality’s standards as “mere intent to disadvantage the plaintiff’s group”). It suggested that “[a]s long as redistricting is done by a legislature, it should not be very

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difficult to prove that the likely political consequences of the reapportionment were intended.” Bandemer, 478 U.S. at 129. A majority of the Court in Vieth, however, rejected the Bandemer plurality’s test, which included this standard of intent. Vieth, 541 U.S. at 284 (plurality opinion) (“declin[ing] to affirm [the Bandemer test] as a constitutional requirement”); id. at 308 (Kennedy, J., concurring in the judgment) (noting that “[t]he plurality demonstrates the shortcomings of the other standards that have been considered to date” and specifically identifying “the standards proposed in Davis v. Bandemer”).
At the outset, we note that the Court recently has acknowledged that the constitutionality of partisan favoritism in redistricting is an open question. See Harris v. Arizona Indep. Redistricting Comm'n, 136 S. Ct. 1301, 1310 (2016) (“assuming, without deciding, that partisanship is an illegitimate redistricting factor”). Nevertheless, we know that legislatures may employ some political considerations when making redistricting decisions; considerations such as achieving “political fairness,” Gaffney, 412 U.S. at 752, and “avoiding contests between incumbent[s],” Bush v. Vera, 517 U.S. 952, 964 (1996) (internal quotation marks omitted) (quoting Karcher v. Daggett, 462 U.S. 725, 740 (1983)) (alteration in original), are permissible.
That some political considerations may intrude into the redistricting process without running afoul of the Constitution, however, does not answer the question whether partisan favoritism is permissible. The Court’s members appear to acknowledge that some level of partisanship is permissible, or at least inevitable, in redistricting legislation. The plurality in Vieth, for instance, noted that “partisan districting is a lawful and common practice.” 541 U.S. at 286. In his opinion, Justice Kennedy observed that political classifications are “generally permissible.” Id. at 307 (Kennedy, J., concurring in the judgment). Justices Souter and Breyer, dissenting in Vieth, expressed the view that partisan favoritism in some form was inevitable, if not necessarily desirable. See id. at 344 (Souter, J., dissenting) (“[S]ome intent to gain political advantage is inescapable whenever political bodies devise a district plan ….”); id. at 360 (Breyer, J., dissenting) (“[T]raditional or historically based boundaries are not, and should not be, ‘politics free.’ … They … represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage.” (emphasis added)).
Other justices, however, have not acknowledged that political affiliation is “an appropriate standard for excluding voters from a congressional district.” Id. at 325 (Stevens, J., dissenting). Even so, these justices have proposed tests that “cover only a

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few meritorious claims” and “preclude extreme abuses” of the districting process. Id. at 339.168
As a starting point, it is safe to say that this concept of abuse of power seems at the core of the Court’s approach to partisan gerrymandering. In Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652, 2658 (2015), the Court defined partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Justice Kennedy noted in Vieth that a claim of partisan gerrymandering “must rest … on a conclusion that [political] classifications … were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (emphasis added). The plurality, as well, acknowledged that “an excessive injection of politics is unlawful.” Id. at 293 (plurality opinion). And Justice Breyer in dissent observed that there was “at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely, the unjustified use of political factors to entrench a minority in power.” Id. at 360 (Breyer, J., dissenting) (emphasis in original).169
When “acceptable”—or at least tolerable—crosses a line to become “excessive,” however, remains unclear. Moreover, as Justice Kennedy warns, a standard of excessiveness has its drawbacks:
[C]ourts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of party Y’s effort is to capture more new seats than Party X captured. Party X’s gerrymander was more
168 To address the inevitability of partisan favoritism, Justice Souter, like Justice Stevens, proposed a more rigorous “effects” analysis. Vieth, 541 U.S. at 347–50 (Souter, J., dissenting) (observing that “under a plan devised by a single major party, proving intent” under his test “should not be hard, … politicians not being politically disinterested or characteristically naïve.”). Alternatively, Justice Breyer proposed a standard that addressed “circumstance[s] where use of purely political boundary-drawing factors can amount to a serious, and remediable abuse.” Id. at 360 (Breyer, J., dissenting). 169 See also LULAC, 548 U.S. at 419 (opinion of Kennedy, J.) (observing that “a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority”).

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egregious. Party Y’s gerrymander was more subtle. In my view, however, each is culpable. Id. at 316 (Kennedy, J., concurring in the judgment).
“Excessiveness” does not need to be defined simply in terms of raw seat tallies. The danger with extreme partisan gerrymanders is that they entrench a political party in power, making that party—and therefore the state government—impervious to the interests of citizens affiliated with other political parties. This imperviousness may be achieved by manipulating a map to achieve a supermajority. But it also may be achieved by “lock[ing]-in” or creating the requisite “safe seats” such that legislators “elected from such safe districts need not worry much about the possibility of shifting majorities” and “have little reason to be responsive to the political minorities within their district.” LULAC, 548 at 470–71 (Stevens, J., concurring in part and dissenting in part).
When a party is “locked-in” through the intentional manipulation of legislative districts, “representational harms” to those affiliated with the “out”-party necessarily ensue. See id. at 470. Specifically, “in addition to the possibility that a representative may believe her job is only to represent the interests of a dominant constituency, a representative may feel more beholden to the cartographers who drew her district than to the constituents who live there.” Id. The result is a system that assigns different weights to the votes of citizens and accords to those citizens different levels of legislative responsiveness based on the party with which they associate. See Reynolds, 377 U.S. at 565.
Whatever gray may span the area between acceptable and excessive, an intent to entrench a political party in power signals an excessive injection of politics into the redistricting process that impinges on the representational rights of those associated with the party out of power. Such a showing, therefore, satisfies the intent requirement for an equal protection violation. 170
2.
A “‘discriminatory purpose’ … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part, ‘because of,’ not merely ‘in spite of,’ its
170 The intent we require, therefore, is not simply an “intent to act for political purposes,” Dissent at 120, but an intent to make the political system systematically unresponsive to a particular segment of the voters based on their political preference.

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adverse effects upon an identifiable group.” Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979); see also Chavez v. Ill. State Police, 251 F.3d 612, 645 (7th Cir. 2001) (quoting same). The plaintiffs therefore must show that the intent to entrench the Republican Party in power was “a motivating factor in the decision.” Arlington Heights, 429 U.S. at 265–66. It need not be the “sole[]” intent or even “the ‘dominant’ or ‘primary’ one.” Id. at 265.171 Indeed, it rarely can “be said that a legislature or administrative body operating under a broad mandate made a decision motivated by a single concern.” Id. This is certainly true in redistricting legislation where the Court has identified “traditional districting principles such as compactness, contiguity, and respect for
171 In an “analytically distinct” line of cases, the Supreme Court has required that plaintiffs establish that the discriminatory motive be the legislature’s “predominant” intent. Miller v. Johnson, 515 U.S. 900, 911, 917 (1995). These cases, beginning with Shaw v. Reno, 509 U.S. 630 (1993), concern the use of racial classifications in the drawing of district lines. Specifically, in Shaw, the plaintiffs had “alleged that the General Assembly deliberately ‘create[d] two Congressional Districts in which a majority of black voters was concentrated along racial lines’” and “to assure the election of two black representatives to Congress.” Id. at 637. The Court held that such classifications were subject to strict scrutiny. Although these voting schemes did not dilute the voting strength of racial minorities, they nevertheless resulted in “special harms that are not present in … vote-dilution cases,” which “warrant[ed] [a] different analysis.” Id. at 649–50. In the Court’s view, classifying voters on the basis of race “reinforce[d] racial stereotypes and threaten[ed] to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole.” Id. at 650.
In Miller, the Court reiterated the special harms in such cases:
Just as a State may not … segregate citizens on the basis of race in its public parks, so … it may not separate its citizens into different voting districts on the basis of race. … Race-based assignments “embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.”
515 U.S. at 911–12 (citations omitted). To establish this kind of equal protection claim, the Court continued, the “plaintiff’s burden is to show … that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Id. at 916.
The Shaw line of cases does not speak directly to the political gerrymandering case before us. In those cases, the Court particularly was concerned about “racial stereotypes,” Shaw, 509 U.S. at 647–48; Miller, 515 U.S. at 911–12, which are not present here. Relatedly, applying a “special harms” analysis to the partisan gerrymandering context would call into question bipartisan districting plans designed to create parity between the parties; the Court, however, clearly has held that “partisan fairness” is a legitimate consideration in crafting legislative districts. See supra at 34–36 (discussing Gaffney, 412 U.S. 735). Finally, the Court has rejected the “predominant intent” standard in the context of political gerrymandering claims. See supra at 40–42 (discussing plurality opinion in Vieth, 541 U.S. at 284–86) and 43–45 (discussing Justice Kennedy’s concurrence in Vieth, 541 U.S. at 306–08).

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political subdivisions” that legitimately may inform drafters in the drawing of district lines. Shaw v. Reno, 509 U.S. 630, 647 (1993).
Relying on traditional districting principles, defendants propose a novel rule: a redistricting plan that “is consistent with, and not a radical departure from, prior plans with respect to traditional districting principles” cannot, as a matter of law, evince an unconstitutional intent.172 In other words, compliance with traditional districting principles necessarily creates a constitutional “safe harbor” for state legislatures.
The defendants’ approach finds no support in the law. It is entirely possible to conform to legitimate redistricting purposes but still violate the Fourteenth Amendment because the discriminatory action is an operative factor in choosing the plan. Indeed, the Court rejected a similar claim in Fortson: while acknowledging that there was no “mathematical disparity” that violated the principle of “one-person, one-vote,” it did not rule out the possibility that a districting plan, which included multimember districts, could “operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” 379 U.S. at 439. Similarly, in Gaffney, the Court observed that “[s]tate legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment.” 412 U.S. at 751.
Moreover, the Court has made clear that “traditional districting principles” are not synonymous with equal protection requirements. Instead, they “are objective factors that may serve to defeat a claim that a district has been gerrymandered.” Shaw, 509 U.S. at 647 (citing Gaffney, 412 U.S. at 752 n.18). In other words, they are constitutionally permissible, but not “constitutionally required.” Id. Individual Justices also have noted that a map’s compliance with traditional districting principles does not necessarily speak to whether a map constitutes a partisan gerrymander:
[E]ven those criteria that might seem promising at the outset (e.g., contiguity and compactness) are not altogether sound as independent judicial standards for measuring a burden on representational rights. They cannot promise political neutrality when used as the basis for relief. Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment); see also id. at 366 (Breyer, J., dissenting) (opining that a map where “no radical departure from traditional districting criteria is alleged” but an unjustified partisan result occurs in two elections “would be sufficient to support a claim of unconstitutional entrenchment”). Highly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional districting criteria. A map that appears congruent and compact to the naked eye may in fact be an intentional and highly
172 R.153 at 5; see also R.156 at 1 (“[A] democratically-enacted districting plan … is entirely lawful when it complies with traditional districting principles.”).

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effective partisan gerrymander. When reviewing intent, therefore, we cannot simply ask whether a plan complied with traditional districting principles. Therefore, the defendants’ contention—that, having adhered to traditional districting principles, they have satisfied the requirements of equal protection—is without merit.173
We therefore must confront the question of how we are to discern whether, in creating the map that became Act 43, the drafters employed an impermissible intent— cutting out for the longterm those of a particular political affiliation. In assuming this task, we are mindful that “[i]nquiries into congressional [and other legislative bodies’] motives or purposes are a hazardous matter.” United States v. O’Brien, 391 U.S. 367, 383 (1968). When the issue is one of “mixed intent” as it is here, “[e]valuating the legality of acts … can be complex … . When the actor is a legislature and the act is a composite of manifold choices, the task can be even more daunting.” LULAC, 548 U.S. at 418 (opinion of Kennedy, J.). “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including (1) “[t]he impact of the official action” as “an important starting point”; (2) “the historical background of the decision”; (3) “[t]he specific sequence of events leading up to the challenged decision”; (4) “[d]epartures from the normal procedural sequence”; (5) “legislative or administrative history … , especially … contemporary statements by members of the decisionmaking
173 The Dissent relies on the opinion of Justice Stevens concurring in the summary affirmance in Cox v. Larios, 542 U.S. 947 (2004), to “reinforce[],” Dissent at 131, its conclusion that oddly shaped districts are a necessary component of a claim that a partisan gerrymander violates the Constitution. Respectfully, that reliance is misplaced. Cox is, as the Dissent notes, a malapportionment case, and it was affirmed because, as the district found, and Justice Stevens repeated, “[t]he numbers largely speak for themselves.” 542 U.S. at 948 (alteration in original) (internal quotation marks omitted). The unusual shapes in the map “supplied further evidence,” id., but were by no means essential to the result.
Moreover, the two Justices concurring in the summary affirmance went on to note that the map’s “selective incumbent protection” and related incumbent pairings, done for partisan gain, would have violated any partisan gerrymandering standard the Court could have adopted in Vieth, where the gerrymander was “visible to the judicial eye.” Id. at 949–950. Read in context, we believe this language refers clearly to the concerning feature of intentional incumbent pairings, not the shape of the districts.
In any event, the Justices continued, “[d]rawing district lines that have no neutral justification in order to place two incumbents of the opposite party in the same district is probative of the same impermissible intent” as prior case involving oddly shaped districts. Id. at 950. Plainly, this language does not make odd shapes a necessary part of a claim; it merely shows that it is a permissible way for a plaintiff to show intent. Indeed, we read this passage not to confirm, as the Dissent does, a shape-based analysis, but to confirm a separate point disputed by the Dissent: that intent is a requirement of a unconstitutional gerrymandering claim. True enough, a case involving odd shapes presents an easier claim, both to prove and to adjudicate. But the complexities of proving a case without these shapes are not fatal to the claim.

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body, minutes of its meetings, or reports.” Arlington Heights, 429 U.S. at 266–68; see also Miller, 515 U.S. at 913–14.
However, discerning the intent of a legislative body can be less daunting in some cases than in others. In some cases, the legislature is aware that a distinction is constitutionally impermissible and surreptitiously attempts to create legislation on the basis of that distinction. These cases require that we engage in a careful inquiry of circumstantial evidence, because the drafters’ intent often is hidden from the casual observer.174 In other cases, a legislature seems unaware that a distinction is constitutionally impermissible and deliberately enacts legislation on the basis of that distinction. This situation typically arises in periods before the Supreme Court has illuminated the full meaning of a constitutional right.175 In these cases, courts are able to discern the legislature’s intent more easily and less intrusively because the evidence is far more direct.
This case falls more in the latter category. The Court never has invalidated a redistricting plan on the ground of partisan gerrymandering, and the Court’s recent pronouncements have caused some district courts to question the viability of the cause of action.176 Here, the record demonstrates that, although the drafters were aware of some constitutional limits on the degree to which they could neutralize the political power of the opposition party, those limits were not firmly established.
We therefore turn to the sequence of events that led to the enactment of Act 43 to discern whether one purpose behind the legislation was to entrench a political party in power.
3. a. Evidence of intent
The evidence at trial establishes that one purpose of Act 43 was to secure the
174 See, e.g., Rogers, 458 U.S. at 623–25 (relying on circumstantial evidence of intent in a case of racial voting dilution and noting that “the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by courts or made illegal by civil rights litigation, and that they were replaced by laws and practices which, though neutral on their face, serve to maintain the status quo”). 175See, e.g., Miller, 515 U.S. at 918 (noting that the State had conceded that it had drawn lines on the basis of race and concluding that the district court therefore “had little difficulty” determining the legislature’s intent). 176 See, e.g., Radogno v. Illinois St. Bd. of Elections, No. 1:11-cv-04884, 2011 WL 5025251, at *4–6 (N.D. Ill. Oct. 21, 2011) (recounting district courts’ approaches to political gerrymandering claims).

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Republican Party’s control of the state legislature for the decennial period. The drafters’ concern with the durable partisan complexion of the new Assembly map was present from the outset of the legislative process. Ottman, Foltz,177 and Handrick began drafting the map that would become Act 43 in April 2011.178 One of their first orders of business was to develop a composite partisan score that accurately reflected the political makeup of population units, which would allow them to assess the partisan make-up of the new districts.179 When they came up with a composite of “all statewide races from [20]04 to 2010” that “seem[ed] to work well,” they sent it to Professor Gaddie.180
Professor Gaddie,181 the “advisor on the appropriate racial and/or political make-up of legislative … districts,”182 “buil[t] a regression model … to test the partisan makeup and performance of districts as they might be configured in different ways.”183 Professor Gaddie then tested the drafters’ composite measure against his model and confirmed that their measure was “almost a perfect proxy for the open seat vote, and the best proxy you’ll come up with.”184 Professor Mayer testified that the drafters’ composite measure correlated very strongly with his own measure of partisanship, which led him to conclude that “they knew exactly what they were doing, that they had a very accurate estimate of the underlying partisanship of the Act 43 maps.”185
Once Ottman, Foltz, and Handrick received Professor Gaddie’s imprimatur on their composite measure, they employed this measure “to assess the partisan impact of the map[s] that [they] drew.”186 We find that the maps the drafters generated, as well as the statistical comparisons made of the various maps, reveal that a focal point of the drafters’ efforts was a map that would solidify Republican control. The maps often bore
177 With some limited exceptions, we find Ottman to be a credible witness. We have less confidence in Foltz’s testimony, which appeared to us rehearsed and guarded. Throughout our discussion, we will note those areas of testimony which we find unworthy of credence. 178 See R.148 at 68. 179 See Tr. Ex. 175, at 1–2. 180 Id. at 2. 181 As noted earlier, Professor Gaddie’s testimony was offered through a video deposition. We find his testimony credible. 182 Tr. Ex. 169 (emphasis added). 183 Tr. Ex. 161 (Gaddie Dep.), at 46. 184 Tr. Ex. 175, at 1. 185 R.148 at 192; see also id. at 207–09. 186 See R.147 at 61; R.148 at 15–16.

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names that reflected the level of partisan advantage achieved. For instance, maps labeled “aggressive” referenced “a more aggressive map with regard to GOP leaning.”187 When producing these more advantageous maps, the drafters did not abandon traditional districting criteria;188 to the contrary, the maps complied with traditional districting criteria while also ensuring a significant partisan advantage.
The drafters also created spreadsheets that collected the partisan scores, by district, for each of the map alternatives. For each spreadsheet, there was a corresponding table that listed the number of “Safe” Republican seats, “Lean” Republican seats, “Swing” seats, “Safe” Democratic seats, and “Lean” Democratic seats; these figures also were compared to the number of seats in each category under the Current Map, the map drawn by the court in Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366, 2002 WL 34127471 (E.D. Wis. May 30, 2002), amended by 2002 WL 34127473 (E.D. Wis. July 11, 2002).189
The process of drafting and evaluating these alternative district maps spanned several months. In April, the drafters produced a document comparing the partisan performance of the Current Map to two early draft maps: Joe’s Basemap Basic and Joe’s Basemap Assertive.190 Under the Current Map, the drafters anticipated that the Republicans would win 49191 Assembly seats.192 This number increased to 52 under the Joe’s Basemap Basic map and to 56 under the Joe’s Basemap Assertive map.193 The number of safe and leaning Republican seats increased from 40 under the Current Map to 45 under the Joe’s Basemap Basic map and 49 under the Joe’s Basemap Assertive map; the number of swing seats decreased from 19 to 14 to 12.194 The number of safe
187 R.147 at 65. Also during the drafting process, Ottman met with individual senators to review with them the census numbers and to obtain general information about their districts. One senator suggested to Ottman how her district could be re-drawn to take the seat away from a Democratic member of the Assembly: “If you need a way to take the Staskunas seat, put a little bit of my Senate seat into New Berlin (2–3 wards could make that a GOP Assembly seat).” Tr. Ex. 239. 188 See supra at 10. 189 See, e.g., Tr. Ex. 364. 190 Tr. Ex. 465. 191 Id. These consisted of the “strong gop” seats, the “lean gop” seats, and approximately one-half of the “toss up” seats. 192 Id. 193 Id. 194 Id.

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and leaning Democratic seats, however, remained roughly the same under all three maps, hovering between 38 and 40.195
The drafters prepared and evaluated the partisan performance of at least another six statewide alternative maps.196 Each of these maps improved upon the anticipated pro-Republican advantage generated in the initial two draft plans. The total number of expected Republican seats now ranged between 57 and 60, and the number of swing seats was diminished to between 6 and 11.197 The number of Democratic seats again remained about the same under each draft map.198
The drafters sent their completed draft maps to Professor Gaddie, who created a visual “S” curve for each map.199 These “S” curves show how each map would operate within an array of electoral outcomes.200 To produce the “S” curves, Professor Gaddie calculated the expected partisan vote shares for each district.201 He then shifted the vote share of each district ten points in either direction, from 40% to 60%, and assigned a color to districts that “lean[ed]” towards, or were “safe” seats for that party.202 Professor Gaddie explained that his analysis “was designed to tease out a potential estimated vote” under a range of electoral scenarios, when either “the Democrats have a good year” or “the Republicans have a good year.”203 At bottom, the “S” curves—at least some of which were printed in large format and kept in the map room—allowed a non-statistician, by mere visual inspection, to assess the partisan performance of a particular map under all likely electoral scenarios. On one occasion, Professor Gaddie
195 Id. On the “Tale of the Tape,” see Tr. Ex. 283, the drafters did note that “Criteria to Monitor” included
total population deviation, split municipalities, split counties, incumbent pairings, and senate disenfranchisement. Additionally, Ottman created some spreadsheets that looked at disenfranchisement. See Tr. Ex. 225 (WRK32587 Responsive Spreadsheets). However, the defendants have not pointed to any evidence in the record that suggests that measures of traditional districting criteria were being scrutinized on a regular basis or with the intensity that partisan scores were being evaluated.
196 These were: Milwaukee_Gaddie_4_16_11_V1_B (Tr. Ex. 172, at 1); Statewide2_Milwaukee_Gaddie_ 4_16_V1_B (Tr. Ex. 172, at 2); Tad MayQandD (Tr. Exs. 364, 477); Joe Assertive (Tr. Exs. 366, 478); Tad Aggressive (Tr. Ex. 283); and Adam Aggressive (Tr. Ex. 283).
197 Tr. Exs. 172, 364.
198 Tr. Exs. 364, 366. 199 Tr. Ex. 134; see Tr. Exs. 263–82.
200 Tr. Ex. 161 (Gaddie Dep.), at 45. 201 Id. at 44. 202 Id. at 150–51. 203 Id. at 101.

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showed the “S” curves to Senator Fitzgerald and explained to the Senator “how to interpret” them.204
Over several days in early June, the drafters presented a selection of regional maps drawn from their statewide drafts, approximately three to four per region, to the Republican leadership. Along with these regional alternatives, the leadership “saw the partisan scores for the maps that [the drafters] presented to them in those alternatives.”205 Foltz testified during his deposition that although he could not recall a particular example, he was sure that he was asked by the leadership about the partisan performance of the various regional options.206
Following this meeting, the drafters amalgamated the regional alternatives chosen by the leadership. Foltz testified that “the draft map called team map emerged as a result of the … leadership’s choices at those meetings.”207 Under the Team Map, which was also referred to as the “Final Map,”208 the Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.209 In the Tale of the Tape, the drafters compared the partisan performance of the Team Map directly to the Current Map on each of these criteria.210 They highlighted specifically that under the Current Map, “49 seats are 50% or better,” but under the Team Map, “59 Assembly seats are 50% or better.”211
The Team Map underwent even more intense partisan scrutiny in a document
204 Id. at 75. 205 R.148 at 20. 206 Tr. Ex. 191 (Foltz Dep.), at 106. 207 R.147 at 80. 208 As we noted earlier, Foltz testified that if the “Team Map” was not “the final one that was pushed, put forward in the public domain, it was very close to it, and it was the result of that mashing process of taking the various regional alternatives and putting them all together.” Id. at 165. He further explained that the “Final Map” was the one “after the leaders got together and made the regional decisions and they were then merged together.” Id. at 62. If it was not identical to the map that “ultimately became Act 43, it[ wa]s probably fairly close.” Id.; see also Tr. Ex. 172, at 3–4; supra note 56. 209 The drafters in fact produced and evaluated several distinct versions of the Team Map, but each rendition is virtually identical. See Tr. Ex. 172, at 3–4 (Final Map); Tr. Ex. 467, at 1 (Team Map (Joe Aggressive)); id. at 2 (Team Map Ranking (Joe Aggressive 2)); id. at 3 (Team Map (6-15-11)). 210 Tr. Ex. 283. 211 Id.

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identified as “summary.xlsx.”212 The drafters divided the new Team Map districts into six categories of partisan performance, listing beside each district its “new incumbent” and its Republican vote share under the Current Map and the Team Map; the change in Republican vote share was the district’s “improvement” under the new plan.213 The drafters considered five districts to be “Statistical Pick Up[s],” meaning they were currently held by a Democratic incumbent but “move[d] to 55% or better” in Republican vote share under the new Team Map.214 Fourteen districts were grouped under the heading “GOP seats strengthened a lot,” meaning they were “[c]urrently held GOP seats that start[ed] at 55% or below that improve[d] by at least 1%” in Republican vote share.215 Eleven districts were “GOP seats strengthened a little,” meaning they “improve[d] less than 1%.”216 Only three districts were labeled “GOP seats weakened a little,” meaning they had “start[ed] at 55% or below” but “decline[d]” slightly in Republican vote share.217 Another three districts were “GOP seats likely lost,” meaning they had “drop[ped] below 45%” Republican vote share under the Team Map.218 Finally, the drafters noted four districts where Democrats were “weakened,” which were districts with “45% or better” Democratic vote share “that bec[a]me more GOP” under the Team Map.219 The drafters also identified twenty Republican Assembly members who enjoyed sufficiently comfortable partisan scores such that they could become “GOP donors to the team.”220 These were members of the Assembly who had partisan scores of 55% or greater and, therefore, could spread their partisan voting strength to politically weaker colleagues.221
212 Tr. Ex. 284, at 1. 213 Id. 214 Id. 215 Id. 216 Id. 217 Id. 218 Id. 219 Id. at 1–2. 220 Id. at 1. In his testimony concerning his post-drafting meetings with individual senators, see supra at 15, Ottman did not identify any senators who were reluctant to be “donors to the team.” 221 See supra at 14. In his testimony, Ottman stated that the “GOP donor” designation “simply indicate[d] a seat that had a lower percentage under that partisan metric than it started with.” R.148 at 29. We do not believe that this answer can be reconciled fully with the information on the spreadsheet. Specifically, the spreadsheet states that donors are “[i]ncumbents with numbers above 55% that donate to the team.” Tr. Ex. 284, at 1. The inclusion, on the spreadsheet, of the strength of the donors’ numbers, strongly suggest that they had political strength to spare and to share with other, perhaps more vulnerable,

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The Team Map also was sent to Professor Gaddie. The “S” curve demonstrates that this map would allow the Republicans to maintain a comfortable majority under likely voting scenarios; their statewide vote share could fall to 48%, and they still would preserve a 54 seat majority in the Assembly. The Democrats, by contrast, would need 54% of the statewide vote to capture a simple majority of Assembly seats.222
Once the map had been finalized, Foltz presented each Republican member of the Assembly with information on his or her new district. These memos provided a “[c]omparison of [k]ey [r]aces” in the new districts compared to the old.223 Specifically, the memoranda detailed what percentage of the population in the old and new districts voted for Republican candidates in representative statewide and national elections held since 2004. Importantly, the memoranda did not provide the individual legislators with any information about contiguity, compactness, or core population.
Additionally, Ottman made a presentation to the Republican caucus that highlighted the long-term effects of Act 43, as reflected in his prepared notes: “The maps we pass will determine who’s here 10 years from now,” and “[w]e have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.”224
districts. 222 See Tr. Ex. 282. Professor Mayer also conducted a swing analysis that evaluated the outcome of Act 43 under likely electoral scenarios. He, like Professor Gaddie, concluded that, under Act 43, “even when the Democrats receive 54 percent of the statewide vote, they still aren’t even close to a majority of the Assembly.” R.148 at 229.
223 Tr. Ex. 342.
224 Tr. Ex. 241, at 1 (emphasis added). Similarly, Ottman created talking-points memos for his meetings with Republican members of the Senate. These memos included information about population, where changes in the district’s population had occurred, and the geography of the new district, see, e.g., Tr. Ex. 242, at 1 (“Added East Troy and part of the town, as well as Mukwonago.”). Importantly, these also contained information on how the re-configured district had voted in national and statewide elections. See id. (noting, for example, that “Scott Walker won this new seat with 64.2%,” “McCain won with 51.5%,” and “Van Hollen 06 won with 59.4%”).
At trial, counsel for the plaintiffs cross-examined Ottman on statements that he had made during the joint public hearing on Act 43, which was held on July 13, 2011. See R.148 at 44–45. Plaintiffs’ counsel subsequently offered the transcript of the public hearing, see Tr. Ex. 353, into evidence, see R.148 at 45. The transcript includes testimony by Ottman and Foltz (although, in the transcript, he is identified as Holtz), as well as the statements and questions of several members of the Wisconsin Assembly and Senate. Counsel for the defendants made no objection to the admission of Ottman’s testimony from the public hearing, and we initially admitted that transcript for that limited purpose. Counsel for the plaintiffs, however, asked that the entire transcript be admitted; counsel for the defendants objected to its admission on the ground that it contained numerous statements from members of the Wisconsin

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In sum, from the outset of the redistricting process, the drafters sought to understand the partisan effects of the maps they were drawing. They designed a measure of partisanship and confirmed the accuracy of this measure with Professor Gaddie. They used this measure to evaluate regional and statewide maps that they drew. They labeled their maps by reference to their partisanship scores, they evaluated partisan outcomes of the maps, and they compared the partisanship scores and partisan outcomes of the various maps. When they completed a statewide map, they submitted it to Professor Gaddie to assess the fortitude of the partisan design in the wake of various electoral outcomes.
The map that emerged from this process reduced markedly the possibility that the Democrats could regain control of the Assembly even with a majority of the statewide vote. The map that would become Act 43 had a pickup of 10 Assembly seats compared to the Current Map.225 As well, if their statewide vote fell below 48%, the design of Act 43 ensured that the Republicans would maintain a comfortable majority.226
Finally, it is clear that the drafters were concerned with, and convinced of, the durability of their plan. Professor Gaddie confirmed the staying power of the Republican majority under the plan, and Ottman emphasized to the Republican caucus the long-term consequences of enacting the plan.227
legislature that were hearsay. See id. at 45. In response, plaintiffs’ counsel asserted that “it’s a public record. It’s an exception to the hearsay rule. It’s part of the legislative history of Act 43.” Id. at 46.
The transcript does not fall neatly within the public record exception to hearsay set forth in Federal Rule of Evidence 803(8). Namely, it is not the “record or statement of a public office,” and it does not set forth “the office’s activities” or “a matter observed while under a legal duty.” Id. (emphasis added).
The second possible basis for its admission—that the transcript is “part of the legislative history of Act 43”—is somewhat more persuasive. The transcript provides useful background information on Act 43’s path to enactment and on the types of concerns voiced by the legislators. In this way, it is not being offered “to prove the truth of the matter[s] asserted in the statement[s]” of the individuals participating in the hearing. Consequently, it falls outside the definition of hearsay set forth in Federal Rule of Evidence 801(c). 225 See Tr. Ex. 283. 226 See Tr. Ex. 282 (Gaddie “S” curve predicting Republicans would win 54 seats with 48% of the vote).
227 The plaintiffs argue that the “[s]ecret [d]rafting” of Act 43 and the “[e]xclusion of Democrats” from the drafting process are further evidence of illicit intent. See R.155 at 4–5. We find this evidence less probative of whether Act 43 was intended to entrench the Republicans in power. Witnesses for both the plaintiffs and the defendants testified concerning the strength and operation of the caucus system in Wisconsin, and there appears to be very little effort to woo colleagues from “across the aisle” either to sponsor or to

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We conclude, therefore, that the evidence establishes that one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power.
b. Alleged shortcomings in the evidence
The defendants point to the miscalculation of the composite measure, to limitations of the composite measure itself, and to the drafters’ lack of reliance on Professor Gaddie’s analysis as evidence that they did not have the requisite intent to subjugate the voting strength of Democrats. The defendants first note that the drafters’ partisan score “was not even correct.”228 Because of an error in the data for the 2006 Governor’s race—one of the components for their composite measure—the drafters’ numbers were skewed, and the resulting partisan scores were more pro-Republican than if the scores had been calculated with the correct data.229 However, as the plaintiffs note, these errors may diminish the reliability of the composite measure, but they are irrelevant to the drafters’ intent.230
support legislation originating with the other party. See, e.g., R.147 at 33 (Whitford explaining that “it’s extremely difficult to put together a bipartisan coalition to pass something in either … the Assembly or the Senate”); R.148 at 51 (Ottman describing the process of drafting legislation and noting that “[u]sually it’s developed among members of your own party”). Although we might find the Wisconsin legislature’s procedures to be counterproductive, the actions on which the plaintiffs rely appear simply to be par for the legislative course. We do not discount the possibility, however, that, in some other states, these actions may suggest a deviation from regular procedures from which an inference of discriminatory intent may arise.
Finally, the plaintiffs believe that the defendants’ actions in “requiring municipalities to design wards that followed the new districts’ boundaries” is further evidence of an unconstitutional motive. R.155 at 5. Although Wisconsin never has passed legislation reversing the order in which wards are drawn, this idea is not a new one. At trial, the defendants presented undisputed evidence that, following the 2000 census, Democratic Senate Majority Leader Chvala “drafted a bill that … made changes that would allow the state to act earlier [to draw wards] or put a deadline for municipalities to act.” R.148 at 94. 228 R.153 at 8; see supra at 9–10. 229 See R.153 at 8. 230 See R.155 at 10. Professor Mayer also testified that, regardless of the drafters’ calculation errors, the partisan measure still correlated highly with Professor Gaddie’s regression model. See R.148 at 209.
After Professor Mayer had offered this testimony, counsel for the defendants interposed an objection that Professor Mayer’s testimony was not “based on firsthand knowledge and [it was] not in his report.” Id. at 210. We reserved ruling and allowed counsel for the plaintiff to continue this line of

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The defendants also disparage the notion that “the partisan scores were a crystal ball with predictive powers ensuring that Act 43 would lock Democrats out from seats that leaned Republican.”231 They contend that their composite did not have a “forward-looking component,” but was simply “an average of past elections applied to the new districts.”232 We reject as not worthy of belief the assertion that the drafters would have expended the time to calculate a composite score for each district on the statewide maps simply to gain an historical understanding of voting behavior. Their measure was only useful to them—and the exercise of calculating the composite was only worth the effort—if it helped them assess how Republican representatives in the newly created districts likely would fare in future elections.
Moreover, each completed map was submitted to Professor Gaddie, who then generated an “S” curve. The “S” curves were designed to discern “the political potential of the district.”233 Professor Gaddie explained that, when he used the term “potential,” he meant “[i]f you had an election in the future, how might it turn out. So when I say potential … this is our best estimate of what a non-incumbent election would look like given a particular set of circumstances, depending on whether one party is stronger or weaker.”234
According to the defendants, however, Professor Gaddie’s “S” curves are irrelevant to the issue of intent because the drafters “didn’t look at them much.”235 We cannot accept that estimation of the importance of Professor Gaddie’s work to the drafters. The record makes clear that the drafters sent Professor Gaddie their completed maps for which he produced “S” curves. Both Ottman and Foltz testified that, when the “S” curves were generated, Professor Gaddie provided an explanation of what they showed.236 That Ottman may not have used the “S” curves much once they were
questioning. Professor Mayer answered only two additional questions on the subject following the objection. At the time counsel objected, he admitted that he already had let related questioning “go on for a while,” id.; indeed, Professor Mayer had given four pages of testimony on the subject prior to counsel’s objection. Because the bulk of Professor Mayer’s testimony on the calculation errors was offered prior to counsel’s objection, we now overrule counsel’s objection as untimely. 231 R.153 at 8. 232 R.147 at 47. 233 Tr. Ex. 161 (Gaddie Dep.), at 100. 234 Id. at 100–01. 235 R.147 at 73. 236 See R.148 at 18; R.147 at 73.

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generated,237 or that Foltz was not able to explain their full significance at trial, five years later,238 does not diminish the fact that the drafters sought, and received, Professor Gaddie’s expert analysis on how each map would behave under the range of likely electoral scenarios.239
Finally, the defendants contend that the partisan intent shown by the evidence in this case cannot be considered invidious because Act 43’s districts are consistent with traditional districting principles. However, as we have explained earlier, a plan that adheres to those principles can violate the Equal Protection Clause. Here, the evidence shows that one purpose of enacting Act 43 was to secure Republican control of the Wisconsin Assembly. In particular, the history of Act 43 reveals that the drafters created several alternatives that resulted in a less severe partisan outcome. Of the maps presented to them, the Republican leadership opted for a map that significantly increased the number of Republican-leaning districts compared to the Current Map. Further, the memos prepared for the Assembly members informed them whether the district number had changed, whether adjustment to the district population was necessary based on the census numbers, and provided a “[c]omparison of [k]ey [r]aces” in the new districts compared to the old, but provided little information regarding traditional districting factors.240
These facts, in tandem with the overwhelming number of reports and memoranda addressing the partisan outcomes of the various maps, lead us to conclude that, although Act 43 complied with traditional redistricting principles, it nevertheless
237 See R.148 at 19. 238 See R.147 at 73.
239 In their post-trial reply brief, the defendants also attempt to discount the importance of Professor Gaddie’s “S” curves by referencing his testimony that his “S” curves do not “provide any information on the durability of the districts over time.” R.156 at 7 (quoting Tr. Ex. 161 (Gaddie Dep.), at 182). Defendants interpret this answer to mean that the “S” curves do not speak to the likely voting behavior, over time, of the newly created districts. We do not believe that this interpretation can be reconciled with the other, detailed testimony that Professor Gaddie provided concerning the purpose of the “S” curves. We believe a better reading—and one consistent with Professor Gaddie’s other testimony—is that his “S” curves do not speak to how the districts’ constituencies may change over time. 240 See, e.g., Tr. Ex. 342, at 1. In the memos Foltz provided to members of the Assembly, he attached the maps of the new districts. See, e.g., id. at 2. In Ottman’s talking-points memos for his meetings with members of the Senate, he sometimes, but not always, included a brief description of how the district had changed; for instance, the memo for Senate District 11 states: “Added East Troy and part of the town, as well as Mukwonago.” Tr. Ex. 242, at 1. The legislators were not given compactness scores, core population numbers, or the number of municipal and county splits.

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had as one of its objectives entrenching the Republicans’ control of the Assembly.241 B. Discriminatory Effect of Act 43
Act 43 also achieved the intended effect: it secured for Republicans a lasting Assembly majority. It did so by allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%. Through the combination of the actual election results for 2012 and 2014, the swing analyses performed by Professors Gaddie and Mayer, as well as the plaintiffs’ proposed measure of asymmetry, the efficiency gap (or “EG”), the plaintiffs have “show[n] a burden, as measured by a reliable standard, on [their] representational rights.” LULAC, 548 U.S. at 418 (opinion of Kennedy, J.).
1.
It is clear that the drafters got what they intended to get. There is no question that Act 43 was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats. In the Tale of the Tape, the drafters compared the partisan performance of the Team Map directly to the Current Map.242 Where the Current Map had only “49 [Assembly] seats” that were “50% or better” for Republicans, the Team Map increased that number by ten so that “59 Assembly seats” were designated as “50% or better” for Republicans.243 Moreover, under the Team Map that became Act 43, Republicans expected the following seat distribution: 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.244
Professor Mayer explained the significance of this distribution at trial.245 Using the baseline partisan measure that he used to create his Demonstration Plan,246 Professor Mayer created a histogram that graphed the predicted percentage of Republican vote of each district (by 5% increments) on the x axis, and the number of districts that fell into
241 We also do not believe that the record supports a conclusion that the drafters only wanted to improve their position incrementally. See Dissent at 125–26. Had this, indeed, been their purpose, they could have settled on one of the maps that provided a pickup of a smaller number of Republican seats. See supra at 65–66. 242 Tr. Ex. 283. 243 Id. 244 Id. 245 See R.148 at 183–85. 246 See supra at 24–25; see also infra at 107–08.

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each 5% increment on the y axis.247 The graph reveals that Act 43 includes 42 districts with predicted Republican vote percentages of between 50 and 60%; only seventeen districts have predicted Democratic vote percentages of between 50 and 60%.248 This demonstrates that, under Act 43, Republican voters are distributed over a larger number of districts so that they can secure a greater number of seats; in short, “Republicans are distributed in a much more efficient manner than Democrats.”249 Professor Mayer’s graph also reveals that there are only 15 districts with a predicted Republican vote percentage of 60% or greater; this is compared to 25 districts that have a predicted Democratic vote percentage of 60% or greater. In other words, Democrats have been packed into “safe” Democratic districts.
The 2012 and 2014 election results reveal that the drafters’ design in distributing Republican voters to secure a legislative majority was, in fact, a success. In 2012, Republicans garnered 48.6% of the vote, but secured 60 seats in the Assembly.250 In 2014, Republicans increased their vote percentage to 52 and secured 63 Assembly seats.251
Moreover, Professors Gaddie and Mayer testified that, consistent with what actually occurred in 2012 and 2014, under any likely electoral scenario, the Republicans would maintain a legislative majority. After Professors Gaddie and Mayer developed their regression models to measure baseline partisanship,252 each conducted a separate swing analysis to demonstrate this outcome. “What a swing analysis does,” Professor Mayer explained, “is ask the question … what might happen” under different electoral conditions.253 To determine this, “the statewide vote percentage” is altered by a fixed amount, typically in one-percentage-point increments, across all districts.254 “It’s a way of, generally speaking, estimating what is a plausible outcome given a change in the statewide vote, which in this case a change in the statewide vote is a proxy for a different election environment, what might happen if there’s a pro-Democratic swing or a pro-Republican swing.”255
247 See Tr. Ex. 15 (attached as Appendix 2 to this opinion); see also Tr. Ex. 107. 248 See Tr. Ex. 15. 249 R.148 at 184. 250 R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 70, ¶ 289; id. at 69, ¶ 285. 251 Id. at 70, ¶ 290. 252 See supra at 7–8. 253 R.148 at 222. 254 See id. 255 Id. at 223. There was consensus among the experts—Professors Gaddie, Mayer, Jackman, and

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Professor Gaddie’s swing analysis is contained in his “S” curves. His “S” curves include the electoral outcome for each map based on Republican statewide vote percentage ranging from 40% to 60%. The “S” curve for the Team Map demonstrates that, to maintain a comfortable majority (54 of 99 seats), Republicans only had to maintain their statewide vote share at 48%.256 The Democrats, by contrast, would need more than 54% of the statewide vote to obtain that many seats.257
Professor Mayer’s swing analysis did not include the wide-ranging electoral scenarios set forth in Professor Gaddie’s “S” curves. Instead, Professor Mayer included only likely electoral scenarios in his analysis. He looked at the electoral outcomes dating back to 1992 and determined that the maximum statewide vote share the Democrats had received was 54% in 2006, or roughly 3% more than they had received in 2012.258 The minimum statewide vote share Democrats had received was 46% in 2010, or roughly 5% less than they had received in 2012.259 Professor Mayer’s swing analysis, therefore, looked at how Act 43 would fare under these two scenarios—the Democrats receiving 46% of the vote, and the Democrats receiving 54% of the vote. Adjusting the

Goedert—that some type of swing analysis was the accepted method of testing how a particular map would fare under different electoral conditions. See, e.g., R.149 at 216–17 (Professor Jackman testifying concerning the application of a uniform swing analysis); R.150 at 181 (Professor Goedert employing a uniform swing analysis).
256 See Tr. Ex. 282; R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 21, ¶ 70.
257 See Tr. Ex. 282. The following chart summarizes how the “S” curve for the Team Map predicted how each party would fare under different electoral outcomes:

% vote received (D)

seats won (D)

% vote received (R)

seats won (R)

47

33

47

50

48

35

48

54

49

39

49

56

50

41

50

58

51

43

51

60

52

45

52

64

53

49

53

66

54

53

54

67

Id.; R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 70, ¶ 289; id. at 69, ¶ 285.

258 R.148 at 225. 259 See id.

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Democratic vote share in each district by these amounts,260 Professor Mayer predicted that a 5% decrease in Democratic vote share would have no effect on the allocation of legislative seats; the Republicans would keep the 60 seats they had, but would not increase their numbers.261 When Democratic vote share increased by 3% to 54%, Professor Mayer predicted that the Democrats would secure only 45 seats.262
However, both Professor Gaddie and Professor Mayer underestimated the strength of Act 43 when it came to securing and maintaining Republican control. When the Republican vote share dropped in 2012 to 48.6%, Republicans still secured 60 seats— 10 more than what Professor Gaddie’s “S” curve predicted.263 Additionally, when the Republican vote share increased in 2014 to 52%, the Republicans increased the number
260 Professor Mayer’s goal was to “make a prospective estimate of what would happen in the subsequent election” to the 2012 races. R.149 at 77. He therefore based his analysis on the observed results in 2012, rather than a partisan baseline measure. R.148 at 226. He assumed that all members of the Assembly would run for re-election, because “we don’t know where incumbents will or will not run and … this is a uniform way” of accounting for an incumbency effect. R.149 at 91–92. To “calculate the incumbency advantage,” Professor Mayer “us[ed] the underlying data” in each district, so that the effect was “not … identical in every district.” Id. at 87.
261 Professor Mayer’s inference from the chart was “that the way in which Act 43 has been drawn has already secured what in practice amounts to the most you can practically do.” R.148 at 229. Of course, in 2014, the Republican statewide vote percentage increased to 52%, and the number of seats that they secured was not stagnant. 262 See Tr. Ex. 117. Professor Jackman also presented a swing analysis that was specific to Wisconsin. R.149 at 243–48; Tr. Ex. 495. Professor Jackman did not provide this analysis during discovery, but we admitted the evidence after the defendants conceded that they had not been prejudiced by the delay. R.149 at 292.
Professor Jackman relied on the actual results from 2012 in each district in Wisconsin and then adjusted the vote in each district based on a 5% swing in each party’s vote share. R.149 at 243–49. He then calculated the EG for each of these vote-share levels. Professor Jackman observed the same trend as Professor Mayer: as the Republican vote share went down, the Republicans would not lose many seats; as the Republican vote share went up, the Republicans did not pick up many more seats (suggesting that the Republicans discovered a way to maximize the seats they had any potential of winning with the smallest possible percentage of the vote). Tr. Ex. 495.
After trial, the plaintiffs brought to our attention some discrepancies between our list of trial exhibits, see R.146, and the rulings that we had made during the course of trial. See R.151 (Motion to Admit Certain Trial Exhibits). For clarification, the following exhibits were admitted during trial: Tr. Ex. 122, see R. 150 at 291; Tr. Ex. 125, see R. 150 at 291; Tr. Ex. 486, see R.148 at 199; Tr. Ex. 487, see R.149 at 24; Tr. Ex. 488, see R.159 at 293; Tr. Exs. 492–495, see R. 149 at 293; and Tr. Ex. 581, see R.150 at 255.
263 With respect to the Democratic wave election, therefore, it would seem that Professor Mayer’s swing analysis correctly predicted that, even with 54% of the statewide vote share, the Democrats would not secure a majority in the Assembly.

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of seats they held by 3, as opposed to their seat share being stagnant, as predicted by Professor Mayer.264 In other words, the actual election results suggest that Act 43 is more resilient in the face of an increase in the statewide Democratic vote share, and is more responsive to an increase in the statewide Republican vote share, than either Professor Gaddie or Professor Mayer anticipated.
The fact that Democrats and Republicans were treated differently under Act 43 becomes even more stark when we examine the number of seats secured when the parties obtain roughly equivalent statewide vote shares. In 2012, the Democrats received 51.4% of the statewide vote, but that percentage translated into only 39 Assembly seats. A roughly equivalent vote share for Republicans (52% in 2014), however, translated into 63 seats—a 24 seat disparity. Moreover, when Democrats’ vote share fell to 48% in 2014, that percentage translated into 36 Assembly seats. Again, a roughly equivalent vote share for Republicans (48.6% in 2012) translated into 60 seats— again a 24 seat disparity.265 The evidence establishes, therefore, that, even when Republicans are an electoral minority, their legislative power remains secure.266
2.
The record here is not plagued by the infirmities that have precluded the Court, in previous cases, from concluding that a discriminatory effect has been established. In Bandemer, the Court made clear that plaintiffs could not establish a constitutional
264 At this end of the spectrum, Professor Gaddie’s prediction was more accurate; his “S” curve predicted that a 52% vote share would translate into 64 Republican seats.
265 At trial, Foltz testified that the drafters’ calculation of the composite partisanship measure, at least for some districts, was flawed because of data errors related to the 2006 Governor’s race. We agree that these errors reduce the composite’s reliability as a measure. However, in reaching our conclusion that the plaintiffs have met their evidentiary burden, we have not relied on the drafters’ composite measure of partisanship, but on actual election results and analyses performed by Professors Gaddie and Mayer, which were not infected by the faulty data. Moreover, as explained in supra note 230, Professor Mayer testified that, regardless of the drafters’ calculation errors, the partisan measure still correlated highly with Professor Gaddie’s regression model. See R.148 at 209.
266 The Dissent questions whether the Republicans actually can entrench themselves in power given that a popularly elected Democratic governor could prevent the Republicans from enacting their agenda. See Dissent at 123. Although the governorship may be a check on Republican legislative efforts, it also cannot secure for Democrats the opportunity to pass an agenda consistent with their policy objectives.
The Dissent also doubts whether the plaintiffs have been damaged by their inability to secure a political majority. See Dissent at 145–46. According to the Dissent, Republican legislators who win by slimmer margins will be more receptive to the needs of their Democratic constituents. Although this argument might have some intuitive appeal in other political contexts, it is not supported by the record here, where there is evidence of a strong caucus system. See supra at 54; infra at 115.

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violation based “on a single election.” 478 U.S. at 135 (plurality opinion). This was because
Indiana is a swing State. Voters sometimes prefer Democratic candidates, and sometimes Republican. The District Court did not find that because of the 1981 Act the Democrats could not in one of the next few elections secure a sufficient vote to take control of the assembly. … The District Court did not ask by what percentage the statewide Democratic vote would have had to increase to control either the House or the Senate. The appellants argue here, without a persuasive response from the appellees, that had the Democratic candidates received an additional few percentage points of the votes cast statewide, they would have obtained a majority of the seats in both houses. Nor was there any finding that the 1981 reapportionment would consign the Democrats to a minority status in the Assembly throughout the 1980’s or that the Democrats would have no hope of doing any better in the reapportionment that would occur after the 1990 census. Without findings of this nature, the District Court erred in concluding that the 1981 Act violated the Equal Protection Clause. Id. at 135–36. The record here answers the shortcomings that the Bandemer plurality identified. First, we now have two elections under Act 43. In 2012, the Democrats garnered 51.4% of the vote, but secured only 39 seats in the Assembly—or 39.3% of the seats.267 In 2014, the Democrats garnered 48% of the vote and won only 36 seats—or 36.4% of the seats.268 If it is true that a redistricting “plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination,” LULAC, 548 U.S. at 419 (opinion of Kennedy, J.), then a plan that deviates this strongly from the distribution of statewide power suggests the opposite.
Moreover, as described in some detail above, Professor Gaddie’s “S” curve and Professor Mayer’s swing analysis reveal that the Democrats are unlikely to regain control of the Assembly. And Act 43 has proven even more resistant to increases in Democratic vote share, and more responsive to increases in Republican vote share, than was predicted. Consequently, it is not the case that “an additional few percentage points of the votes cast statewide” for the Democrats will yield an Assembly majority. Bandemer, 478 U.S. at 135 (plurality opinion).269
267 R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 52, ¶ 257. 268 Id., ¶ 258. 269 The Dissent notes that, in 2012, the seats-to-vote ratio under Act 43 was similar to that under the

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Furthermore, because we have the actual election results to confirm the reliability of Professor Gaddie’s model and “S”-curve analysis, we are not operating only in the realm of hypotheticals—a prospect that at least one member of the Court in LULAC found troubling. In LULAC, Justice Kennedy commented on a proposal by one of the amici to adopt a partisan-bias standard, which would compare how the two major parties “would fare hypothetically if they each (in turn) had received a given percentage of the vote.” 548 U.S. at 419 (opinion of Kennedy, J.) (internal quotation marks omitted). Justice Kennedy explained that,
[e]ven assuming a court could choose reliably among different models of shifting voter preferences, we are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs. Presumably such a challenge could be litigated if and when the feared inequity arose. Id. at 420. Professor Gaddie’s “S” curves and Professor Mayer’s swing analysis, like a partisan-bias analysis, depend upon a hypothetical state of affairs: they assume a uniform increase or decrease in vote share across all districts—something that does not occur in actual elections. Here, however, the predictive work of the professors is combined with the results of two actual elections in which the feared inequity did arise.
3.
While the evidence we have just described certainly makes a firm case on the question of discriminatory effect, that evidence is further bolstered by the plaintiffs’ use of the “efficiency gap,” or EG for short, to demonstrate that, under the circumstances presented here, their representational rights have been burdened. We begin with an explanation of the EG. Because the EG is a new measure and was the focus of extensive testimony at trial, we believe it appropriate to examine its value and shortcomings in detail.
a.
apportionment scheme in Bandemer and concludes, therefore, that our case cannot be distinguished from Bandemer. See Dissent at 119. As we have demonstrated in the above discussion, however, the Court’s primary concern in Bandemer was not that the numbers were not sufficiently egregious, but that there was no evidence that the gerrymander was durable. Here we have two elections under Act 43, as well as swing analyses conducted by three experts, all of which support the conclusion that Act 43’s partisan effects will survive all likely electoral scenarios, throughout the decennial period.

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The allegations in this case are that Act 43’s drafters employed two of the traditional methods of gerrymandering in order to diminish the electoral power of Democratic voters in Wisconsin: “packing” and “cracking.” Packing refers to the concentration of a party’s voters in a limited number of districts; as a result, the party wins these packed districts by large margins.270 Cracking, on the other hand, is the division of a party’s voters across a number of districts such that the party is unable to achieve a majority in any.271 The EG is a measure of the degree of both cracking and packing of a particular party’s voters that exists in a given district plan, based on an observed electoral result.272
The EG calculation is relatively simple. First, it requires totaling, for each party, statewide, (1) the number of votes cast for the losing candidates in district races (as a measure of cracked voters), along with (2) the number of votes cast for the winning candidates in excess of the 50% plus one votes necessary to secure the candidate’s victory (as a measure of packed voters).273 The resulting figure is the total number of “wasted” votes for each party.274 These wasted vote totals are not, of themselves, independently significant for EG purposes; rather, it is the comparative relationship of one party’s wasted votes to another’s that yields the EG measure.275 The EG is the difference between the wasted votes cast for each party, divided by the overall number of votes cast in the election.276 When the two parties waste votes at an identical rate, the plan’s EG is equal to zero.277 An EG in favor of one party (Party A), however, means that Party A wasted votes at a lower rate than the opposing party (Party B).278 It is in
270 R.1 at 3, ¶ 5; see supra at 17.
271 R.1 at 3, ¶ 5. 272 Id. at 15, ¶¶ 49–50; R.149 at 170–71.
273 R.149 at 181–82.
274 The votes are “wasted” in the sense that votes cast for losing candidates do not help to generate seats for the party and that votes cast for winning candidates in excess of 50% plus one could have been deployed elsewhere to greater effect. Id. at 182; see also supra note 79.
275 R.149 at 171–72.
276 This can be expressed mathematically in the following formula: EG = WB – WA
n n
R.34 at 16; R.149 at 181–82.
277 R.149 at 181–82.
278 In some documents in the record, negative EG values indicate higher wasted vote rates for Democrats compared to Republicans (i.e., a pro-Republican EG), and positive EG values indicate the opposite.

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this sense that the EG is a measure of efficiency: because Party A wasted fewer votes than Party B, Party A was able to translate, with greater ease, its share of the total votes cast in the election into legislative seats. Put simply, an EG in Party A’s favor means it carried less electoral dead weight; its votes were, statistically, more necessary to the victories of its candidates, and, consequently, it secured a greater proportion of the legislative seats than it would have secured had Party A and Party B wasted votes at the same rate.
In a related sense, the EG can be viewed as a measure of the proportion of “excess” seats that a party secured in an election beyond what the party would be expected to obtain with a given share of the vote.279 In a purely proportional representation system, a party would be expected to pick up votes and seats at a one-to-one ratio, i.e., for every additional percentage of the statewide vote the party gains, it should also gain a percentage in the share of the seats.280 Based on decades of observed historical data, however, the parties’ experts agreed that with single-member, simple-plurality systems like Wisconsin’s, we can expect that for every 1% increase in a party’s vote share, its seat share will increase by roughly 2%.281 Thus, a party that gets 52% of the statewide vote should be expected to secure 54% of the legislative seats. If the party instead translates its 52% of the vote into 58% of the seats, the district plan has demonstrated an EG of 4% in favor of that party (the difference between the expected seat share and the actual seat share).
Both Professors Mayer and Jackman calculated the EG for the 2012 Assembly elections in Wisconsin. In his analysis, Professor Mayer employed the “full method,” which requires aggregating, district-by-district, the wasted votes cast for each party. Applying this methodology, he determined that Act 43 yielded a pro-Republican EG of 11.69%.282 Professor Jackman, however, used the “simplified method,”283 that assumes equal voter turnout at the district level. His calculations estimated a pro-Republican EG of 13% for the 2012 election. Professor Jackman also calculated an EG for the 2014 election; that calculation resulted in a pro-Republican EG of 10%.284
279 Tr. Ex. 34, at 5. 280 Id. at 11. 281 R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 28, ¶¶ 105–06. 282 See Tr. Ex. 2, at 46. 283 See supra note 88. 284 Tr. Ex. 34, at 5–6.

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Professor Jackman also conducted an historical analysis of redistricting plans which compared the trends in efficiency gaps across a wide variety of states over the last forty years (a total of 786 state legislative elections).285 He observed that an EG in the first year after a districting plan is enacted bears a relatively strong relationship to the efficiency gap over the life of a plan.286 The party that “wastes” more votes in the first election year is likely to continue “wasting” more votes in future elections.
Relatedly, Professor Jackman conducted two additional analyses which suggest that an efficiency gap above 7% in any districting plan’s first election year will continue to favor that party for the life of the plan. First, Professor Jackman compared districting plans across a wide variety of states, and determined that over 95% of plans with an EG of at least 7% will never have an EG that favors the opposite party.287 Second, Professor Jackman conducted a “swing analysis” of all redistricting plans since 2010 and determined that nearly all plans that resulted in a 7% efficiency gap favoring one party in the first election year will retain an efficiency gap that favors that same party, even when one adjusts a party’s statewide vote share by five points.288
Professor Jackman then compared his EG estimates for Act 43 with the historical EG estimates from other states. Given historical trends and averages, he opined that Wisconsin’s plan would have an average pro-Republican efficiency gap of 9.5% for the entire decennial period.289 Therefore, in his expert opinion, Wisconsin Democrats would continue to have a less effective vote for the life of the plan.290 Barring an “unprecedented political earthquake,” Democrats would be at an electoral disadvantage for the duration of Act 43.291
Professor Jackman also presented a swing analysis that was specific to Wisconsin.292 He relied on the actual results from 2012 in each district in Wisconsin and
285 R.149 at 229–33. 286 Id. at 233. In his rebuttal report, Dr. Jackman notes that a plan with an initial pro-Republican efficiency gap of 7% will have a plan-average efficiency gap of approximately 5.3%. See Tr. Ex. 83 at 16. 287 R.149 at 224–40. 288 Tr. Ex. 93; R.149 at 215–24. This was the basis for the plaintiffs’ proposed threshold for liability. See supra notes 81 and 132, and accompanying text. 289 Tr. Ex. 83, at 15–17; R.149 at 232 (describing Act 43’s lifetime average efficiency gap as “in the neighborhood of negative ten percent”). 290 R.149 at 233 (opining that he was “[v]irtually certain” of this outcome, “[v]irtually 100 percent”). 291 Id. at 232. 292 R.149 at 243–48; Tr. Ex. 495.

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then adjusted the vote in each district based on a 5% swing in each party’s vote share.293 He then calculated the EG for each of these vote-share levels. Professor Jackman observed that, even with a 5% swing in the Democrats’ favor, the EG would not drop below 7%.294
As we already have seen, this more efficient distribution of Republican voters has allowed the Republican Party to translate its votes into seats with significantly greater ease and to achieve—and preserve—control of the Wisconsin legislature. In both elections held under Act 43, the Republicans obtained a far greater proportion of the Assembly’s 99 seats than they would have without the leverage of a considerable and favorable EG. In 2012, the Republicans won 61% of Assembly seats with only 48.6% of the statewide vote, resulting in a 13% EG in their favor. In 2014, the Republicans garnered 52% of the statewide vote but secured 64% of Assembly seats, resulting in a pro-Republican EG of 10%.295 Thus, the Republican Party in 2012 won about 13 Assembly seats in excess of what a party would be expected to win with 49% of the statewide vote, and in 2014 it won about 10 more Assembly seats than would be expected with 52% of the vote.
Moreover, the expert testimony before us indicates that the Republican Party’s comparative electoral advantage under Act 43 will persist throughout the decennial period; Democratic voters will continue to find it more difficult to affect district-level outcomes, and, as a result, Republicans will continue to enjoy a substantial advantage in converting their votes into seats and in securing and maintaining control of the Assembly.
b.
The defendants have made a number of legal, methodological, and policy-based attacks against judicial use of the EG as a measure of a district plan’s partisan effect. We begin with their claim that use of the EG is foreclosed by Supreme Court precedent. The Supreme Court has made clear that the Constitution does not require that a map result in each party gaining a share of the legislative seats in proportion to their share of the statewide vote. LULAC, 548 U.S. at 419 (opinion of Kennedy, J.) (“To be sure, there is no
293 R.149 at 243–49. 294 Tr. Ex. 495. 295 By way of comparison, if the EG had been 0, that is, the Republicans and Democrats had been wasting votes at the same rate, the Republicans would have secured approximately 47 seats with 48.6% of the vote and would have secured 53 seats with 52% of the vote.

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constitutional requirement of proportional representation ….”).296 The defendants have argued throughout this action that this precept forecloses the use of any metric that employs a votes-to-seats relationship as its starting point to measure a plan’s partisan effect. The EG, they say, is rooted in a baseline requirement that a district plan deliver hyper-proportional representation in the form of the 2-to-1 seats-to-votes ratio described above and is therefore unavailable for use as a measure of discriminatory effect.297
We cannot accept this argument. To say that the Constitution does not require proportional representation is not to say that highly disproportional representation may not be evidence of a discriminatory effect. Indeed, acknowledging that the Constitution does not require proportionality, Justice Kennedy observed in LULAC that “a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority.” 548 U.S. at 419 (opinion of Kennedy, J.).298 We do not believe, therefore, that the Constitution precludes us from looking at the ratio of votes to seats in assessing a plan’s partisan effect.299
296 See also Vieth, 541 U.S. at 286–88 (plurality opinion) (stating that the proposed effects standard that a map not be able to “thwart [a party’s] ability to translate a majority of votes into a majority of seats” “rests upon the principle that groups … have a right to proportional representation” and observing that “the Constitution contains no such principle”); id. at 308 (Kennedy, J., concurring in the judgment) (“The fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth’s congressional delegation. There is no authority for this precept.”). 297 See supra note 88 and at 82.
298 According to the Dissent, saying that highly disproportional representation may be evidence of discriminatory intent is tantamount to making proportional representation a constitutional requirement. See Dissent at 138. The Dissent, however, is conflating the evidence of a constitutional violation with a violation itself. As we already have explained, in order to establish a constitutional violation a plaintiff must show that the drafters “place[d] a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation.” See supra at 56. Thus, a districting map that produces results significantly out of proportion with a party’s voting strength is evidence that the drafters of the map have erected such an impediment. 299 This reading finds a constitutional analogue in the malapportionment context. See Brown v. Thomson, 462 U.S. 835, 842–43 (1983) (explaining that “minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination,” but finding discriminatory effects in “plan[s] with larger disparities in population” (internal quotation marks omitted)). That population deviation is measured in relation to equal apportionment as a baseline—an outcome that the Constitution does not require in the state legislative context—does not make it any less a measure of discriminatory effect.

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As it has been presented here, the EG does not impermissibly require that each party receive a share of the seats in proportion to its vote share. Rather, the EG measures the magnitude of a plan’s deviation from the relationship we would expect to observe between votes and seats. We do not believe Vieth or LULAC preclude our consideration of the EG measure.300
We turn next to what are best described as methodological and operational critiques of the EG measure. First, the defendants point out that the plaintiffs have proposed two distinct methods for calculating the EG. The differing approaches can yield materially different EG values, which, in turn, will produce uncertainty in the maps that should be subject to judicial scrutiny. As explained previously, Professor Mayer employed the “full method,” which included aggregating every district’s wasted votes for each party. Professor Jackman used the “simplified method” that assumes equal voter turnout at the district level.301 These two methods produce identical results when voter turnout is equal across districts; however, where voter turnout varies, as it does in Wisconsin, the EG measure will differ depending on the method used.
Although we view the full method as preferable because it accounts for the reality that voters do not go to the polls at equal rates across districts, we do not believe that this calls into question Professor Jackman’s use of the simplified method in his analysis. Professor Goedert in his expert report described the simplified method as “an appropriate and useful summary measure” for calculating the EG,302 and the parties have stipulated that the shortcut’s implied 2-to-1 votes-to-seats relationship reflects the “observed average seat/votes curve in historical U.S. congressional and legislative elections.”303 Were there record evidence indicating that Professor Jackman’s shortcut did not correlate highly with both the full method and electoral reality, we would have reason to doubt its validity. Because this is not the case here, we are not troubled by the
300 We note that in LULAC a majority of the Justices discussed, with varying degrees of skepticism, another measure of asymmetry called “partisan bias.” Justice Kennedy was particularly reluctant to endorse this measure because it might be used to invalidate a plan “based on unfair results … in a hypothetical state of affairs” rather than in an observed electoral result. LULAC, 548 U.S. at 420 (opinion of Kennedy, J.). The EG, which is calculated using the results of actual elections, does not suffer from this drawback and, we conclude, does not raise the same concern articulated by Justice Kennedy. 301 See supra at 82–83.
302 Tr. Ex. 546, at 5. 303 See R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 28, ¶ 105; Tr. Ex. 546, at 6. The plaintiffs attribute the high correlation between the full and simplified methods to the fact that districts must be equal or nearly equal in population, which they say results in generally small and nonpartisan turnout deviations across districts. R.134 at 75.

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existence of distinct methods of calculating the EG. Moreover, we are not addressing a legislative plan that is at the statistical margins. In this case, both methods yield an historically large, pro-Republican EG.
The defendants also contend that the EG, as an indicator of partisan gerrymandering, is both overinclusive and underinclusive. They presented evidence that districting plans, which had been put in place by courts, commissions, or divided governments, sometimes register high EG values.304 Conversely, the defendants pointed to several congressional districting plans that are commonly understood as partisan gerrymanders but registered low EG values or even EG values favoring the party that did not create the districting map. We do not share this particular concern. If a nonpartisan or bipartisan plan displays a high EG, the remaining components of the analysis will prevent a finding of a constitutional violation. See, e.g., Arlington Heights, 429 U.S. at 264–65 (“[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.”); Washington, 426 U.S. at 240 (stating the “basic equal protection principle that the invidious quality of a law … must ultimately be traced to a racially discriminatory purpose”). For example, if a claim of partisan gerrymandering is brought against a court- or commission-drawn district plan with a high EG, it will stall when the plaintiffs attempt to make the necessary showing of discriminatory intent. In the same way, a challenge to a map enacted with egregious partisan intent but demonstrating a low EG also will fail because the plaintiffs cannot demonstrate the required discriminatory effect. The present case, of course, does not present either of these situations. Here, the plaintiffs have put forward sufficient evidence showing both that Act 43 was enacted with impermissible intent and that it demonstrates a large and durable EG value.
Lastly, the defendants argue that the EG measure is overly sensitive to small changes in voter preferences. At trial, Mr. Trende testified that the EG will vary depending on whether there is a national wave in the electorate favoring one party or the other. He described a hypothetical scenario in which a national pro-Republican wave resulted in an increase in Republican vote share in every district of two points above the otherwise expected Republican vote share. This slight change, Mr. Trende explained, could alter the outcomes in particularly close races and thus produce a significantly different EG value than if the national wave had not occurred. Professor Goedert raised a related point. He suggested that assessing a given plan based on the results of the first observed election under the plan is arbitrary and may yield problematic results if that first election happens to be a national wave election.
304 Tr. Ex. 34, at 55.

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We acknowledge these as legitimate criticisms of the EG measure generally; however, they are less compelling in the context of this case. Both concerns are rooted in an EG being drawn from only a single election, which, for any number of reasons, may represent an electoral aberration.305 Here we have the results of two elections under Act 43, one in which the Republicans failed to garner a majority of the statewide vote (2012), and one in which they exceeded it by two percentage points. Under both electoral scenarios, there was a sizeable pro-Republican efficiency gap: 13% in 2012 and 10% in 2014.306
Even in the absence of these results, however, there is evidence in the record that establishes the durability of Act 43’s pro-Republican efficiency gap. Professor Jackman conducted an historical analysis of redistricting plans which compared the trends in efficiency gaps across a wide variety of states over the last forty years (totaling 786 state legislative elections).307 Based on this analysis, Professor Jackman estimated that Wisconsin’s plan, with an initial pro-Republican efficiency gap of 13.3%, would have a plan average pro-Republican efficiency gap of 9.5%.308 In other words, the Republicans’ ability to translate their votes into seats will continue at a significantly advantageous rate through the decennial period.309
Moreover, Mr. Trende himself attested to the durability of Act 43’s EG in the face of a wave election. In his expert report, Mr. Trende observed that if the Democrats engaged in a “modestly better effort” to get out the vote, and secured just 600 more votes in Districts 1 and 94, the “EG falls by more than two points off these modest shifts, to 9.466.”310 Nevertheless, Mr. Trende conceded that, although such a shift might affect the EG’s applications in other contexts, it “would not make a difference in terms of whether the Wisconsin map invited Court scrutiny” because the EG still was above the plaintiffs’ proposed threshold of 7%.311
305 For instance, the Dissent explicitly makes the point that 2012 was an electoral anomaly. See Dissent at 153–55. 306 By way of comparison, the average pro-Republican efficiency gap over the prior decade was 7.6%, R.125 (J. Final Pretrial Report containing J. Statement of Stipulated Facts) at 42, ¶ 194; in the two elections immediately prior to adoption of Act 43, however, the efficiency gaps were 5% (2008), and 4% (2010), id. at 51, ¶¶ 255–56. 307 R.149 at 229–33. 308 Tr. Ex. 83, at 16; R.149 at 232. 309 R.149 at 233 (opining that he was “[v]irtually certain” of this outcome, “[v]irtually 100 percent”). 310 Tr. Ex. 547, at ¶ 147. 311 Id., ¶ 148; see supra note 84 and at 26. The Dissent takes issue with the plaintiffs’ proposed 7% threshold

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The defendants also raise policy-based objections to the EG as a measure of discriminatory effect. First, they claim that the creation of many competitive districts, which may be a desirable and non-partisan policy choice, will result in a highly sensitive map in which the EG could swing rather wildly with even mild electoral shifts. We do not doubt this is the case.312 However, as with some of the criticisms that we already have discussed, this concern is ameliorated by other aspects of the equal protection analysis. It would be difficult to establish that drafters who designed a map with many competitive districts had the requisite partisan intent to show a constitutional violation.
The defendants similarly claim that identifying an EG of zero as the baseline or ideal would discourage states from enacting systems of proportional representation. See Gaffney, 412 U.S. at 752 (upholding plan that sought to “achieve a rough approximation of the statewide political strengths of the Democratic and Republican parties”). Professor Goedert in particular noted that if a state successfully achieved proportional representation, the plan might fail an EG analysis because it fails to give a hyperproportional share to the party winning the majority of the statewide vote. Again, however, drafters who had the intent to create a proportional system hardly could be accused of harboring a discriminatory intent. Moreover, the defendants have offered no evidence that Act 43’s drafters had any interest in hewing closely to proportional representation; indeed, the evidence is directly to the contrary. For these reasons, we are not persuaded that the policy objections to the EG bear any relationship to this case.313 We further emphasize, in any event, that we have not determined that a particular measure of EG establishes presumptive unconstitutionality, which itself diminishes all of the defendants’ policy-based arguments. Instead, we acknowledge that the expert opinions in this case have persuaded us that, on the facts before us, the EG is corroborative evidence of an aggressive partisan gerrymander that was both intended and likely to persist for the life of the plan.314
for liability as being too easy to meet. See Dissent at 157–59. Here, the efficiency gap for Act 43 in 2012 exceeds this baseline by 6%. Therefore, we need not reach the propriety of the 7% number.
312 The Dissent makes a related point that, the more close races the Republicans win, the more Democratic votes are wasted, resulting in a large efficiency gap. See Dissent at 149.
313 The Dissent also notes limitations in the EG’s usefulness in evaluating a gerrymander where there is a 75–25 vote split between the candidates, see Dissent at 151; this also is not the case before us.
314 The Dissent also takes issue with the EG measure because it will not be known until after the first election, and, therefore, it is impossible for mapmakers to know in advance whether their plan will pass muster. See Dissent at 133–34. This is somewhat of a red herring. The level of the EG only will become an issue if the drafters have evinced an intent to entrench their party in power. Moreover, the drafters can assess the durability of their partisan maps, even absent an actual electoral outcome, by employing a

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In sum, we conclude that the plaintiffs have established, by a preponderance of the evidence, that Act 43 burdens the representational rights of Democratic voters in Wisconsin by impeding their ability to translate their votes into legislative seats, not simply for one election but throughout the life of Act 43. We therefore turn our attention to whether the burden is justified by some legitimate state interest.
V JUSTIFICATION
In the initial stages of this litigation, the plaintiffs took the view that, should they successfully establish the intent and effects elements of their constitutional claim, the burden should then shift to the defendants to show that Act 43’s unlawful effects were “‘unavoidable’ in light of the state’s political geography and legitimate districting objectives.”315 In our summary judgment order, we noted that “some type of burdenshifting is appropriate,” adding that “to the extent that plaintiffs have an initial burden to show that [Act 43] cannot be justified using neutral criteria,” it was met at the summary judgment stage by their presentation of the Demonstration Plan.316 We left open the question of which party ultimately should bear the burden of proving Act 43’s legitimacy. However, we rejected definitively the plaintiffs’ “unavoidable” standard as an “overstate[ment]” of the degree of the burden.317
In response, the plaintiffs reformulated the third step of their test to allow the defendants to avoid liability if they can justify Act 43’s effects on the basis of legitimate districting goals or Wisconsin’s natural political geography. They maintain, however, that it is the State’s burden ultimately to prove that Act 43’s effect is justified and not their burden to prove that it is not.
The defendants maintain that even this lesser showing is too demanding. They argue that because Act 43 complies with traditional districting objectives, its partisan effect is necessarily excusable as a matter of law and need not be explained by neutral considerations. We already have considered this argument in detail in our evaluation of the intent element of the plaintiffs’ claim, and so we do not repeat that discussion here.318
swing analysis. See supra note 255. 315 R.94 at 30. 316 Id. at 35. 317 Id. at 32, 35. 318 See supra at 61–62.

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In the absence of explicit guidance from the Supreme Court, we think that the most appropriate course in this context is to evaluate whether a plan’s partisan effect is justifiable, i.e., whether it can be explained by the legitimate state prerogatives and neutral factors that are implicated in the districting process. This approach allows us to hew as closely as possible to the Supreme Court’s approach in analogous areas. As we observed in our summary judgment order, members of the Court have applied this formulation at several points throughout its political gerrymandering case law. See Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that [political] classifications … were applied in … a way unrelated to any legitimate legislative objective.”); id. at 351 (Souter, J., concurring in part and dissenting in part) (stating that, after the plaintiff has made a prima facie case, “I would then shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage”); Bandemer, 478 U.S. at 141 (plurality opinion) (“The equal protection argument would proceed along the following lines: If there were a discriminatory effect and a discriminatory intent, then the legislation would be examined for valid underpinnings.”). It is also consistent with the Court’s approach in the state legislative malapportionment context. See Voinovich v. Quilter, 507 U.S. 146, 161 (1993) (“[A]ppellees established a prima facie case of discrimination, and appellants were required to justify the deviation.”); Brown v. Thomsen, 462 U.S. 835, 842–43 (1983) (explaining that a plan with “large[] disparities in population … creates a prima facie case of discrimination and therefore must be justified by the State”).
The record before us does not require us to anticipate how the Supreme Court will resolve the allocations of proof on this issue. It is clear that the parties, recognizing the present ambiguity on this point, placed before us all the evidence they could in support of their respective positions. Assuming the plaintiffs have the ultimate burden of proof on the issue, they have carried that burden.
The evidence further makes clear that, although Wisconsin’s natural political geography plays some role in the apportionment process, it simply does not explain adequately the sizeable disparate effect seen in 2012 and 2014 under Act 43. Indeed, as we already noted and will discuss again, the defendants’ own witnesses produced the most crucial evidence against justifying the plan on the basis of political geography. Their testimony credibly established that Act 43’s drafters produced multiple alternative plans that would have achieved the legislature’s valid districting goals while generating a substantially smaller partisan advantage. We therefore must conclude that, regardless where the burden lies, Act 43’s partisan effect cannot be justified by the legitimate state concerns and neutral factors that traditionally bear on the reapportionment process.

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A.
The defendants’ primary argument is that Wisconsin’s political geography naturally favors Republicans because Democratic voters reside in more geographically concentrated areas, particularly in urban centers like Milwaukee and Madison. For this reason, they submit, any districting plan in Wisconsin necessarily will result in an advantageous distribution of Republican voters statewide just as Act 43 does.
The plaintiffs have stressed, as a general matter throughout this litigation, that even if there were some inherent pro-Republican bias in Wisconsin, there is no evidence that such a bias could explain Act 43’s large EG measures. They maintain that without such evidence, political geography cannot justify the burden that Act 43 places on Democratic voters in Wisconsin.
The bulk of evidentiary support for the defendants’ political geography argument was presented through the testimony of Mr. Trende. 319 His overarching
319 Prior to trial, the plaintiffs moved in limine to exclude Mr. Trende’s report and testimony pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See R.71. The defendants filed a response, see R.78, and we heard argument on the motion at the summary judgment hearing, see R.89 at 35–42, 60–61. We reserved our ruling and permitted Mr. Trende to testify at trial. After carefully reviewing Mr. Trende’s qualifications and submissions, and with the benefit of his trial testimony, we deny the plaintiffs’ request to exclude Mr. Trende as an expert.
To begin, Mr. Trende is qualified to give expert testimony in this case. The plaintiffs maintain that Mr. Trende is not an expert because “he is neither a Ph.D. nor a political scientist, has no particular training in the kinds of issues involved in this case, and has never written a peer-reviewed article in political science or any other field ….” R.71 at 9–10. The plaintiffs further attack Mr. Trende’s experience, skills, and knowledge. They emphasize his unfamiliarity with “the relevant literature regarding partisan gerrymandering and geographic clustering,” as well as his lack of Wisconsin-specific experience. Id. at 11–12. We have explained, however, that neither Daubert nor Rule 702 “require[] particular credentials” or “require that expert witnesses be academics or PhDs.” Tuf Racing Prods., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). Indeed, “[a]nyone with relevant expertise enabling him to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness.” Id. Although not a social scientist, Mr. Trende has studied, written on, and analyzed voting trends and political geography throughout the United States. He has developed an expertise in this area, and his opinions are informative to the issues before us and are helpful in conducting our analysis.
We further conclude that the principles and methodologies employed by Mr. Trende are sufficiently reliable. See Fuesting v. Zimmer, Inc., 421 F.3d 528, 535–36 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir. 2006). In their motion in limine, the plaintiffs identified several purported flaws in the methodologies that Mr. Trende used to form his opinions, particularly those pertaining to his “partisan index” (“PI”) and “nearest neighbor” analyses. R.71 at 13–27. As is evident throughout our discussion of Mr. Trende’s testimony, see infra at 93–96, we believe that these criticisms, although valid, go to the weight of his opinions rather than to their admissibility. Moreover, having allowed Mr. Trende to testify at trial, we are able to consider his opinions with the benefits of “[v]igorous cross-examination” and the “presentation of contrary evidence,” both of which “are … traditional and appropriate means of

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theory is that the Democratic coalition nationwide has become more liberal over the last several decades; as a result, it has contracted geographically and is now concentrated heavily in urban areas.320 This concentration, in turn, has hurt the Democratic Party in congressional elections, which tend to favor parties with wider geographic reach.321 Mr. Trende first demonstrated this theory using color-coded maps illustrating the 1996, 2004, and 2008 presidential vote results by county in Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Tennessee, Kentucky, and Virginia.322 Over the three election cycles, the number of counties shaded blue (indicating that a majority of the county’s votes in the presidential election were cast for the Democratic candidate) decreased, and the number of red counties (indicating that a majority of the county’s votes in the presidential election were cast for the Republican candidate) increased. Mr. Trende testified that these maps supported his hypothesis that the Democratic coalition has shrunk over time.323
We are skeptical that presidential voting trends at the county level in states other than Wisconsin bear directly on the determination that we must make about Wisconsin’s political geography. Moreover, the color-coding of Mr. Trende’s maps, although a useful demonstrative, purported to serve as a substitute for quantitative data on the margin of victory in each county. Without this information, we cannot know whether, for example, a county won by a Republican presidential candidate was deeply or narrowly Republican. Nor can we tell how the partisan breakdown of that county may have changed over time; as long as the county retained the same partisan majority, it remained the same color.324 In our view, this evidence is worthy of little, if any, weight.
The remainder of Mr. Trende’s testimony concerned the political geography of Wisconsin itself, which he analyzed using a measure called the “partisan index” (“PI”). The PI, he explained, is the difference between a party’s vote share at one electoral level and its vote share at a larger electoral level. For example, the Republican PI for the State
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. Thus, we deny the plaintiffs’ motion in limine to exclude Mr. Trende’s testimony. 320 R.150 at 12. 321 Id. 322 Id. at 45–47. 323 Id. at 46. 324 On cross-examination, Mr. Trende admitted that he did not know if any peer-reviewed study had ever attempted to analyze geographic clustering by studying trends in the counties won by presidential candidates.

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of Wisconsin is “computed by subtracting the share of the state that voted for the Republican presidential candidate from the share of the nation that voted for the Republican presidential candidate.”325 The purpose of the PI is “to determine the partisan lean of political units”326 in order to “compare results across elections.”327
Mr. Trende explained that Wisconsin’s statewide PI, as compared to the national electorate, has remained stable since the 1980s; however, the county and ward PI values have shifted. He presented color-coded maps illustrating Wisconsin’s presidential vote results by county in 1996, 2004, and 2012. Each county was colored a shade of blue or red depending on its degree of partisanship, e.g., counties with large Democratic or Republican PI values were shaded dark blue or dark red, respectively. Although the maps did not contain the actual county PI values, Mr. Trende testified that the pro-Democratic PI values of Dane and Milwaukee Counties increased significantly between 1996 and 2012.328 He also testified that the combined PI values of three of Wisconsin’s reliably Democratic counties—Dane, Milwaukee, and Rock—nearly doubled between 1996 and 2012, despite the statewide Democratic vote share actually decreasing over that time.329 On cross-examination, Mr. Trende conceded that the heavily Republican Ozaukee, Washington, and Waukesha Counties had Republican PI values as large as the Democratic PI values in Dane and Milwaukee Counties. However, the trial evidence also showed that the total number of votes cast for major-party candidates in the Republican counties were significantly smaller than their Democratic counterparts.
Mr. Trende then applied the PI to Wisconsin’s wards in what he referred to as a “nearest neighbor” analysis.330 First, he calculated ward-level PI values in order to determine the average partisan lean of Wisconsin’s wards from 2002 to 2014. Mr. Trende testified that, based on his analysis, “over time, the average Democratic ward had become about two-and-a-half percent more Democratic than it was in 2002”;331 he did not, however, observe the same trend in Republican wards. Mr. Trende then grouped the wards into quantiles based on their degree of partisanship—the more heavily Democratic wards together with similarly Democratic wards and the same for
325 Tr. Ex. 547, at 19. 326 R.150 at 19. 327 Tr. Ex. 547, at 20.
328 R.150 at 27–38. 329 Id. at 40.
330 Tr. Ex. 547, at 30. 331 R.150 at 51.

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Republican wards—and used a computer program to determine, for each ward in each grouping, the median distance between that ward and a ward of similar partisanship. Mr. Trende concluded that, over time, Democratic-leaning wards in each quantile had grown closer together but Republican-leaning wards actually had grown farther apart. In his view, this made it more difficult to draw a neutral districting plan that did not favor Republicans.332
Although Mr. Trende’s report and testimony provides some helpful background information on political trends and political geography generally, they do not provide the level of analytical detail necessary to conclude that political geography explains Act 43’s disparate partisan effects.333 Mr. Trende’s conclusions regarding the PI values of Wisconsin’s counties were based largely on the shaded maps rather than quantitative data analysis. And although Mr. Trende did provide PI values for particular pro-Democratic counties, he conceded on cross-examination that several counties had pro-Republican PI values as large as the pro-Democratic numbers observed in Dane and Milwaukee counties.
Additionally, we question how useful Mr. Trende’s nearest neighbor analysis is in the context of this case. The significance of the distance between wards of similar partisanship is not clear given the restraints placed on the districting process in Wisconsin. Under the Wisconsin Constitution, Assembly districts must “be bounded by
332 At trial, the defendants proffered several exhibits, Tr. Exs. 576–579, that contained revisions to Mr. Trende’s ward-level analysis. The plaintiffs objected to these exhibits as untimely amendments to Mr. Trende’s expert report. R.150 at 53–54, 72.
The revisions were prompted by criticisms levied by Professor Mayer in his own report, specifically that Mr. Trende should have used the governor’s race, as opposed to the senator’s race, in calculating the PI for 2006, and that, in his nearest neighbor analysis, Mr. Trende should have taken into account the fact that wards vary in size across the State of Wisconsin. See id. at 52–53, 63. The revisions also corrected an error that Mr. Trende had made in writing the computer program that yielded his PI values. Id. at 56. At no time prior to trial did the defendants file (with or without leave of court) a revised expert report for Mr. Trende containing these revisions. Nor did the plaintiffs have notice of Mr. Trende’s revisions prior to trial. Moreover, the criticism and the error that prompted Mr. Trende’s revisions did not come to light for the first time at trial, which may have justified their admission despite their lack of timeliness. We therefore sustain the plaintiffs’ objections to these documents and we have not considered them in our analysis. Even if we had, they would not have affected our decision on liability.
333 The Dissent concedes this point, but observes that, even if political geography plays “a ‘modest’ role— for example three to six percent—it would seriously undermine the notion that the Republicans in this case engaged in a partisan gerrymander of historical proportions.” Dissent at 157. However, on cross-examination, Mr. Trende could not give a precise estimate of the effect of Wisconsin’s natural political geography on the efficiency gap; he thought it was “more than 0, but as far as … putting it on the 1-to-100 percent spectrum, I haven’t done that.” R.150 at 98.

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county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.” Wis. Const. art. IV, § 4. Accordingly, the distance between wards of similar partisanship is relevant to reapportionment only to the extent that it is feasible that those wards be grouped together in one contiguous district. The nearest neighbor analysis, however, does not differentiate between those wards that realistically could be aggregated to form a lawful assembly district—wards that are physically adjacent (or at least near one another) and not separated by legally significant boundaries—and those that are not.
This problem is further compounded by Mr. Trende’s use of the median distance between wards rather than the mean distance. Although the average Republican ward is twice the size of the average Democratic ward, the undisputed trial evidence was that the median Republican ward is six times the size of the median Democratic ward. When the mean is used, however, Professor Mayer demonstrates that the distance between Democratic and Republican wards of similar partisanship “are exactly parallel,” and the disparity between Republican- and Democratic-leaning wards and their closest neighboring ward of similar partisanship substantially decreases.334
Like Mr. Trende, Professor Goedert testified that Wisconsin’s political geography inherently favors Republicans. Using Wisconsin’s 2012 Presidential election results, Professor Goedert employed a uniform swing to adjust the vote share in each ward and anticipate the results in an election where each party garnered 50% of the total statewide vote. He then assembled the wards into ten different groups based on this adjusted percentage of the Democratic vote share.335 Professor Goedert’s analysis showed that between seven and eight percent of Wisconsin’s wards had a very high concentration of Democrats (more than eighty percent), while fewer than one percent of wards demonstrated a similar strength in Republican vote.336 He testified that because significantly more wards in Wisconsin are narrowly Republican than are narrowly Democratic, it is “fairly easy” “to try to pack Democrats into a small number of districts,” because “there are so many wards that are already so heavily packed.”337 For the same reasons, he explained, it is “easy” to “disperse” Republican voters.338
334 R.148 at 294–95; see Tr. Ex. 106. 335 See Tr. Ex. 546, at 21–22.
336 R.150 at 184–85. 337 Id. at 185. 338 Id. at 185–86. At trial, the Court inquired whether data, specifically the Democratic vote share by ward, was “part of the record here.” Id. at 253. Professor Goedert responded that “[t]hey should be publicly available.” Id. The court then inquired whether counsel had “any objection to our taking notice of them if

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The persuasiveness of Professor Goedert’s ward-level analysis was called into question at trial. To begin, the evidence showed that in the 2010 redistricting cycle Wisconsin’s wards were, for the first time in the state’s modern history, drawn after the Assembly district lines were created under Act 43. Professor Goedert admitted that he was unaware of this chronology when he conducted his analysis. The partisan imbalance in Act 43’s district configuration therefore may have affected Professor Goedert’s ward-level analysis. Furthermore, Professor Mayer testified that, in this context, the relevant geographic unit is not the ward but rather the district because, to create a district plan, wards ultimately must be aggregated into districts, at which point their biases may disappear. He also presented his own analysis illustrating that Wisconsin’s ward distribution, although “not perfectly symmetrical,” resembles a normal distribution (i.e., a bell curve).339 He testified that such a distribution is closer to what would be expected given a neutral political geography. When Professor Mayer aggregated the wards into Act 43’s districts, however, the resulting distribution was skewed due to “an unusually large number of districts where the Democrats will receive between 40 and 50 percent” of the district vote.340 In Professor Mayer’s opinion, this incongruity between the distributions of Wisconsin’s wards and its districts demonstrates that Act 43’s partisan imbalance is caused by its district configuration; indeed, he characterized this distribution of districts as “the fingerprint of a gerrymander … the absolute DNA of cracking.”341
Professor Mayer also presented his own analysis of Wisconsin’s political geography.342 Specifically, he testified at length about measures known as the “Isolation
they’re publicly available” because, as the court had “these graphic descriptions of actual votes,” “[i]t might be helpful for us to see what the wards actually look like.” Id. at 253–54. The plaintiffs then filed an unopposed stipulation regarding the 2008 and 2012 presidential vote totals by ward. See R.152. By submitting this data, the plaintiffs fulfilled the Court’s request.
The plaintiffs subsequently sought leave for Professor Mayer to file a second declaration which, analytically and graphically, “compare[d] the vote distribution in 2000s wards to vote distributions in the post-Act 43 wards.” R.154 at 4–5. The plaintiffs’ submission is beyond the scope of the court’s inquiries and is tantamount to additional testimony that has not been subject to the rigors of cross-examination. We therefore deny the plaintiffs’ motion.
339 R.148 at 242. 340 Id. at 244; see Tr. Ex. 107 (figure demonstrating distribution of wards compared to districts, arranged by Democratic vote share); see also supra note 247 and accompanying text (discussing Tr. Ex. 15, a histogram demonstrating distribution of Act 43 districts, arranged by Republican vote share).
341 R.148 at 243.
342 At trial, plaintiffs sought to introduce highlighted sections of twenty-three articles, ranging in length from two to fifty pages, as “Learned Treatises” under Federal Rule of Evidence 803(18). See R.148 at 142;

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R.149 at 175. Counsel established that the Professors Mayer and Jackman considered these materials reliable and also had relied upon them, specifically the highlighted portions, for their expert opinions. See R.148 at 141; R.149 at 175. The highlighted portions of the articles were not read into evidence, and, in many cases, plaintiffs’ counsel did not elicit further explanation of these articles during direct examination. Defense counsel objected to the admission of the highlighted sections of the articles on the ground that, under Rule 803(18), “documents don’t actually come into the evidence. The witness has to testify to the statement.” R.149 at 175. We agree.
Federal Rule of Evidence 803 provides in relevant part:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
… (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
Fed. R. Evid. 803. The rule is straightforward. In order for this exception to apply, counsel first must either call the statement to the attention of the expert witness on cross or establish that the expert has relied upon the statement in his or her direct. Second, counsel must establish that the publication from which the statement came is reliable. When these requirements are met, the statement may be read into evidence; however, it may not be received as an exhibit. Every authority that we have located has confirmed this reading of the rule: when the prerequisites are met, the document containing the statement may not be admitted into evidence; only the statement, on which the expert is relying, may be read into evidence. See Finchum v. Ford Motor Co., 57 F.3d 526, 532 (7th Cir. 1995) (“Under Rule 803(18), statements contained in a published periodical which are relied upon by an expert witness may be admitted, but they must be read into evidence rather than received as exhibits.” (emphasis added)); Graham ex rel. Graham v. Wyeth Labs., 906 F.2d 1399, 1414 (10th Cir. 1990) (quoting J. Weinstein & M. Berger, 4 Weinstein’s Evidence ¶803(18)[2] for the proposition that “the last paragraph of Rule 803(18) bars the admission of treatises as exhibits”); Fisher v. United States, 78 Fed. Cl. 710, 714 (2007) (sustaining objections to plaintiffs’ proposed use of books and articles as exhibits and stating that, “[i]f plaintiff wishes to introduce at trial relevant statements from those learned treatises, plaintiff may do so, provided and to the extent they have been relied on by an expert witness in the formulation of his or her direct testimony, by instructing her witnesses to read the statements into the record” and further noting that “the treatises themselves may not be admitted into evidence as exhibits”); see also Jack B. Weinstein and Margaret Berger, 5 Weinstein’s Federal Evidence §803.20[1] (2d ed. 2016) (“Moreover, information that qualifies for this exception ‘may be read into evidence but not received as an exhibit.’ This limitation ensures that the jurors will not be unduly impressed by the treatise, and that they will not use the text as a starting point for conclusions untested by expert testimony.” (footnote omitted)); Michael H. Graham, Handbook of Federal Evidence §803(18) at 472 (7th ed. 2012) (“A safeguard against jury misuse of the published

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Index” and “Global Moran’s I,” which he said are far more common in this area of academic study than the methods employed by the defendants’ experts.343 According to Professor Mayer, he used the Isolation Index to measure the extent to which the average Republican or Democratic voter lives in a ward that leans more heavily Republican or Democratic than the state as a whole.344 Global Moran’s I, he explained, was used to measure the likelihood that a Republican- or Democratic-leaning ward is adjacent to a similarly Republican- or Democratic-leaning ward.345 Professor Mayer testified that both of these measures show that Wisconsin’s political geography is neutral and does not inherently favor one party or the other.346
We do not find these methods reliable as they have been applied in this context. Professor Mayer acknowledged on cross-examination that he had not heard of the
authority is found in the final sentence of Rule 803(18) which provides that statements may be read into evidence, but not received as an exhibit and thus cannot [be] taken to the jury room.”).
The plaintiffs maintain that the defendants’ “interpretation and proposed application … of Rule 803(18),” which matches our own, “is directly contradicted by the text of the Rule itself, defies common sense, and would displace the Court’s discretion over the admission of evidence and how best to achieve the ‘just, speedy, and inexpensive determination’ of this action.” R.161 at 2. They submit that that the defendants are attempting “to graft an additional requirement for the admissibility of statements in learned treatises that Rule 803(18) does not contain.” Id. at 5. In plaintiffs’ view, once the prerequisites set forth in subsections (A) and (B) are met, the statement is admitted for all purposes; the last statement simply indicates the proffering party’s “option of reading it into the record.” Id. (emphasis in original).
We do not believe that the plaintiffs’ approach can be squared with the blanket prohibition, set forth explicitly in Rule 803(18), that the statements in learned treatises may “not [be] received as an exhibit.” Moreover, as we already have explained, their interpretation is at odds with the case law and commentary. Their position does not even find support in the one case that they cited in their submission, DaGraca v. Laing, 672 A.2d 247 (N.J. Super. Ct. App. Div. 1996). DaGraca stands for the unexceptional proposition that learned-treatise statements may be introduced on cross-examination as long as they are established as reliable through some accepted means. Id. at 299–300. It does not speak to, and therefore does not support, the plaintiffs’ contention that learned-treatise statements may be offered through documentary evidence.
For these reasons, we sustain the defendants’ objections to the admission of the highlighted portions of exhibits 98–100, 102, 118–119, 131, 141, 148, 150–152, 333, 391, 394, 405–406, 408, 414–415, 417, and 498. We have considered, however, all statements from these authorities included within the testimony of Professors Mayer and Jackman.
343 R.149 at 5–23. 344 Id. at 15, 17–18. 345 Id. at 6, 11–13. 346 Id. at 13–14, 21–22.

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Isolation Index before he was retained as an expert in this case.347 Similarly, Professor Mayer testified that he had never calculated the Global Moran’s I measure before he was retained for this litigation.348 Moreover, the defendants emphasized during trial that Professor Mayer relied on scholarly articles that either used a related measure known as Local Moran’s I, or used Global Moran’s I to study demographic groups.349 He could not point to any peer-reviewed, scholarly article that had used either measure specifically on partisanship.350
347 Id. at 28. 348 Id. at 40. During his testimony, Professor Goedert also critiqued Professor Mayer’s use of these measures. The plaintiffs objected to much of this testimony as outside the scope of Professor Goedert’s expert report. R.150 at 191–92. We agree, sustain the objection, and therefore do not rely on Professor Goedert’s testimony in reaching our conclusions about the infirmity of Professor Mayer’s conclusions. 349 See R.149 at 41 (acknowledging that Chen and Rodden use “the Local Moran’s I”). 350 Id. at 39. (“Q. Okay. You say that the Glaeser article, that’s the one example that we saw of this being used to determine the distribution of partisans? A. That’s the example that I cited. … Q. I believe you said this wasn’t peer reviewed, was it? A. Not as far as I know.”).
In addition to the testimony of their experts, the plaintiffs also ask us to consider a forthcoming article by Professor Jowei Chen analyzing Wisconsin’s political geography. We decline to do so.
The defendants and their experts relied on previously published articles by Professor Chen, which included randomly simulated district maps for multiple states other than Wisconsin, to argue that Wisconsin’s natural political geography favors Republican voters. See R.46 at 27; Tr. Ex. 547, at ¶¶ 89–90, 126; Tr. Ex. 136, at 18, 21; R.150 at 111–12, 243–44. On March 17, 2016, one week before the summary judgment hearing in this case, Professor Chen filed a motion for leave to participate as an amicus curiae, contending that the defendants and their experts had “misinterpreted and misapplied” his work to the facts of the present case. R.82-1 at 3. Attached to his motion, Professor Chen included an analysis applying the simulation methodology that he used in his published work to Wisconsin. R.82-2. We denied Professor Chen’s request to participate because the timing left “the parties insufficient time to respond.” R.85.
Professor Chen subsequently submitted his analysis of Wisconsin’s political geography as an article for publication to the Election Law Journal, where it was accepted and is forthcoming in 2017. The plaintiffs requested that the article be admitted into evidence. At the conclusion of trial, we requested that the parties address the admissibility of Professor Chen’s article in their post-trial briefs. In their post-trial brief, the plaintiffs maintain that we should admit Professor Chen’s article to “correct[] defendants’ misrepresentations of Professor Chen’s work.” R.155 at 26. As we have not relied on any of these “misrepresentations” in our analysis of the issues before us, we find it unnecessary to consider how Professor Chen’s later scholarship might alter our views of either his original work or the defendants’ interpretation of his work.
The plaintiffs also argue that the article should be admitted because “Professor Mayer relied on Professor Chen’s article in formulating his own expert opinions.” Id. at 33–34. There is no support for this

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Having carefully examined the evidence bearing on this issue, we find that substantial portions of the record indicate, at least circumstantially, that Wisconsin’s political geography affords Republicans a modest natural advantage in districting. Indeed, the plaintiffs conceded as much in their closing argument when counsel stated that “there likely is some natural packing” of Democratic voters, “especially of minority
assertion in the record. During his deposition, Professor Mayer responded “I did,” to the following question: “Dr. Mayer, subsequent to you preparing your rebuttal report, did you receive and did you review a document entitled Dr. Joey Chen’s Analysis of Wisconsin’s Act 43?” R.99 at 36 (Mayer Dep. at 138) (emphasis added). Professor Mayer then stated that the article was “additional confirmation of my own analysis that indicated that there was no geographic clustering of … Democrats and Republicans that would produce a natural pro-Republican gerrymander.” Id. In sum, the article played no part in Professor Mayer’s analysis and merely confirmed, after the fact, the analysis that he had conducted.
The timing and nature of Professor Chen’s submission counsel against admitting it into evidence in this case. Professor Chen’s analysis is highly technical in both methodology and substance; it is, in effect, an expert report prepared specifically for this litigation. Under the Federal Rules of Civil Procedure, parties must “disclose to the other parties the identity of any witness it may use at trial to present” expert testimony. Fed. R. Civ. P. 26 (a)(2)(A). Accompanying the disclosure of their identity, Rule 26 further mandates, unless the court orders otherwise, that retained experts prepare and sign a written report stating and supporting their opinions. Fed. R. Civ. P. 26(a)(2)(B). Here, we ordered that the plaintiffs disclose their experts and their reports by October 23, 2015, and the defendants by December 2, 2015. R.33 at 2. We also permitted rebuttal reports to be filed by December 16, 2015. Id. The plaintiffs did not disclose Professor Chen as an expert at either of these times. Indeed, the court was not made aware of Professor Chen’s interest in this case until he filed his amicus brief on March 17, 2016, one week before the summary judgment hearing.
Moreover, because Professor Chen was not identified as an expert, he was not deposed and did not testify at trial. The admissibility of expert testimony in federal court is governed by Federal Rule of Evidence 702 and Daubert, 509 U.S. 579. These authorities set forth guideposts designed to assist district courts, as “the gatekeeper[s] of expert testimony,” in assessing and ensuring the reliability of an expert’s principles and methods. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834–35 (7th Cir. 2015); see also Fed. R. Evid. 702. In addition to our admissibility determination, “the normal adversarial process of ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof,’” Lees v. Carthage Coll., 714 F.3d 516, 526 (7th Cir. 2013) (quoting Daubert, 509 U.S. at 596), is designed to test “[t]he reliability of data and assumptions used in applying [the expert’s] methodology,” Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796, 808 (7th Cir. 2013). Here, we are unable to examine properly the reliability of Professor Chen’s methodologies, and we are without the benefits of adversarial scrutiny. We therefore cannot consider his submissions as part of the record before us. Cf. Kitzmiller v. Dover Area Sch. Dist., No. 04CV2688, 2005 WL 2736500, at *1–2 (M.D. Pa. Oct. 24, 2005) (striking amicus brief because it was a “‘back door’ attempt to insert expert testimony into the record free of the crucible of trial and cross-examination”). We therefore sustain the defendants’ objections to the admission of all exhibits related to Professor Chen’s analysis of Wisconsin districting, Tr. Exs. 154–160. For the same reasons, we also disregard Professor Mayer’s trial testimony regarding Professor Chen’s Wisconsin-specific analysis, R.148 at 256–68; R.149 at 22–23.

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voters in places like Milwaukee.”351 Several pieces of evidence lead us to this conclusion. The first, and most compelling, is Professor Mayer’s analysis comparing the distributions of Wisconsin’s wards and Act 43’s districts by Democratic vote share. As Professor Mayer himself testified, the ward-level distribution is “not perfectly symmetrical.”352 In fact, the mean ward in the distribution—the highest point on the curve—is located left of the fifty percent line, which indicates that the average ward in Wisconsin leans slightly Republican. His analysis also shows that there are a substantial number of wards that are over eighty percent Democratic, but virtually no wards that are similarly Republican. We find these facts to be consistent with the notion that Democratic voters are uniquely packed in urban centers like Milwaukee and Madison.
Moreover, Mr. Trende’s testimony establishes that the counties with the highest Democratic PI values are far larger in population than counties with equivalent Republican PI values. This fact indicates that some of the most heavily Democratic areas in Wisconsin are more densely populated than their equally Republican counterparts. Again, we find this to be consistent with a modest Republican advantage in the State’s political geography.
We also find it significant that Republican-leaning wards in Wisconsin tend to be twice the size of Democratic-leaning wards. Indeed, when Professor Mayer conducted his own nearest neighbor analysis using the mean distances between wards, it became clear that this size differential exists at every level of partisanship.353 We recognize that the impact of this disparity on the districting process arguably is negligible because districts must be approximately equal in population; ward size, therefore, does not directly bear on the creation of districts. Still, the tendency of Republican wards to be much larger than Democratic wards is consistent with the notion that Democratic voters on the whole are more likely than Republican voters to live in geographically concentrated areas. This, in turn, increases the prospect that heavily Democratic wards will exist within the same political boundary such that it is, at least somewhat, more difficult to draw politically competitive districts in that part of the state.
Finally, it is undisputed that Professor Mayer’s Demonstration Plan itself exhibited a slight pro-Republican bias despite his stated objective, reiterated at trial, of drawing an alternative to Act 43 that performed comparably on traditional districting objectives but “had an efficiency gap as low to zero as [he] could get it.”354 Under the
351 R.150 at 267. 352 R.148 at 242; see supra at 97. 353 See Tr. Ex. 106. 354 R.148 at 146. Professor Mayer also testified at trial that he “probably could have” achieved a lower EG

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Demonstration Plan, when the Republicans secure 48% of the statewide vote as they did in 2012, the plan still yields an EG of 2.2% in favor of the Republicans. This certainly is a far smaller advantage than the 11.69% pro-Republican EG generated under Act 43 in 2012, 355 but it nevertheless illustrates that even a neutrally drawn plan, crafted under conditions unimpeded by politics, imposes a slight burden on Democratic voters.
For these reasons, we find that Wisconsin’s political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process.
B.
Because the evidence at trial establishes that Wisconsin has a modestly pro-Republican political geography, we now examine whether this inherent advantage explains Act 43’s partisan effect. We conclude that it does not.
The record reveals that, before the legislature enacted Act 43, its drafters had produced several alternative district plans that performed satisfactorily on traditional districting criteria but secured a materially smaller partisan advantage when compared to the advantage produced by Act 43. Foltz and Ottman testified that, while drafting a particular map, they would remain attentive to various districting criteria—population equality, compactness, contiguity, and municipal and county splits—as well as where incumbents lived and levels of disenfranchisement.356 When the drafters finalized a statewide map, they were able to generate various reports through the autoBound
in creating the Demonstration Plan but “when [he] got to the point where [he] had an efficiency gap of 2.2 and a map that was equivalent to Act 43, [he] stopped.” Id. at 185–86. This statement, of course, contradicts his previous trial testimony that he was pursuing an EG of zero. It also contradicts his expert report, in which he stated that his objective was to design an alternative plan “that has an efficiency gap as close to zero as possible while complying with” traditional districting criteria as well as Act 43. R.54 at 2. In light of these statements, we discount Professor Mayer’s attempt at trial to minimize the significance of the Demonstration Plan’s 2.2% pro-Republican EG. We believe that the Demonstration Plan reflects Professor Mayer’s stated goal of achieving an EG of zero and, therefore, that his failure to achieve that goal is a material fact in our evaluation of Wisconsin’s political geography. 355 The Dissent pegs the EG for the Demonstration Plan, when adjusted for incumbency, as 4%. See Dissent at 136. This figure comes from Professor Mayer’s swing analysis. To conduct that analysis, Professor Mayer accounted for incumbency, and, after that adjustment, the Demonstration Plan’s EG rose to 3.89%. See Tr. Ex. 116. When he applied the same factor to Act 43, the EG for Act 43 rose to 14.15%. See Tr. Ex. 117. 356 See R.147 at 154–60; R.148 at 83–90; see also supra at 10.

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software that evaluated the plan on these different districting criteria.357 In particular, once the drafters had “a statewide plan finalized, all 99 assembly districts,” they would “take th[e] [partisan] composite column from auto[B]ound and then move it over into … Excel spreadsheets.”358 These spreadsheets evaluated a plan’s expected district-by-district partisan performance, and the drafters exported and saved them for numerous statewide draft plans.
Although the autoBound software also enabled the drafters to generate reports on other districting criteria that they were considering, the defendants have not pointed us to any documents in the record that compare the various maps under consideration according to traditional district criteria.359 It therefore is unclear precisely how the drafters’ statewide maps performed on other districting criteria. Nevertheless, Foltz testified that the drafters “would pull regional alternatives from” the statewide maps they had finalized and evaluated.360 These regional maps were then presented to the Republican leadership with the expectation that they ultimately would be a part of a final district plan.361 Neither Foltz nor Ottman testified, and nothing in the record indicates, that any of these statewide plans performed unsatisfactorily on any other districting criteria. Indeed, had these maps demonstrated, for instance, insufficiently compact districts or an unacceptable number of municipal splits, the drafters would not have pulled regional alternatives from them to present to the legislative leadership. We therefore can infer that the finalized statewide plans for which we have partisan performance spreadsheets in the record complied satisfactorily with the other districting criteria that the drafters considered.
The evidence also revealed that as the reapportionment process progressed and the drafters finalized and evaluated these statewide draft plans, the magnitude of the expected partisan advantage increased. In many instances, the names of these plan
357 R.147 at 155–56; R.148 at 84, 102–05. 358 R.147 at 162; see also id. at 51 (Foltz testifying that after a map was completed he “would export or copy and paste … the data out of the auto[B]ound matrix, and then put it into an Excel file that summarized the partisan scores”). 359 Ottman did create some spreadsheets on disenfranchisement. See supra note 195.
360 R.147 at 163. 361 Id. at 163–64; id. at 176 (Foltz testifying that the drafters would “pull[] regional alternatives from within a broader statewide plan and present[] [them] to the leadership”); R.148 at 94–95 (Ottman testifying that “[a]fter [they] had made a number of draft maps and set up meetings for legislative leadership to come over, [the drafters] … discussed how to kind of break up the state[] in regions to discuss with the legislative leadership, and then [they] each kind of printed off maps that [they] had been working on for those different regions”).

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alternatives reflected the degree of partisan advantage that could be anticipated in the map, e.g., “Assertive” or “Aggressive.”362 Each of the drafters’ partisan score spreadsheets included a corresponding table comparing the partisan performance of the draft plan to the Current Map. These performance comparisons were made on the following criteria: “Safe” Republican seats, “Lean” Republican seats, “Swing” seats, “Safe” Democratic seats, and “Lean” Democratic seats.363 Under the Current Map, the drafters anticipated that the Republicans would secure 49 Assembly seats,364 with 40 districts safe or leaning Republican, 40 districts safe or leaning Democratic, and 19 swing districts.365 However, by the time the drafters had solicited the preferences of the Republican legislative leadership and pieced together the Team Map—the closest version in the record to Act 43—the expected Republican seats had ballooned to 59.366 The number of safe or leaning Republican districts had grown from 40 to 52, apparently at the expense of swing districts, which decreased from 19 to 10.367 The number of safe or leaning Democratic districts also were reduced from 40 to 37.368
Careful review of the record convinces us that benign factors cannot explain this substantial increase in Republican advantage between the Current Map and the plan that would become Act 43. Rather, it is evident that the drafters achieved this end by making incremental “improvements” to their plan alternatives throughout the drafting process. For example, the Republican advantages expected in the drafters’ initial two draft plans, produced in early April 2011, were significantly smaller than the advantage anticipated in the Team Map. Under these draft plans—Joe’s Basemap Basic and Joe’s Basemap Assertive—the drafters expected Republican candidates to win 52 and 56 seats, respectively, compared to the 49 expected under the Current Map.369 The Current Plan’s 40 safe and leaning Republican districts improved to 45 and then to 49, while the
362 See R.148 at 19–21. 363 See, e.g., Tr. Ex. 364; see also R.148 at 15 (Ottman testifying about these criteria). 364 See Tr. Ex. 283. 365 Tr. Ex. 364. 366 Tr. Ex. 283. 367 Id. 368 Id. 369 Tr. Exs. 465, 476.

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number of swing districts dwindled from 19 to 14 to 12.370 The number of pro-Democratic districts, however, remained relatively constant.371
Apparently not satisfied with the political performance of these early plans, the drafters produced and evaluated at least another six statewide maps prior to their meeting with the Republican leadership in early June 2011.372 Each of these maps improved upon the anticipated pro-Republican advantage generated in the initial two draft plans. The total number of expected Republican seats in these drafts ranged between 57 and 60, and the number of swing seats ranged between 6 and 11.373 The number of Democratic seats again remained about the same under each draft map.374
The Team Map, as an amalgamation of several statewide plan alternatives, reflects the drafters’ iterative efforts throughout the drafting process to achieve a substantial, if not maximal, partisan advantage. That these efforts were highly successful is obvious with the benefit of hindsight. But the drafters themselves took pains to gauge their success at the time, taking stock of the degree to which they had improved upon the Current Map. In their Tale of the Tape, the drafters compared the partisan performance of the Team Map directly to the Current Map.375 They highlighted specifically that under the Current Map, “49 seats are 50% or better,” but under the Team Map, “59 Assembly seats are 50% or better.”376 In a second document, they categorized each of Wisconsin’s Assembly districts according to its partisan “improvement” from the Current Map to the Team Map.377 For example, five districts were “Statistical Pick Up[s],” held by a Democratic incumbent who would now face a “55% or better” Republican vote share.378 Another fourteen districts were “strengthened a lot”: “Currently held GOP seats that start[ed] at 55% or below [and] improve[d] by at
370 Tr. Ex. 465. 371 Id. (showing “strong” and “lean” Democratic seats of 40, 40, and 38.) 372 These were: Milwaukee_Gaddie_4_16_11_V1_B (Tr. Ex. 172, at 1); Statewide2_Milwaukee_Gaddie_ 4_16_V1_B (Tr. Ex. 172, at 2); Tad MayQandD (Tr. Exs. 364, 477); Joe Assertive (Tr. Exs. 366, 478); Tad Aggressive (Tr. Ex. 283); and Adam Aggressive (Tr. Ex. 283). 373 Tr. Exs. 172, 364. 374 Tr. Exs. 172, 364, 366 (showing safe and leaning Democratic seats ranging from 38–40). 375 Tr. Ex. 283. 376 Id. 377 Tr. Ex. 284, at 1. 378 Id.

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least 1%” in Republican vote share.379 The drafters also made particular note of which Republican Assembly members had contributed to the achievement of their partisan goals, the 20 so-called “GOP donors to the team.”380
The substantial record evidence of the multiple statewide plan alternatives produced during the drafting process convinces us that Wisconsin’s modest, pro-Republican political geography cannot explain the burden that Act 43 imposes on Democratic voters in Wisconsin. The drafters themselves disproved any argument to the contrary each time they produced a statewide draft plan that performed satisfactorily on legitimate districting criteria without attaining an expected partisan advantage as drastic as that demonstrated in the Team Map and, ultimately, in Act 43. In reaching this conclusion, we emphasize that we did not require, as the plaintiffs initially proposed, that the defendants show that Act 43’s partisan effect was necessary or unavoidable. Rather, our task at trial was to determine whether the burden that Act 43 imposes is justifiable in light of legitimate districting considerations and neutral circumstances. The defendants offered Wisconsin’s natural political geography as one such neutral circumstance. Because we find that a Republican advantage in political geography, although it exists, cannot explain the magnitude of Act 43’s partisan effect, and because we find that the plan’s drafters created and passed on several less burdensome plans that would have achieved their lawful objectives in equal measure, we must conclude that the burden imposed by Act 43 is not justifiable.
Professor Mayer’s Demonstration Plan provides additional evidence that the legislative imbalance resulting from Act 43 is not attributable to political geography. Professor Mayer attempted to draw an alternative districting plan to Act 43 “that had an efficiency gap as low to zero as I could get it” while also complying with traditional districting criteria as well as Act 43.381 He first created a regression model that estimated partisanship for each geographic area, so that he could compare his plan to Act 43.382 To ensure the model was accurate, Professor Mayer compared the predictions made by his regression model to the actual results in 2012. He concluded that the results aligned almost perfectly.383
379 Id. 380 Id.
381 R.148 at 146. 382 Id. at 151.
383 To assess “the overall accuracy of the model,” Professor Mayer used what he characterized as “one of the most important diagnostics … called the R squared,” which is “a measure that tells … what percentage of the variation in the dependent variable [a regression] model is picking up.” Id. at 162–63. Professor

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Once he was confident in his model, Professor Mayer “used a GIS redistricting program called Maptitude for redistricting to go ahead and complete the task of actually drawing the Assembly district map.”384 Proceeding along this course, Professor Mayer was able to draw a districting map that would have yielded a pro-Republican EG of only 2.2% for 2012, and “is comparable to Act 43” with respect to “all constitutional requirements.”385 Specifically his plan has a population deviation of .86% whereas Act 43 has a population deviation of .76%.386 He also noted that his plan keeps the same number of majority-minority districts.387 The plan is also slightly more compact, based on the “Reock score,” than Act 43.388 Finally, it had three fewer county splits but two more municipal splits than Act 43.389
The defendants argue that we should discount the evidentiary value of the Demonstration Plan for several reasons. First, they maintain that the Demonstration Plan “achieved its EG through 20/20 hindsight” and that the low EG will “hold only for those specific election conditions” that occurred in 2012.390 Specifically, the defendants contend that if the Republicans had a good electoral outcome like the one they saw in 2014, they would have received 63 seats under the Demonstration Plan and ended up with the same EG as Act 43.391 Consequently, from the standpoint of partisan effects, the Demonstration Plan is just as problematic as Act 43.
Mayer testified that his model and the actual results had an “R squared” of .9903, which he characterized as “ridiculously high. It’s the kind of number you almost never see in social science research.” Id. at 163. Professor Mayer also compared the results of his analysis to Professor Gaddie’s “open-seat baseline partisanship measure.” Tr. Ex. 2, at 29–30. Professor Mayer found that “[t]he r-squared for this regression [comparing the results] is 0.96, indicating that the two measures are almost perfectly related, and are both capturing the same underlying partisanship.” Id. at 30. 384 R.148 at 151. 385 Tr. Ex. 2, at 37. 386 R.148 at 177. 387 Id. The Demonstration Plan retains the same majority Latino district that the federal court drew in Baldus. However, the six majority African-American districts have boundaries that differ from Act 43. See Tr. Ex. 2, at 37–38. 388 R.148 at 178. 389 Id. at 178–79. 390 R.153 at 25. 391 See id.; R.149 at 94–101.

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Although this evidence shows the need to test how the Demonstration Plan fares under likely electoral scenarios,392 it does not render the Demonstration Plan useless for our purposes. Under Professor Mayer’s Demonstration Plan, the EG would be significantly pro-Republican had the Republicans received a high vote share in the first election year of the plan. However, had the opposite happened, and Democrats received a higher vote share in the first election year, the EG would have skewed towards the Democrats. This is because the Demonstration Plan was designed to have competitive districts, and the EG will be reactive to such districts. By contrast, as Professor Gaddie’s and Professor Jackman’s sensitivity analyses show, Act 43 will remain pro-Republican regardless of the electoral outcome. Consequently, the Demonstration Plan and Act 43 do not suffer from the same infirmities.
The defendants also contend that Professor Mayer’s Demonstration Plan fails to account for core retention, i.e., it does not try to keep districts from the previous districting plan in a similar form.393 Although there is testimony by Ottman that the drafters “looked at kind of what the core of the existing district was compared to the new district,”394 we question how much this consideration actually factored into the drafting process. In Baldus, the court noted that “[o]nly 323,026 people needed to be moved from one assembly district to another in order to equalize the populations numerically,” but that “Act 43 moves more than seven times that number – 2,357,592 people”—a number that the court found to be “striking.” 849 F. Supp. 2d at 849 (emphasis added).
On a similar note, the defendants point out that Professor Mayer did not draw Senate districts and therefore did not account for how many voters would be disenfranchised by moving into a Senate district where they would not get a vote for another two years.395 Ottman testified that, because he worked for Senator Fitzgerald and “was familiar with the Senate seats,” he “was able to eyeball [disenfranchisement] a little bit.”396 Foltz testified that “you can notice [disenfranchisement] when you’re drawing individual districts. But I think it’s another one of those metrics where the
392 See supra at 25, 28 (discussing sensitivity testing).
393 R.153 at 24. Professor Mayer admitted during his testimony that he did not take account of core retention. R.149 at 117–19. That being said, we do not know whether Professor Mayer inadvertently retained several of the old districts when drawing the Demonstration Plan, or how it compares to Act 43 on core retention. We simply know that Professor Mayer did not consider core retention.
394 R.148 at 85. 395 See R.153 at 24; R.149 at 117–19. As with core retention, we do not know whether the Demonstration Plan disenfranchised a significant number of voters. We simply know that the issue was not considered.
396 R.148 at 86.

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back-end report is really where you get a sense for where you’re sitting.”397 Although Foltz ran “disenfranchisement reports on [his] plans,” he did not testify as to specific numerical targets he was aiming for, nor did he testify that any of his maps were changed in response to the reports that were generated.398
The defendants also urge that the Demonstration Plan incorporates districts around Fond du Lac that are not compact.399 There may be individual districts in the Demonstration Plan that are not as compact as their equivalent districts in Act 43. Nevertheless, the Demonstration Plan has a better overall “Reock score”—the measure of compactness utilized by the drafters—than Act 43 has.400 We cannot conclude, therefore, that, overall, the Demonstration Plan was less compact than Act 43.
Finally, the defendants argue that the Demonstration Plan fails to protect incumbents to the same degree as Act 43. Professor Mayer testified that he “didn’t pay attention to where incumbents resided.”401 The defendants contend that the number of paired incumbents in the Demonstration Plan was so great that such a plan would not have passed in the legislature.402 According to the defendants, the Demonstration Plan paired 37 incumbents,403 13 more than were paired in Act 43.404
There is no question that, unlike Act 43, the Demonstration Plan does not take into account incumbency concerns. This infirmity does not negate entirely the value of the Demonstration Plan. Notably, the defendants have not argued that the location of incumbents hampered them in their efforts to draw a non-partisan plan or otherwise accounts for the electoral imbalance resulting from Act 43. Nevertheless, Professor
397 R.147 at 157–58. 398 Id. at 158. As noted previously, Ottman created some spreadsheets on disenfranchisement. See supra notes 195, 359. However, Ottman did not provide any explanation of these in his testimony. We therefore do not know how frequently they were generated or whether he made changes to any maps in response to those numbers. 399 R.153 at 24; see also R.149 at 106–08. 400 See R.148 at 178.
401 R.149 at 84. 402 For example, District 53 of the Demonstration Plan paired three Republican incumbents. R.149 at 111. The Demonstration Plan also paired incumbents in the area where Senator Mike Ellis actually had complained about incumbent pairings during the drafting of Act 43. Id. at 112. Third, the plan paired two incumbents in a majority-minority district. Id. at 113.
403 R.156 at 5. 404 See Tr. Ex. 192. Ottman testified that, “[i]f he could recall correctly, … there were 22 legislators paired in the final map. R.148 at 87. Regardless whether the number is 22 or 24, the Demonstration Plan represents a significant increase in incumbent pairings.

111
Mayer’s lack of attentiveness to this concern well might diminish the Demonstration Plan’s worth as a viable, legislative alternative. The Demonstration Plan still shows, however, that it is very possible to draw a map with much less of a partisan bent than Act 43 and, therefore, that Act 43’s large partisan effect is not due to Wisconsin’s natural political geography.
The evidence of multiple statewide plan alternatives produced during the drafting process, coupled with Professor Mayer’s Demonstration Plan, convinces us that Wisconsin’s modest, pro-Republican political geography cannot explain the burden that Act 43 imposes on Democratic voters in Wisconsin. The drafters established this finding themselves; they produced several statewide draft plans that performed satisfactorily on legitimate districting criteria without attaining the drastic partisan advantage demonstrated in the Team Map and, ultimately, in Act 43. Professor Mayer’s Demonstration Plan further dispels the defendants’ claim. As we have noted in our discussion, the evidence in support of a larger effect of political geography simply lacked specificity and careful analysis and, consequently, was less convincing.
VI STANDING Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), makes clear that we must assess the issue of standing at all stages of the proceedings. Therefore, now that we have set forth the factual record and the elements of a political gerrymandering cause of action, we revisit the issue of standing.405 The standing requirement is meant to ensure that the plaintiffs have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). The party invoking federal jurisdiction, here the plaintiffs, bears the burden of establishing Article III standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006).
The constitutional requirements for standing are well-established:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action
405 See supra at 30.

112
of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (alteration in original) (citations omitted) (footnote omitted).
We turn first to the question whether the plaintiffs have established the invasion of a legally protected interest. Although the proposition is not settled in Supreme Court jurisprudence, we hold, for the reasons set forth in this opinion, that state legislatures cannot, consistent with the Equal Protection Clause, adopt a districting plan that is intended to, and does in fact, entrench a political party in power over the decennial period. The plaintiffs have established that, “[a]s a result of the statewide partisan gerrymandering, Democrats do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly. As a result, the electoral influence of plaintiffs and other Democratic voters statewide has been unfairly [and] disproportionately … reduced” for the life of Act 43.406 Professor Whitford testified to the impact of political gerrymandering on individual voters in Wisconsin where it is “extremely difficult” to pass legislation through a bipartisan coalition.407 Wisconsin’s strict caucus system means that all of the important “debate and discussion” of proposed legislation takes place in the party caucus meeting, and the party’s vote, yea or nay, is the one “that matters.”408 Consequently, erecting a barrier that prevents the plaintiffs’ party of choice from commanding a legislative majority diminishes the value of the plaintiffs’ votes in a very significant way.
We believe the situation here is very close to that presented in Baker v. Carr, 369 U.S. 186. In Baker, the plaintiffs’ constitutional claim was that a decades-old districting statute
constitute[d] arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State’s Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of
406 R.1 at 6–7, ¶ 16. 407 R.147 at 33. 408 Id. Professor Whitford’s description is consistent with the testimony given by Foltz and Ottman concerning the drafting and passage of legislation generally, as well as the path of Act 43. We therefore credit Professor Whitford’s description of the legislative process in Wisconsin.

113
constitutionally unjustifiable inequality vis-à-vis voters in irrationally favored counties. Id. at 207–08. The Court explained that, “[i]f such impairment does produce a legally cognizable injury, [the appellants] are among those who have sustained it.” Id. at 208. As noted above, today we recognize a cognizable equal protection right against stateimposed barriers on one’s ability to vote effectively for the party of one’s choice. Moreover, Act 43 did, in fact, prevent Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans. Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights—akin to that suffered by the plaintiffs in Baker—that is both concrete and particularized.
Moreover, there can be no dispute that a causal connection exists between Act 43 and the plaintiffs’ inability to translate their votes into seats as efficiently as Republicans. The evidence has established that one of the purposes behind Act 43 was solidifying Republican control of the legislature for the decennial period. Indeed, the drafters had drawn other statewide maps that, their own analysis showed, would secure fewer Republican seats.409 Finally, adopting a different statewide districting map, perhaps one of those earlier maps or a map as proposed in Professor Mayer’s Demonstration Plan, would redress the constitutional violation by removing the state-imposed impediment on Democratic voters.
Defendants nevertheless contend that the plaintiffs lack standing for several reasons. First, they assert that “[a] majority of Justices in Vieth properly recognized that a statewide challenge to a redistricting plan was not justiciable.”410 This view, however, is not the equivalent of holding that the plaintiffs did not have standing to pursue their cause of action. Standing is just one aspect of justiciability, which also includes ripeness, mootness, and the political question doctrine. See Allen v. Wright, 468 U.S. 737, 750 (1984), abrogated on other grounds by Lexmark Int’l Inc. v. Static Control Components, 134 S. Ct. 1377, 1388 (2014); Charles Alan Wright et al., Federal Practice & Procedure § 3529 (3d ed. 2008). The Vieth plurality held that that the plaintiffs’ claim for political gerrymandering presented a nonjusticiable political question, Vieth, 541 U.S. 277–81; only one Justice opined that the plaintiffs lacked standing to bring a statewide political gerrymandering claim, id. at 328 (Stevens, J., dissenting).411
409 See supra at 104–07.
410 R.39 at 7 (emphasis added). 411 In Vieth, Justice Souter, joined by Justice Ginsburg, affirmed his belief “that political gerrymandering is a justiciable issue,” but explained that he would “otherwise start anew” in fashioning a test. 541 U.S. at 346 (Souter, J., dissenting). He stated that it was his “own judgment … that we would have better luck at

114
The defendants also claim that in recognizing the plaintiffs’ standing to challenge a statewide map, we are at odds with the Court’s holding in United States v. Hays, 515 U.S. 737 (1995). Hays, like its predecessor, Shaw v. Reno, 509 U.S. 630 (1993), involved allegations that a districting map constituted “an effort to segregate voters into separate voting districts because of their race.” Hays, 575 U.S. at 738 (internal quotation marks omitted). This particular cause of action is limited, therefore, to individuals who “reside[] in a racially gerrymandered district” because they are the ones who “ha[ve] been denied equal treatment because of the legislature’s reliance on racial criteria.” Id. at 745.412
The rationale and holding of Hays have no application here. As we already have discussed,413 the harm in such cases is not that the racial group’s voting strength has been diluted, but that race has been used “as a basis for separating voters into districts.” The district lines, therefore, “embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens— according to a criterion barred to the Government by history and the Constitution.” Miller v. Johnson, 515 U.S. 900, 912 (1995) (internal quotation marks omitted) (quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 604 (1990) (O’Connor, J., dissenting)). The concern here is a very different one: it is the effect of a statewide districting map on the ability of Democrats to translate their votes into seats. The harm is the result of the entire map, not simply the configuration of a particular district. It follows, therefore, that an individual Democrat has standing to assert a challenge to the statewide map.
The defendants also argue that the wrong alleged by the plaintiffs is not sufficiently “particularized” to satisfy the standing requirement. According to the defendants, “the plaintiffs are asserting an injury that is not personal to any one of them, but instead is common to anyone who supports the Democratic Party.”414 We cannot take the defendants’ arguments at face value. If, for instance, Congress should pass a law that imposed income taxes only on Democrats, surely an individual Democrat could bring a constitutional challenge to the law even though the harm was
devising a workable prima facie case if we concentrated as much as possible on suspect characteristics of individual districts instead of statewide patterns.” Id. He did not foreclose the concept of a challenge to a statewide map, nor did he discuss specifically whether an individual voter would have standing to challenge a statewide map. 412 The Court in Hays did not foreclose the possibility that a plaintiff living outside a racially gerrymandered district could present evidence that he “ha[d] personally been subjected to a racial classification” in the drawing of district lines. 515 U.S. at 745. Under such circumstances, that individual as well would have standing to pursue a Shaw cause of action. Id. 413 See supra note 171.
414 R.39 at 5.

115
shared by so many. Moreover, an injury is not sufficiently particularized only if it is a wrong shared by the “public at large”:
We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy. Lujan, 504 U.S. at 573–74. The harm that the plaintiffs have experienced is not one shared by the public at large. It is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute. Consequently, the plaintiffs have satisfied the requirement of a particularized injury.
The defendants finally maintain that that “[t]here is no reliable causal connection between re-doing statewide districts and what the Plaintiffs themselves are involved in, namely localized elections.”415 We believe that this claim is belied by the evidence. The plaintiffs have established that, given Wisconsin’s caucus system, the efficacy of their vote in securing a political voice depends on the efficacy of the votes of Democrats statewide. Moreover, the drafters themselves drew maps that would have resulted in significantly greater partisan balance than that obtained by Act 43. In short, there is no question that Act 43 imposed a disability on Democratic voters and that redrawing a district map—indeed, perhaps employing one of the drafters’ earlier efforts—would remove that disability.

A. Remedy

VII ORDER

In their complaint, the plaintiffs request three types of relief: (1) that we declare the Assembly districts established by Act 43 unconstitutional; (2) that, “[i]n the absence of a state law establishing a constitutional district plan for the Assembly districts, adopted by the Legislature and signed by the Governor in a timely fashion, [we] establish a redistricting plan that meets the requirements of the U.S. Constitution and federal statutes …”; and (3) that we enjoin the defendants from “administering, preparing for, and in any way permitting the nomination or election of members of the State Assembly from the unconstitutional districts that now exist.”416

415 R.39 at 3. 416 R.1 at 29, ¶¶ 97–99.

116
We defer, at this time, a ruling on the appropriate remedy. The parties have not had an opportunity to brief fully the timing and propriety of remedial measures. We therefore order briefing on the appropriate remedy according to the following schedule:
1. The parties shall file simultaneous briefs on the nature and timing of all appropriate remedial measures in 30 days’ time;
2. Simultaneous response briefs are due 15 days thereafter. The parties will provide the court with all evidentiary and legal support they believe is required for the court to make its ruling. If the parties do not believe that the court can rule on the appropriate remedy without the benefit of additional testimony, they should inform the court of the nature and extent of the testimony they believe is required.
B. Evidentiary Matters For the reasons set forth in this opinion, the motions set forth in our docket
numbers 151 (with respect to the admission of exhibits 98–100, 102, 118–119, 131, 141, 148, 150–152, 333, 391, 394, 405–406, 408, 414–415, 417, and 498) and 154 are DENIED. The motions set forth in our docket numbers 152 and 158 are GRANTED.
IT IS SO ORDERED. Entered this 21st day of November, 2016.
BY THE COURT: /s/ KENNETH F. RIPPLE Circuit Judge /s/ BARBARA B. CRABB District Judge

117

Appendix 1 – Partial “S” Curve for the Team Map

District

Observed Index_46 Index_47 Index_48 Index_49 Index_50 Index_51 Index_52 Index_53 Index_54

16

0.1555

0.1245

0.1345

0.1445

0.1545

0.1645

0.1745

0.1845

0.1945

0.2045

9

0.1844

0.1534

0.1634

0.1734

0.1834

0.1934

0.2034

0.2134

0.2234

0.2334

10

0.1963

0.1653

0.1753

0.1853

0.1953

0.2053

0.2153

0.2253

0.2353

0.2453

8

0.2068

0.1758

0.1858

0.1958

0.2058

0.2158

0.2258

0.2358

0.2458

0.2558

76

0.2098

0.1788

0.1888

0.1988

0.2088

0.2188

0.2288

0.2388

0.2488

0.2588

17

0.2183

0.1873

0.1973

0.2073

0.2173

0.2273

0.2373

0.2473

0.2573

0.2673

75

0.2572

0.2262

0.2362

0.2462

0.2562

0.2662

0.2762

0.2862

0.2962

0.3062

77

0.2984

0.2674

0.2774

0.2874

0.2974

0.3074

0.3174

0.3274

0.3374

0.3474

18

0.2995

0.2685

0.2785

0.2885

0.2985

0.3085

0.3185

0.3285

0.3385

0.3485

15

0.3141

0.2831

0.2931

0.3031

0.3131

0.3231

0.3331

0.3431

0.3531

0.3631

74

0.3368

0.3058

0.3158

0.3258

0.3358

0.3458

0.3558

0.3658

0.3758

0.3858

46

0.3474

0.3164

0.3264

0.3364

0.3464

0.3564

0.3664

0.3764

0.3864

0.3964

47

0.3562

0.3252

0.3352

0.3452

0.3552

0.3652

0.3752

0.3852

0.3952

0.4052

64

0.3697

0.3387

0.3487

0.3587

0.3687

0.3787

0.3887

0.3987

0.4087

0.4187

78

0.3725

0.3415

0.3515

0.3615

0.3715

0.3815

0.3915

0.4015

0.4115

0.4215

7

0.3812

0.3502

0.3602

0.3702

0.3802

0.3902

0.4002

0.4102

0.4202

0.4302

45

0.3852

0.3542

0.3642

0.3742

0.3842

0.3942

0.4042

0.4142

0.4242

0.4342

11

0.3895

0.3585

0.3685

0.3785

0.3885

0.3985

0.4085

0.4185

0.4285

0.4385

43

0.3937

0.3627

0.3727

0.3827

0.3927

0.4027

0.4127

0.4227

0.4327

0.4427

44

0.4047

0.3737

0.3837

0.3937

0.4037

0.4137

0.4237

0.4337

0.4437

0.4537

19

0.4053

0.3743

0.3843

0.3943

0.4043

0.4143

0.4243

0.4343

0.4443

0.4543

65

0.4063

0.3753

0.3853

0.3953

0.4053

0.4153

0.4253

0.4353

0.4453

0.4553

90

0.4138

0.3828

0.3928

0.4028

0.4128

0.4228

0.4328

0.4428

0.4528

0.4628

79

0.4156

0.3846

0.3946

0.4046

0.4146

0.4246

0.4346

0.4446

0.4546

0.4646

48

0.4158

0.3848

0.3948

0.4048

0.4148

0.4248

0.4348

0.4448

0.4548

0.4648

71

0.4412

0.4102

0.4202

0.4302

0.4402

0.4502

0.4602

0.4702

0.4802

0.4902

94

0.4463

0.4153

0.4253

0.4353

0.4453

0.4553

0.4653

0.4753

0.4853

0.4953

72

0.4483

0.4173

0.4273

0.4373

0.4473

0.4573

0.4673

0.4773

0.4873

0.4973

73

0.4488

0.4178

0.4278

0.4378

0.4478

0.4578

0.4678

0.4778

0.4878

0.4978

91

0.4494

0.4184

0.4284

0.4384

0.4484

0.4584

0.4684

0.4784

0.4884

0.4984

66

0.4503

0.4193

0.4293

0.4393

0.4493

0.4593

0.4693

0.4793

0.4893

0.4993

42

0.4504

0.4194

0.4294

0.4394

0.4494

0.4594

0.4694

0.4794

0.4894

0.4994

89

0.4543

0.4233

0.4333

0.4433

0.4533

0.4633

0.4733

0.4833

0.4933

0.5033

93

0.4624

0.4314

0.4414

0.4514

0.4614

0.4714

0.4814

0.4914

0.5014

0.5114

14

0.4649

0.4339

0.4439

0.4539

0.4639

0.4739

0.4839

0.4939

0.5039

0.5139

63

0.4721

0.4411

0.4511

0.4611

0.4711

0.4811

0.4911

0.5011

0.5111

0.5211

80

0.4737

0.4427

0.4527

0.4627

0.4727

0.4827

0.4927

0.5027

0.5127

0.5227

70

0.4751

0.4441

0.4541

0.4641

0.4741

0.4841

0.4941

0.5041

0.5141

0.5241

6

0.4788

0.4478

0.4578

0.4678

0.4778

0.4878

0.4978

0.5078

0.5178

0.5278

69

0.4819

0.4509

0.4609

0.4709

0.4809

0.4909

0.5009

0.5109

0.5209

0.5309

95

0.4854

0.4544

0.4644

0.4744

0.4844

0.4944

0.5044

0.5144

0.5244

0.5344

49

0.4923

0.4613

0.4713

0.4813

0.4913

0.5013

0.5113

0.5213

0.5313

0.5413

92

0.4926

0.4616

0.4716

0.4816

0.4916

0.5016

0.5116

0.5216

0.5316

0.5416

88

0.5055

0.4745

0.4845

0.4945

0.5045

0.5145

0.5245

0.5345

0.5445

0.5545

41

0.5056

0.4746

0.4846

0.4946

0.5046

0.5146

0.5246

0.5346

0.5446

0.5546

12

0.5122

0.4812

0.4912

0.5012

0.5112

0.5212

0.5312

0.5412

0.5512

0.5612

68

0.5143

0.4833

0.4933

0.5033

0.5133

0.5233

0.5333

0.5433

0.5533

0.5633

20

0.5162

0.4852

0.4952

0.5052

0.5152

0.5252

0.5352

0.5452

0.5552

0.5652

67

0.5175

0.4865

0.4965

0.5065

0.5165

0.5265

0.5365

0.5465

0.5565

0.5665

85

0.5247

0.4937

0.5037

0.5137

0.5237

0.5337

0.5437

0.5537

0.5637

0.5737

50

0.5253

0.4943

0.5043

0.5143

0.5243

0.5343

0.5443

0.5543

0.5643

0.5743

5

0.5256

0.4946

0.5046

0.5146

0.5246

0.5346

0.5446

0.5546

0.5646

0.5746

55

0.5302

0.4992

0.5092

0.5192

0.5292

0.5392

0.5492

0.5592

0.5692

0.5792

54

0.531

0.5

0.51

0.52

0.53

0.54

0.55

0.56

0.57

0.58

28

0.5332

0.5022

0.5122

0.5222

0.5322

0.5422

0.5522

0.5622

0.5722

0.5822

62

0.5372

0.5062

0.5162

0.5262

0.5362

0.5462

0.5562

0.5662

0.5762

0.5862

1

0.5373

0.5063

0.5163

0.5263

0.5363

0.5463

0.5563

0.5663

0.5763

0.5863

29

0.5382

0.5072

0.5172

0.5272

0.5372

0.5472

0.5572

0.5672

0.5772

0.5872

84

0.5384

0.5074

0.5174

0.5274

0.5374

0.5474

0.5574

0.5674

0.5774

0.5874

86

0.5402

0.5092

0.5192

0.5292

0.5392

0.5492

0.5592

0.5692

0.5792

0.5892

87

0.5422

0.5112

0.5212

0.5312

0.5412

0.5512

0.5612

0.5712

0.5812

0.5912

53

0.5424

0.5114

0.5214

0.5314

0.5414

0.5514

0.5614

0.5714

0.5814

0.5914

27

0.5426

0.5116

0.5216

0.5316

0.5416

0.5516

0.5616

0.5716

0.5816

0.5916

34

0.5439

0.5129

0.5229

0.5329

0.5429

0.5529

0.5629

0.5729

0.5829

0.5929

3

0.544

0.513

0.523

0.533

0.543

0.553

0.563

0.573

0.583

0.593

2

0.5458

0.5148

0.5248

0.5348

0.5448

0.5548

0.5648

0.5748

0.5848

0.5948

52

0.5501

0.5191

0.5291

0.5391

0.5491

0.5591

0.5691

0.5791

0.5891

0.5991

25

0.5519

0.5209

0.5309

0.5409

0.5509

0.5609

0.5709

0.5809

0.5909

0.6009

4

0.5523

0.5213

0.5313

0.5413

0.5513

0.5613

0.5713

0.5813

0.5913

0.6013

35

0.5528

0.5218

0.5318

0.5418

0.5518

0.5618

0.5718

0.5818

0.5918

0.6018

51

0.5572

0.5262

0.5362

0.5462

0.5562

0.5662

0.5762

0.5862

0.5962

0.6062

26

0.5576

0.5266

0.5366

0.5466

0.5566

0.5666

0.5766

0.5866

0.5966

0.6066

40

0.5602

0.5292

0.5392

0.5492

0.5592

0.5692

0.5792

0.5892

0.5992

0.6092

21

0.5663

0.5353

0.5453

0.5553

0.5653

0.5753

0.5853

0.5953

0.6053

0.6153

33

0.5664

0.5354

0.5454

0.5554

0.5654

0.5754

0.5854

0.5954

0.6054

0.6154

30

0.5731

0.5421

0.5521

0.5621

0.5721

0.5821

0.5921

0.6021

0.6121

0.6221

81

0.5752

0.5442

0.5542

0.5642

0.5742

0.5842

0.5942

0.6042

0.6142

0.6242

13

0.5772

0.5462

0.5562

0.5662

0.5762

0.5862

0.5962

0.6062

0.6162

0.6262

61

0.5777

0.5467

0.5567

0.5667

0.5767

0.5867

0.5967

0.6067

0.6167

0.6267

36

0.5791

0.5481

0.5581

0.5681

0.5781

0.5881

0.5981

0.6081

0.6181

0.6281

56

0.5797

0.5487

0.5587

0.5687

0.5787

0.5887

0.5987

0.6087

0.6187

0.6287

39

0.5839

0.5529

0.5629

0.5729

0.5829

0.5929

0.6029

0.6129

0.6229

0.6329

83

0.587

0.556

0.566

0.576

0.586

0.596

0.606

0.616

0.626

0.636

24

0.5924

0.5614

0.5714

0.5814

0.5914

0.6014

0.6114

0.6214

0.6314

0.6414

32

0.5934

0.5624

0.5724

0.5824

0.5924

0.6024

0.6124

0.6224

0.6324

0.6424

23

0.5996

0.5686

0.5786

0.5886

0.5986

0.6086

0.6186

0.6286

0.6386

0.6486

31

0.6014

0.5704

0.5804

0.5904

0.6004

0.6104

0.6204

0.6304

0.6404

0.6504

37

0.6017

0.5707

0.5807

0.5907

0.6007

0.6107

0.6207

0.6307

0.6407

0.6507

38

0.6018

0.5708

0.5808

0.5908

0.6008

0.6108

0.6208

0.6308

0.6408

0.6508

22

0.6088

0.5778

0.5878

0.5978

0.6078

0.6178

0.6278

0.6378

0.6478

0.6578

82

0.6095

0.5785

0.5885

0.5985

0.6085

0.6185

0.6285

0.6385

0.6485

0.6585

60

0.6148

0.5838

0.5938

0.6038

0.6138

0.6238

0.6338

0.6438

0.6538

0.6638

57

0.6163

0.5853

0.5953

0.6053

0.6153

0.6253

0.6353

0.6453

0.6553

0.6653

96

0.6275

0.5965

0.6065

0.6165

0.6265

0.6365

0.6465

0.6565

0.6665

0.6765

59

0.6561

0.6251

0.6351

0.6451

0.6551

0.6651

0.6751

0.6851

0.6951

0.7051

99

0.6702

0.6392

0.6492

0.6592

0.6692

0.6792

0.6892

0.6992

0.7092

0.7192

97

0.686

0.655

0.665

0.675

0.685

0.695

0.705

0.715

0.725

0.735

58

0.6946

0.6636

0.6736

0.6836

0.6936

0.7036

0.7136

0.7236

0.7336

0.7436

98

0.7109

0.6799

0.6899

0.6999

0.7099

0.7199

0.7299

0.7399

0.7499

0.7599

118 Appendix 2

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GRIESBACH, District Judge, dissenting. Through a secretive and one-sided process, the state Republican leaders who controlled the legislature used the latest computer software and political consultants to draw up legislative district maps with the unashamedly partisan goal of winning as many seats as possible. The maps they drew gave short shrift to traditional districting principles, often producing districts with unusual and suspicious shapes. The governor, also a Republican, quickly signed the act. The Republicans’ efforts were rewarded when, in the very next election, they won more than twenty percent more seats in the legislature than their statewide vote totals would have suggested.
The state in question is Indiana, not Wisconsin. The procedure used to draw the map in Indiana is identical to what led up to the enactment of Wisconsin’s Act 43: in short, it was crafted in secret by Republicans who, at least in Indiana, conceded that naked political gain was their overwhelming purpose. It also allowed the Republicans to win far more seats than their statewide vote totals would warrant—in the Plaintiffs’ parlance, a historically-high efficiency gap of eleven percent. Thirty years ago, however, the Supreme Court upheld the districts drawn by Indiana Republicans, with a plurality of the Court concluding that the Democrats had not shown they were sufficiently injured.1 Despite these similarities, and despite the Court’s clear reluctance to intervene in what are essentially political cases, the Plaintiffs ask this court to find that Wisconsin’s Act 43 is an unconstitutional partisan gerrymander.
In fact, Wisconsin’s Act 43 differs from Indiana’s upheld plan in one key fashion: unlike Indiana’s plan, Act 43 pays heed to all of the principles that have traditionally governed the districting process, such as contiguity, compactness and respect for political subdivisions like counties and cities. And unlike Indiana’s plan, there is no allegation that the Republicans drew any of the many kinds of unusually-shaped districts that are traditionally seen in gerrymandering cases. (The term “gerrymander” arises from a district shaped like a salamander that was drawn during the term of Massachusetts Governor Elbridge Gerry.) Thus, although Wisconsin’s plan, like Indiana’s, was politically motivated, but unlike Indiana’s, complies with traditional redistricting principles, and though it has the same partisan impact as the plan upheld in Bandemer, the Plaintiffs nevertheless ask the court to intervene, claiming to have
1 Davis v. Bandemer, 478 U.S. 109, 134 (1986) (plurality opinion). In Indiana, Democratic candidates received 51.9% of the vote. Only 43 Democrats, however, were elected to the 100-member House. Under the Plaintiffs’ efficiency gap calculations, winning 52% of the vote would entitle a party to receive 54% of the seats. Since they only received 43 seats, that results in an efficiency gap of around 11%. The Republicans won 57 seats despite winning only 48% of the statewide vote. The Plaintiffs’ proposed norm would have the Republicans winning only 46 seats. By winning 57, the Republicans won almost 24% more seats than their statewide totals would suggest. This very nearly mirrors the results of Wisconsin’s election in 2012, the first election conducted under Act 43.

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discovered the long sought-after “judicially discernable and manageable standard[]” for deciding such cases that a majority of the Court has thought might exist. 478 U.S. at 123; Vieth v. Jubelirer, 541 U.S. 267, 278–79 (2004) (plurality opinion).
The Plaintiffs have made that standard—the efficiency gap—the center piece of their case and asked this court to adopt it as a matter of constitutional law. (ECF No. 1 at ¶¶ 5, 44–53.) Despite the central role the efficiency gap has played in the case from the beginning, however, the majority has declined the Plaintiffs’ invitation to adopt their standard and uses it only as confirming evidence of a constitutional violation it has found based on its own newly created test: whether the State’s redistricting plan had the intent and effect of entrenching the Republican party in power over the life of the plan. For the following reasons, I part ways with my colleagues.
First, I am unable to accept proof of intent to act for political purposes as a significant part of any test for whether a task constitutionally entrusted to the political branches of government is unconstitutional. If political motivation is improper, then the task of redistricting should be constitutionally assigned to some other body, a change in law we lack any authority to effect. Second, to the extent the majority’s “intent to entrench themselves in power” standard is intended to mean what those Justices who have used that language in previous cases intended, I am not convinced that the plaintiffs have met this standard. Third, of the small majority of Justices who would even entertain political gerrymandering cases, several of them would require plaintiffs to establish that the challenged plan failed to follow traditional principles of redistricting. Because the Plaintiffs do not even attempt to argue that Act 43 violates traditional redistricting principles, I would enter judgment in favor of the Defendants on that basis alone. Fourth, it is very likely that the Republicans would have won control of the legislature in 2012 and 2014 even without the alleged gerrymandering, and so this case presents a poor vehicle for the remedying of any grave injustice.
In addition, the efficiency gap concept that the Plaintiffs have offered as the “judicially discernable and manageable standard[ ] by which political gerrymander cases are to be decided,” Bandemer, 478 U.S. at 123, appears to have substantial theoretical and practical limitations that render it unsuitable for the task at hand. First, the efficiency gap—or any measure that simply compares statewide votes to seats—is little more than an enshrinement of a phantom constitutional right, namely, the idea that voters for one party are entitled to some given level of representation proportional to how many votes that party’s candidates win in every assembly district throughout the state as a whole. Second, the efficiency gap simply measures each party’s ability to win more assembly seats, but winning more assembly seats does not usually translate into any significant additional power, and thus does not cause material political injury—unless of course it is the seat that turns over control of the legislature to the

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gerrymandering party. Third, the efficiency gap essentially begs the ultimate question of whether a partisan gerrymander occurred, and it fails to capture the essence of what it means to vote since it presupposes that voters are voting for a statewide party rather than simply for an individual candidate.
In addition to these theoretical problems, the efficiency gap suffers from practical issues as well. First, the Plaintiff’s efficiency gap calculation, which is based on tallying “wasted” votes, appears to ignore a large number of wasted votes attributable to winning candidates, thereby undermining its reliability as a tool for measuring even what it purports to capture. Second, the test Plaintiffs propose does not adequately account for Wisconsin’s political geography, which naturally “packs” large numbers of Democrats into urban areas like Madison and Milwaukee, resulting in hundreds of thousands of “wasted” votes in inevitable landslide Democratic victories for assembly candidates. Finally, the efficiency gap is highly volatile and could easily trigger judicial intervention when no intervention is warranted. For all of these additional reasons, I would enter judgment in favor of the Defendants.
I. Partisan Intent and Effect
I begin with a point upon which I agree with my colleagues. It is almost beyond question that the Republican staff members who drew the Act 43 maps intended to benefit Republican candidates. They accumulated substantial historical knowledge about the political tendencies of every part of the state and consulted with Dr. Ronald Gaddie to confirm their predictions about voting patterns. Though they denied the suggestion that such information was used to project future voting tendencies, my colleagues rightly conclude that when political staffers compile historical voting information about potential districts, their claim that they did not intend to use that information to predict future voting patterns is hardly worthy of belief. After all, these individuals are not operating under even the pretense that they are nonpartisan: they are employed by Republicans in leadership and draft district maps at their direction. That they would resort to partisan considerations in drawing the maps is therefore anything but surprising.
This alone does not make it wrong, however. The majority cites Rogers v. Lodge, 458 U.S. 613, 617 (1982), for the proposition that “equal protection challenges to redistricting plans require a showing of discriminatory purpose or intent.” But Rogers is a race discrimination case challenging an electoral system on the ground that it was intended to dilute voting strength of the black population. The intent to weaken a racial group’s political power in drawing district lines is always and everywhere wrongful. The same is not true for political motivations. The Supreme Court has long acknowledged partisan considerations are inevitable when partisan politicians draw

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maps. “The Constitution clearly contemplates districting by political entities, see Article I, § 4, and unsurprisingly that turns out to be root-and-branch a matter of politics.” Vieth, 541 U.S. at 285 (plurality opinion) (citing Miller v. Johnson, 515 U.S. 900, 914 (1995) (“[R]edistricting in most cases will implicate a political calculus in which various interests compete for recognition . . . .”); Shaw v. Reno, 509 U.S. 630, 662 (1993) (White, J., dissenting) (“[D]istricting inevitably is the expression of interest group politics . . . .”); Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“The reality is that districting inevitably has and is intended to have substantial political consequences.”)). In other words, so long as it is deemed acceptable for politicians to draw district maps—and it is—we cannot pretend to be shocked that legislators so engaged will act like the politicians they are. As Justice Stevens put it, “Legislators are, after all, politicians.” Karcher v. Daggett, 462 U.S. 725, 753 (1983) (Stevens, J., concurring). “[S]ome intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent.” Vieth, 541 U.S. at 344 (Souter, J., dissenting). “That courts can grant relief in districting cases where race is involved does not answer our need for fairness principles here. Those controversies implicate a different inquiry. They involve sorting permissible classifications in the redistricting context from impermissible ones. Race is an impermissible classification. . . . Politics is quite a different matter.” Id. at 307 (Kennedy, J., concurring).2
The majority opinion wrestles with the “how much intent is too much” question, a question that has bedeviled the courts for decades and caused several members of the Supreme Court to give up on finding an answer. But whose intent are we talking about and how does one go about measuring it? The Republican leadership clearly wanted a plan that would give them a majority of seats, but some of their members had to be talked into accepting less safe districts—the so-called donors—in the hope that they could still win their seat and the party would win a majority of seats as well. They more or less acquiesced. The more difficult question is how do you measure intent? A person either intends a result or he does not. Making gradations of intent a standard is a recipe for interminable litigation. Vieth, 541 U.S. at 286 (plurality opinion)
2 Notwithstanding the acknowledgement by almost every Justice to address the issue that partisan intent is to be expected in redistricting, the majority, citing Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016), suggests that it is an open question whether partisanship is an illegitimate redistricting factor. But the issue in Harris was whether a deviation of less than 10% from the equal population requirement of Reynolds v Sims, 377 U.S. 533 (1964), could be justified by partisan considerations. The Court stated, “[E]ven assuming, without deciding, that partisanship is an illegitimate redistricting factor, appellants have not carried their burden.” Harris, 136 S. Ct. at 1310. Taken in context and in light of the Court’s repeated acknowledgement that partisan considerations are to be expected, I read Harris as leaving open the question whether partisan intent could legitimately justify an underpopulated district; not whether it is illegitimate in itself. See Cox v. Larios, 542 U.S. 947 (2004). Here, there is no allegation that any district was underpopulated.

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(“Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering.”).
My colleagues attempt to limit the potential for unending litigation such an intent element might encourage by holding that the level of partisanship may be deemed “too much” when the map-drawers intend to entrench their party in power for the life of the plan and achieves that effect. Slip Op. at 58, 71. Adding the qualification that the intent and effect be to entrench the party in power for the life of the plan, however, does not help. How is that intent different from intending to benefit the party? We are talking about redistricting plans, after all, not a bill to name the State mascot. Redistricting plans, by their very nature, affect future elections for the life of the plan. And what does “entrench their party in power” mean in this context?
The plurality in Bandemer sought to limit court intervention to cases where “a particular group has been unconstitutionally denied its chance to effectively influence the political process.” 478 U.S. at 132–33 (plurality opinion). On the statewide level, the plurality said, “such finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133. The standard adopted by the majority in this case is equally opaque, but less demanding. Plaintiffs have challenged the redistricting plan for Assembly seats, but the Assembly, by itself, can do little more than hold things up. Every four years, Wisconsin voters elect a governor. If plaintiff’s party is able to convince a majority of Wisconsin voters that their policies are better for the State, nothing the Republicans have done will prevent them from winning the governor’s office and not only stopping the Republicans from enacting their agenda at that point, but also denying them control over the next redistricting process. See Vieth, 541 U.S. at 362 (Breyer, J., dissenting) (“Where a State has improperly gerrymandered legislative or congressional districts to the majority's disadvantage, the majority should be able to elect officials in statewide races— particularly the Governor—who may help to undo the harm that districting has caused the majority’s party, in the next round of districting if not sooner.”).
Indeed, nothing will prevent a candidate from Plaintiffs’ party from convincing the voters in a district Republican staff members drew, believing it would elect a Republican candidate, from electing a Democrat instead. The assumption underlying Plaintiffs’ entire case is that party affiliation is a readily discernable characteristic in voters and that it matters above all else in an election. Voters are placed either in one

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party or the other based on their last vote.3 But party affiliation is not set in stone or in a voter’s genes:
[A] person’s politics is rarely as readily discernible—and never as permanently discernible—as a person's race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. Vieth, 541 U.S. at 287 (plurality opinion) (citing Bandemer, 478 U.S. at 156 (O’Connor, J., concurring in judgment)). True, many voters, perhaps most, vote for the brand; but many make their decision based on the person and his or her position on the issues that matter most to them at the time. Moreover, candidates for state offices run on different issues than candidates for national offices, which presumably explains the difference in voter turn-out and results in the recent Wisconsin presidential and gubernatorial elections. For all the confidence political experts may have in their predictions of future election results, Vieth itself stands as a stark reminder that they can be wrong. The plaintiffs in that case alleged that the Pennsylvania congressional plan was “rigged to guarantee that thirteen of Pennsylvania’s nineteen congressional representatives will be Republican.” Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 546 (M.D. Pa. 2002). Yet, as Professor Nicholas Goedert testified and pointed out in his report, Democrats won a majority of Pennsylvania’s congressional seats in the two elections following the Supreme Court’s 2004 decision, including twelve of nineteen in 2008. (ECF Nos. 50-1 at 13; 150 at 150:8–18.)
There are additional problems with the majority’s proposed standard. To the extent the term has been used by members of the Supreme Court, “entrenchment” has often referred to a minority party rigging the system so much that it could win a majority of seats even while consistently garnering only a minority of the statewide vote. For example, Justice Kennedy has noted that a plan “that entrenches an electoral minority” is more likely to be a vehicle for partisan discrimination. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 419 (2006) [hereinafter LULAC]. Justice Breyer’s Vieth opinion is more explicit: he explains that “[b]y entrenchment I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power.” 541 U.S. at 360 (Breyer, J., dissenting). In Justice Breyer’s view, “gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause.” Id. at 362. These
3 Plaintiffs offered no evidence as to actual party membership in Wisconsin. Because of its open primary system, voters in Wisconsin are not required to join a party in order to vote in that party’s primary election. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107, 110–11 (1981).

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Justices’ concerns about entrenchment thus appear to be focused on the problem whereby a majority of voters in a state are consistently deprived the opportunity to control a branch of government. In our case, however, the Republican Party is not a minority party in Wisconsin. In statewide elections, the state has elected a Republican governor in the last two general elections (plus a recall election, in 2012). In 2010 GOP members of the assembly received 53.5% of the statewide popular vote, while they obtained 52% of the vote in 2014. (ECF No. 125 at ¶¶ 286, 290.) Thus, in this case we are not dealing with a minority party entrenching itself in power, which means the majority of the citizens of Wisconsin are not consistently deprived of the right to control the legislature.
The notion that Republicans took drastic steps to entrench themselves in power in this sense is also undermined by recent history. When mapmakers sit down to redraw district maps, it is not as though they are drawing on a blank slate—the 99 districts then in existence will necessarily play a role in how the new districts will look. The majority opinion glosses over the fact that Republicans enjoyed very healthy efficiency gaps during the previous decade, despite the fact that the district maps then in effect were produced through plans created by federal courts, not a partisan legislature. As the Plaintiffs’ expert Simon Jackman concluded, the plan in effect during the previous decennial period favored Republicans with an average 7.6% efficiency gap, including a gap as large as 11.8% in 2006. (ECF No. 125 at ¶¶ 190, 192, 194, 242.) When one considers that the pre-existing maps were already quite favorable to Republicans, it is hardly surprising that the maps they ultimately created increased their advantage somewhat.
In fact, under the Plaintiffs’ proposed test the Republicans were obligated not only to draw fairer maps, but to engage in heroic levels of nonpartisan statesmanship. The Plaintiffs are evidently of the view that the Republicans, having achieved the oncein-a-lifetime feat of controlling both branches of the legislature and the governorship during a redistricting year, should have used that unique opportunity not for selfadvantage but instead to draw a map that was less favorable to them than even the court-drawn plan that governed the previous decade. Ironically, even if the Republicans had said to themselves, “let’s stick with a plan like the one drawn by the federal courts—it helps us enough already,” the Plaintiffs would still take umbrage at the resulting map and call it an impermissible partisan gerrymander, assuming the efficiency gaps continued to follow the pattern of the previous decade. Any test that requires heroic levels of nonpartisanship does not square with the courts’ recognition of the reality that legislators tasked with drawing maps will always seek to advantage their own party. Under these circumstances, it is difficult to credit the Plaintiffs’ assertions that the Republicans exhibited “too much” partisanship when they drew a

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map that was only somewhat more favorable to the GOP than maps drawn by a federal court the previous decade.
The Republicans’ control of the districting process appears to have been little different than the Republicans’ conduct in Davis v. Bandemer, 478 U.S. 109 (1986). There, the district court described the Republican-controlled process as “contrived,” after the Republicans enacted dummy bills and named Democratic “advisors” who in actuality had no input and “no access to the mapmaking process that ensued.” Bandemer v. Davis, 603 F. Supp. 1479, 1483 (S. D. Ind. 1984). The Republicans spent a quarter million dollars on a research firm, which used the latest computer equipment, while the Democrats had no such support. Id. at 1484. One Republican senator admitted that though the Democrats could offer their own map proposals, they would never be accepted. Id. This “unashamedly partisan” process resulted in party-line approval of the plan in both houses of the legislature and the prompt signature by the Republican governor. Id. And yet the plan drawn in Indiana was upheld, despite a nearly identical partisan effect as the current plan.
None of this is to extol the process whereby the district maps were drawn, and neither do I intend to espouse the cynical conclusion that politics must always be onesided and bare-knuckle. Indeed, the very accusation and at least the appearance of heavy-handed unfairness may itself be made a political issue and lead a significant number of less committed or independent voters to change their views about which party they wish to support. By the same token, I believe it is largely true that individuals who attempt to gain political advantage through map-drawing are not engaged in foul play or dirty tricks, but are merely using the power the voters have granted them to enact the policies they favor. They are not intending to “burden the representational rights of Democratic voters” by “impeding their ability to translate their votes into legislative seats.” Majority op. at 2. These are legal concepts that do not translate easily into the world of politics. Imagine a congressman facing President Johnson’s demand that he vote for the Civil Rights Act of 1964 or lose a key federal project in his district claiming that his constituents were deprived of their representational rights. The political process does not operate by the same rules that govern judges and courts. By and large, whether it is the Democrats or Republicans doing the gerrymandering, they try to create partisan majorities not to suppress opposing viewpoints but because they honestly believe they will then be able to enact the policies that in their view are best for the state, or nation.4
4 Notably, although the Democrat-Plaintiffs express outrage at the maps the Republicans drew, the Democrats are hardly immune to map-drawing chicanery of their own. For example, the plans they

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In sum, partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government.5 The standard proposed by the majority offers no improvement over the tests that have already been rejected by the Supreme Court. Moreover, even if I accepted the majority’s standard, I am unconvinced that Republicans intended to or could entrench themselves in power in the sense understood by those members of the Court that have addressed it. Given the fact that Republicans already enjoyed significant advantages under court-drawn districting plans then in effect, it should hardly surprise anyone that, when afforded the rare opportunity to draw their own maps, they extended their electoral advantage somewhat. I am therefore unable to conclude that Act 43's passage was anything other than the kind of “politics as usual” that courts have routinely either tolerated or acquiesced in.
II. A Gerrymander without Gerrymandering Justices Souter and Ginsburg counseled in Vieth that statewide districting
challenges are “a function of claims that individual districts are illegitimately drawn.” Vieth, 541 U.S. at 347 (Souter, J., dissenting). Therefore, it makes sense to “concentrate[] as much as possible on suspect characteristics of individual districts instead of statewide patterns.” Id. Surprisingly, the Plaintiffs in this action did exactly the opposite. Instead of pointing to specific districts that had been gerrymandered, they relied on statewide data and calculations, as well as spreadsheets, metadata, graphs and charts, all without referring to any actual maps or lines drawn by the Defendants. The Plaintiffs purported to show the “DNA” of gerrymandering in a graph comparing
proposed following the 2000 census reflect the same partisan intent as Act 43 and were “riddled with their own partisan marks.” As described by the three-judge panel that heard that case:
Leg Dem B and Leg Dem C divide the City of Madison into six districts radiating out from the Capitol in pizza slice fashion. The Leg Dem plans have higher levels of population deviation, lower levels of core retention, higher levels of disenfranchisement, and lower levels of compactness than the Alt A and Alt C plans, in part because they renumber the Senate districts in Milwaukee County (again for presumed partisan advantage). Baumgart v. Wendelberger, Nos. 01-C-0121, 02-C-0366, 2002 WL 34127471, at *4 (E.D. Wis. May 30, 2002). Because Wisconsin government was divided at the time, the Democrats were unable to enact their proposed plan into law, but there is no reason to believe they would not attempt to do so now if the circumstances were reversed. Importantly, there is no evidence that Act 43 violated any of the traditional redistricting principles cited by the Baumgartner court in rejecting the Democratic proposal.
5 It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015). Adoption of the majority’s standard may well compel States to do so.

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wards to districts, but, like a prosecutor trying to prove a murder without a body, not once did they actually show any district maps demonstrating the gerrymander they alleged occurred.
This was not an oversight. The reason for the absence of any discussion of individual district lines is that Act 43 does not violate any of the redistricting principles that traditionally govern the districting process, including compactness, contiguity and respect for political boundaries like counties and cities. In other words, unlike every other gerrymandering case to come before the courts, the plaintiffs did not argue that Act 43 created any districts with unusual lines or shapes. Nor were there appreciable problems with contiguity, compactness, or regard for political boundaries. Act 43’s districts split more counties than previous plans, but the plan splits fewer municipalities than the 1990s map. The current plan’s compactness scores are comparable to previous plans, and there is no indication that any districts had problems with contiguity. At trial, it was undisputed that the drafting of the current plan placed the correct number of citizens into each district and also took into account other more practical (and legitimate) concerns, such as the number of voters who would be disenfranchised in upcoming senate elections,6 as well as the residences of the actual legislators whose district boundaries were changing—factors none of the theoretical plans considered. In short, although the Plaintiffs argued that their own demonstration map created similarly compact and contiguous districts with less partisan effect, they conceded that the districts drawn by Act 43 are sufficiently compact, contiguous and respectful of political boundaries.
Gerrymandering, as the term’s etymology suggests, has traditionally been understood as the drawing of unusually-shaped districts in order to achieve a political advantage. Gerrymandering is “the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes.” Bandemer, 478 U.S. at 164 (Powell, J., concurring in part and dissenting in part) (quoting Kirkpatrick v. Preisler, 394 U.S. 526, 538 (1969) (Fortas, J., concurring)) (emphasis added)); see also Vieth, 541 U.S. at 323 (Stevens, J., dissenting, noting “outlandish district shapes” in traditional gerrymanders). Without evidence of any distortion of otherwise legitimate district boundaries, there is no gerrymander, at least as the term is traditionally understood.
The Plaintiffs’ belief that gerrymandering can occur without distortions of district boundaries is not just a definitional novelty, it flies in the face of Vieth. In Vieth, four justices found political gerrymandering claims non-justiciable, meaning that they believed courts should not even get involved in such cases. Of the remaining five
6 Because senate elections are staggered, the possibility arises that some voters who are moved to a different district would have no vote for a senate candidate for two consecutive election cycles.

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justices who would consider such claims, three of them (a majority) explicitly would require a failure to follow traditional redistricting principles as part of any gerrymandering test. Justice Stevens noted that “an uncouth or bizarre shape can easily identify a district designed for a single-minded, nonneutral purpose.” Vieth, 541 U.S. at 321 (Stevens, J., dissenting). Citing Justice Powell’s Bandemer opinion, Justice Stevens noted that “configurations of the districts [and] the observance of political subdivision lines . . . have independent relevance to the fairness of redistricting.” Id. at 322 (citing Bandemer, 478 U.S. at 165 (Powell, J., concurring in part and dissenting in part)). Justice Stevens observed that in Bandemer, Justice Powell had made the irregularity of district shapes part of his proposed test, remarking on the “strange shape of districts that conspicuously ignored traditional districting principles.” Id. Any test should “properly focus[] on whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends. . . . Under this definition, the merits of a gerrymandering claim must be determined by reference to the configurations of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of redistricting.” Id. Justice Stevens noted that the Court had used Justice Powell’s test in racial gerrymandering cases, and he believed it appropriate to do so in a political gerrymandering context as well. Id.
Citing the Vieth complaint, Justice Stevens observed that one challenged district “looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks Counties.” Id. at 340. The plan “is so irregular on its face that it rationally can be viewed only as an effort . . . to advance the interests of one political party, without regard for traditional redistricting principles and without any legitimate or compelling justification.” Id. Ultimately, under Justice Stevens’ proposed test, “if the only possible explanation for a district’s bizarre shape is a naked desire to increase partisan strength, then no rational basis exists to save the district from an equal protection challenge. Such a narrow test would cover only a few meritorious claims, but it would preclude extreme abuses . . . .” Id. at 339.
A “bizarre shape” was also a factor in the test proposed by Justices Souter and Ginsburg. As part of their proposed analysis, they would require a plaintiff “to show that the district of his residence . . . paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly: contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains.” Id. at 348 (Souter, J., dissenting). Because courts are already experienced at applying these standards, they argued, “a test relying on these standards would fall within judicial competence.” Id. Thus, of the bare majority of the Court that would even consider political gerrymandering claims, at least three members of the

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Vieth court would require a plaintiff to demonstrate that the challenged plan or district failed to adhere to traditional districting principles.
The Plaintiffs suggest that any test relying on traditional districting principles is foreclosed by precedent. Strangely, for that premise they rely on the Vieth plurality, which, it is true, criticized any standard based on district shapes as being difficult to manage: “Justice SOUTER would require lower courts to assess whether mapmakers paid ‘little or no heed to . . . traditional districting principles.’ What is a lower court to do when, as will often be the case, the district adheres to some traditional criteria but not others?” Id. at 296 (plurality opinion). While it is true that the Vieth plurality criticized reliance on traditional criteria, that hardly helps the Plaintiffs’ cause, since the same plurality opinion would reject their claim altogether on justiciability grounds.
My point is not that all Justices would require unusually shaped districts before considering a partisan gerrymander; the point is that of the Justices who would even entertain a partisan gerrymandering claim, a majority would require adherence to traditional districting principles as part of any test. Here, it is clear that seven of the nine Justices in Vieth would have ruled against the Plaintiffs, either on justiciability grounds or because they have not identified any violation of traditional districting principles. No other conclusion can be drawn from the Justices’ separate opinions. And, as discussed earlier, Justice Breyer would not find an unconstitutional gerrymander here because this case does not involve a minority party “entrenching” itself in power.
That leaves Justice Kennedy, whose Vieth concurrence expressed a grudging willingness to consider political gerrymandering challenges, but did not give any indication as to whether respect for traditional districting principles would play a role in any test he might find appropriate. Even so, he remarked that a legal violation would only arise if the line-drawers acted in an “invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307 (Kennedy, J., concurring). Since respecting political subdivisions and following standards of compactness and contiguity are “legitimate legislative objectives,” it would be impossible to say that Act 43, which actually achieved those objectives, was “unrelated to” those very objectives. Id. That it achieved those objectives, as well as other legitimate objectives, including consideration of the residence of the legislators themselves and Voting Rights Act requirements, would seem to preclude the finding of any violation under whatever test Justice Kennedy might entertain. The fact that the map-drawers chose to adopt plans that were more “assertive” or “aggressive” than others (a mistake of nomenclature they surely will not repeat) does not mean the maps they drew were “unrelated to” legitimate traditional districting principles.

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Indeed, Justice Kennedy’s view of the importance of traditional districting principles can be gleaned from Miller v. Johnson, a racial gerrymandering case, where his majority opinion found that “a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations.” 515 U.S. 900, 916 (1995). Justice Kennedy went on to note the district court’s finding that it was “‘exceedingly obvious’ from the shape of the Eleventh District, together with the relevant racial demographics, that the drawing of narrow land bridges to incorporate within the district outlying appendages containing nearly 80% of the district's total black population was a deliberate attempt to bring black populations into the district.” Id. at 917. Given the centrality of traditional districting principles to racial gerrymandering cases, there is every reason to believe that any political gerrymandering test Justice Kennedy might adopt would include the plan’s adherence to such principles as part of its analysis.
The majority addresses these concerns by concluding that following traditional districting principles should provide no “safe harbor” for an Equal Protection violation. It is possible to see the argument in such a light if all one is concerned with is raw numbers, or translating votes into seats. In my view, however, the Defendants are not asking for a safe harbor, they are asking the court to conclude that the drawing of bizarrely shaped districts is part of the very definition of unconstitutional gerrymandering itself—to the extent such a claim exists. Looked at from the voter’s perspective, living in a district that looks like some type of amphibian is itself a component of any gerrymandering injury that voter might suffer. Thus, I do not view the following of traditional districting principles as a “safe harbor” that would whitewash any Equal Protection violation; instead it is evidence that the map-drawers were not committing a violation at all. Without gerrymandered districts, there is no unconstitutional gerrymander.
This conclusion is reinforced by Cox v. Larios, a one-person, one-vote case. There, Democratic mapmakers in Georgia drew maps designed to pit large numbers of Republican incumbents against each other, resulting in nearly half of the Republican delegation losing their seats. The Supreme Court summarily affirmed the three-judge district court’s decision finding an Equal Protection violation. 542 U.S. at 947–50. Key to the district court’s conclusion was its finding that, in drawing the maps that contained many “oddly shaped” districts, the Georgia legislators paid no heed to traditional districting principles like compactness or contiguity. Larios v. Cox, 300 F. Supp. 2d 1320, 1330 (N.D. Ga. 2004).
[O]ne can easily discern [an absence of compactness] just by looking at the maps themselves . . . . Moreover, as we have noted, a more sophisticated

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analysis of district compactness, calculated by the perimeter-to-area measure or the smallest circle measure, also establishes that compactness was not a factor here. Indeed, quite a few of the districts have shapes that defy Euclidean geometry. The drafters of the House and Senate Plans made no effort to keep districts compact and certainly did not create deviations for the purpose of improving compactness. Id. at 1350.
In concurring with the Supreme Court’s summary affirmance, Justices Stevens and Breyer wrote that Georgia’s
partisan gerrymander is visible to the judicial eye . . . . Drawing district lines that have no neutral justification in order to place two incumbents of the opposite party in the same district is probative of the same impermissible intent as the “uncouth twenty-eight-sided figure” that defined the boundary of Tuskegee, Alabama, in Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960), or the “dragon descending on Philadelphia from the west” that defined Pennsylvania's District 6 in Vieth, 541 U.S., at 340 (STEVENS, J., dissenting) (internal quotation marks omitted). Cox, 542 U.S. at 950 (Stevens, J., concurring).
Thus, contrary to the majority’s view, traditional districting criteria—the shape, size and other physical characteristics of a district—are part and parcel of an Equal Protection analysis because deviations from those norms are offensive wholly independent from any partisan effect they might occasion.
The Plaintiffs and the majority also suggest that advances in computer technology make it easy for map-drawers to produce pleasing-looking districts that stealthily mask a partisan purpose, and so merely following traditional principles and producing unsuspicious maps cannot be enough to pass muster. The idea of some kind of high-tech stealth gerrymander is nothing more than a bugaboo, however. Computer technology was advanced in 2004, when Vieth was decided. The Justices’ opinions cited above would all require a plaintiff to demonstrate districts with unusual shapes, without any apparent concern about computer technology. The Plaintiffs have offered no evidence that the technology that existed in 2011, when the Republicans drew the Act 43 maps, was somehow more sophisticated than what existed a mere seven years earlier when Vieth was decided.7
7 In fact, the Justices have been remarking on the use of technology in gerrymandering cases for decades. In Bandemer, for example, Justice Powell noted that “[c]omputer technology now enables gerrymanderers to achieve their purpose while adhering perfectly to the requirement that districts be of equal

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It may be worth pointing out that the Justices’ desire for normal-looking district lines is not a purely aesthetic conceit, or a “beauty contest.” Bush v. Vera, 517 U.S. 952, 977 (1996). As stated above, living in a bizarrely-shaped district is part of the injury a voter suffers in an unconstitutional gerrymander. Geographic lines that everyone can understand lend legitimacy to a district, minimize voter confusion, and suggest that voters are being treated similarly based on where they live rather than how they have voted in the past. As Justices Stevens and Powell have noted, “[C]onfigurations of the districts [and] the observance of political subdivision lines . . . have independent relevance to the fairness of redistricting.” Vieth, 541 U.S. at 322 (Stevens, J., dissenting) (citing Bandemer, 478 U.S. at 165 (Powell, J., concurring in part and dissenting in part)). And, as one commentator has noted:
Disregard of compactness facilitates gerrymandering by making it easier to include reliable voters in a particular district and avoid those who might be unreliable. It also destroys some of the advantages of singlemember districts, including a sense of community and an awareness of what areas a district includes. Disregard of compactness also substantially impairs the ability of potential candidates to organize on a grass-roots basis. . . . A district that is non-compact, such as the infamous 160 mile long “I-85” district in North Carolina, creates enormous difficulties in this situation. Paul L. McKaskle, Of Wasted Votes and No Influence: An Essay on Voting Systems in the United States, 35 Hous. L. Rev. 1119, 1144–45 (1998).
Just as importantly, perhaps, part of the Justices’ interest in policing the redistricting process is not merely in detecting invidious gerrymandering after the fact, but in preventing it from happening in the first place. As demonstrated at trial, the individuals drawing the lines will not know what their map’s efficiency gap will be until after the first election—typically, more than a year later—making it impossible for legislators to know in advance whether their plan will pass muster. In contrast, the
population.” 478 U.S. at 174 (Powell, J., concurring in part and dissenting in part). And in Vieth, Justice Kennedy noted that “[c]omputer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months.” 541 U.S. at 312 (Kennedy, J., concurring). Justice Breyer, too, observed that “[t]he availability of enhanced computer technology allows the parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin.” Id. at 364 (Breyer, J., dissenting). Computer technology was well-advanced in the 1980’s, and certainly by 2004, and the Justices were clearly aware of its benefits and dangers. When Justices Souter, Stevens and Ginsburg (three-fifths of the Justices who would consider political gerrymandering challenges) say that a test should include adherence to traditional districting principles, we cannot simply ignore those opinions on the Plaintiffs’ say-so.

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mapmakers (and their critics) will immediately be able to detect when their efforts have produced unusual and suspicious visual results—dragons in flight, salamanders, sick chickens, or any other of the flamboyantly monikered chimeras that creative cartographers have conjured up over the decades. Unlike most witnesses who testified at trial in this action, the line drawers will not require advanced graduate training in statistics, regression analysis, or political science, but merely a respect for traditional political boundaries and an affinity for relatively straight lines. Constitutional law need not become the province of a cottage industry of Ph.D.’s and statisticians.
Another benefit of reliance on traditional districting factors is that the public and other legislators, when presented with the proposed maps, will be able to identify unusual shapes, and litigation may commence immediately to prevent unlawful discrimination from affecting even a single election. Vieth, 541 U.S. at 339 (Stevens, J., dissenting, expressing hope that any test would “shorten the time period in which the pernicious effects of such a gerrymander are felt.”) As noted earlier, the Plaintiffs’ test will never even be triggered until after the first election under a new plan, which would allow legislators a free bite at what the Plaintiffs describe as the forbidden fruit. If a typical plan is only in force for five state assembly elections, a test that would guarantee that an entire election cycle must occur before any challenge would seem inadequate to the task of curbing the serious abuses the Plaintiffs allege. This is especially true in light of the incumbency effect. Allowing an election to take place under an unconstitutional gerrymander would allow political newcomers from the gerrymandering party to win an election on an unfair playing field, but then run as incumbents in the next election, thus preserving most or all of their ill-gotten gains even though the gerrymandered plan has ostensibly been fixed. This is exactly what happened in Texas, after a courtdrawn plan remedied a pro-Democratic map: “in the 2002 congressional elections, however, Republicans were not able to capitalize on the advantage that the Balderas Plan had provided them. A number of Democratic incumbents were able to attract the votes of ticket-splitters . . . and thus won elections in some districts that [now] favored Republicans. As a result, Republicans carried only 15 of the districts drawn by the Balderas court.” LULAC, 548 U.S. at 452 (Stevens, J., concurring in part and dissenting in part).
These are surely among the reasons that Justices Souter and Stevens both observed that constitutional violations should be easily detectible: Justice Souter (joined by Justice Ginsburg) believed such violations “can be shown straightforwardly” when traditional districting principles are violated, 541 U.S. at 348 (Souter, J., dissenting), while Justice Stevens noted that an offending plan would be “irregular on its face,” id. at 339 (Stevens, J., dissenting)—so obviously a gerrymander that the plan’s invidious purpose would be immediately detectable. As noted above, this would alert the drawers themselves that their plan was suspect, and if they failed to correct the problem

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it would allow quicker litigation in order to prevent the offending plan from affecting an election. In addition, requiring a violation of traditional districting principles would serve as a check on court intervention into the inherently political process of mapdrawing. As this court recognized in its summary judgment decision, no member of the Supreme Court has expressed a desire to involve the court in gerrymandering cases as a matter of course. Justice Stevens suggested that his “narrow test would cover only a few meritorious claims, but it would preclude extreme abuses,” such as those described in the California case of Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988), which involved “a large number of districts with highly irregular shapes, all designed . . . to dilute Republican voting strength throughout the State.” 541 U.S. at 339 n.34 (Stevens, J., dissenting). As Justice Souter suggested, courts are eminently capable of assessing traditional districting principles, Vieth, 541 U.S. at 348 (Souter, J., dissenting), whereas it is not clear that they are equipped to undertake the complex statistical and political science inquiries the Plaintiffs press in this case.8
In sum, this is hardly fertile ground for the kind of test Plaintiffs propose. Every Justice who has expressed an opinion on the subject would reject the Plaintiffs’ claim either because it is non-justiciable; because the challenged plan did not involve minority party entrenchment; or because the Plaintiffs failed to show that the Defendants violated traditional districting principles in some meaningful way. If this case were before the Vieth Justices, the Plaintiffs would likely lose 9-0.
III. The Republicans Would Control the Legislature Even Without a Gerrymander
Given courts’ historical reluctance to involve themselves in political gerrymandering cases, it would seem that this case presents a particularly poor candidate for court intervention. A key reason is that the Republicans would have won control of the legislature in both elections under Act 43 even without a gerrymander. In 2014, the most recent election, they won a majority of the statewide vote, and so naturally they would have won control of the chamber. And in 2012, the first election under Act 43, they won close to 49% of the statewide vote.9 Here, too, they would have retained control of the legislature. My colleagues and I are in agreement that, based on
8 The Plaintiffs also suggest that their proposed test does account for traditional districting factors. For example, if the Defendants can show that traditional districting criteria required them to draw the maps as they did, then that would excuse the large efficiency gap. But being able to cite traditional principles as some kind of defense is a far cry from the tests described above, which would require a failure to follow such principles as part of the burden plaintiffs must show. 9 It appears from the Plaintiffs’ calculations that the Republicans won something on the order of 48.6% of the statewide vote in 2012. (ECF No. 125 at ¶ 257.)

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Wisconsin’s political geography and the large efficiency gaps that have existed even under neutrally-drawn plans, Republicans enjoy some degree of natural advantage. (I address geography below, but in a nutshell it comes down to Democratic voters’ tendency to live in closely compacted areas in Milwaukee and Madison, whereas Republicans are more efficiently dispersed.) In fact, even the Plaintiffs’ own demonstration map, when adjusted to include the effect of incumbency, produced an efficiency gap of nearly 4% in favor of Republicans—and recall that this was a map drafted by a political science professor, hired by the Democratic-voting Plaintiffs, whose entire goal was to try to produce the smallest efficiency gap possible. (ECF No. 149 at 65:3.) Accordingly, it is very likely that Republicans, despite receiving less than 49% of the statewide vote in 2012, would have won control of the legislature even without any gerrymandering whatsoever, because they would have enjoyed a substantial advantage even under a neutrally drawn plan.
This is a major obstacle to the Plaintiffs’ argument because their case, as explained below, is based solely on an injury they describe as an inability to convert statewide vote totals into seats in the legislature; in other words, they blame the Republican gerrymander for their inability to control that branch of government. The fact that their inability to control the legislature is due not to Republican gerrymandering but to Republican statewide strength combined with certain natural advantages means, at a minimum, that this case is hardly the kind of outrageous partisan iniquity the Plaintiffs portray it to be. Many of the Justices who would entertain political gerrymandering challenges have expressed only a grudging willingness to do so, leaving the door open for review of only those most egregious partisan injustices. See, e.g., Vieth, 541 U.S. at 339 (Stevens, J., dissenting) (Justice Stevens’ narrow test “would cover only a few meritorious claims, but it would preclude extreme abuses.”). Here, it is difficult to perceive an extreme abuse when the gerrymandering party would have won control of the legislature even without gerrymandering.
IV. Theoretical Problems with the Efficiency Gap and other Votes/Seats Measures
In this court’s decision denying the Defendants’ motion to dismiss, the panel observed that the justices had expressed some support for the concept of partisan symmetry, a doctrinal cousin of the efficiency gap. Whitford v. Nichol, No. 15-CV-421BBC, 2015 WL 9239016, at *9 (W.D. Wis. Dec. 17, 2015). However, the court correctly noted that Justice Kennedy’s support was “tepid, at best,” and at the time we could also have rightly observed that the support of the other Justices was hardly a ringing endorsement of the symmetry theory. Id. (citing LULAC, 548 U.S. at 419–20 (Kennedy, J., concurring in the judgment)). Despite this faint praise, the court now is being asked

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to elevate the efficiency gap theory from the annals of a single, non-peer-reviewed law review article to the linchpin of constitutional elections jurisprudence. This request is made despite the efficiency gap’s significant, and likely insurmountable, limitations, as detailed below.
A. The Plaintiffs’ Case is Premised on a Right to Proportional Representation
The concepts of efficiency and waste are inherently normative ones, requiring us to consider the proper role of a vote, as opposed to a vote being “wasted.” If we say something is efficient, that implies knowledge of an ultimate purpose or goal: if a furnace is 90% efficient, that is a measure of how well it converts fuel into heat, with heat being the goal. According to the Plaintiffs, the goal of voting—voting’s only purpose, in fact— is to convert votes into additional seats in the assembly, and so one’s vote is only efficient insofar as it translates into more seats. Any other result is wasted and inefficient, like heat escaping from a leaky furnace.
Whether the argument is premised on the efficiency gap or on other measures comparing legislative seats to statewide votes, it is clear that the Plaintiffs’ case is really premised on a right to proportional representation, that is, the right to translate one party’s statewide vote totals into a given number of seats in the legislature. If Party A has a large statewide total of votes, say 60%, but has only received 51% of the seats, there is a large efficiency gap reflecting the disproportionality of that party’s representation: the number of seats they won was disproportionally small compared to their statewide vote totals. Any injury premised on such a comparison is an injury based on an absence of proportionality. As the parties have recognized, however, there is no constitutional requirement that groups of voters must enjoy political strength proportionate to their numbers. The Bandemer court recognized that “the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm.” 478 U.S. at 131–32 (plurality opinion). “Our cases . . . clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Id. at 130.
This principle was reiterated a decade later in Vieth:
Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal

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representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers. 541 U.S. at 288 (plurality opinion); see also id. at 338 (Stevens, J., concurring) (“The Constitution does not, of course, require proportional representation of racial, ethnic, or political groups.”).
My colleagues concede, as they must, that there is no constitutional right to proportional representation. In their view, however, the fact that there is no right to proportional representation does not foreclose looking to disproportional representation as evidence of a discriminatory effect. Yet it is unclear to me how that statement differs in practical terms from establishing a covert right to proportional representation itself: if there is no constitutional right to something, then why look to the absence of that thing as evidence of constitutional injury? Saying that there is a right to not have disproportional representation is tantamount to saying there is a right to have proportional representation. Suppose a plaintiff incarcerated in prison claimed injury because his meals tasted bad; in particular, he complained that the prison refused to serve him filet mignon and lobster for dinner every night. Of course there is no constitutional right to have steak and lobster in prison, and so a court would summarily reject the claim on that basis and move on. No court in the land would say that, “although there is no right to eat steak in prison, we see no reason we can’t consider the absence of steak and lobster as evidence that the prison’s food is so poor that it violates the Eighth Amendment.” If something is not a constitutional right, then its absence cannot cause constitutional injury. Here, the majority appears to be saying in one breath that there is no right to proportional representation but then in the next that the absence of proportional representation may constitute the entire basis of a cause of action. Disproportionality cannot be viewed merely as evidence of a partisan effect— the absence of proportionality is the signature feature of the Plaintiff’s entire case.
In denying that the Plaintiffs’ theory is based on a right to proportional representation, the majority also relies on an opinion of Justice Kennedy, who observed in LULAC that “a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority.” 548 U.S. at 419. From this, the majority appears to extrapolate the principle that when the number of seats a party wins deviates from how many we would “expect” it to receive, such a scenario could prove an unconstitutional partisan gerrymander. Again, however, the notion that we would “expect” a given number of seats requires imputing the normative judgment that a party’s seats won

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must be proportional to the party’s statewide vote totals. The fuller context of Justice Kennedy’s statement is as follows:
[C]ompared to the map challenged in Vieth, which led to a Republican majority in the congressional delegation despite a Democratic majority in the statewide vote, Plan 1374C can be seen as making the party balance more congruent to statewide party power. To be sure, there is no constitutional requirement of proportional representation, and equating a party's statewide share of the vote with its portion of the congressional delegation is a rough measure at best. Nevertheless, a congressional plan that more closely reflects the distribution of state party power seems a less likely vehicle for partisan discrimination than one that entrenches an electoral minority.
Id.
My reading of the above paragraph is that Justice Kennedy would probably agree with Justice Breyer that a map that allowed a statewide minority party to consistently win a majority of seats would be constitutionally suspicious. Justice Kennedy notes that the map reviewed in LULAC did not do this, however, because Republican congressional candidates won 58% of the statewide vote in Texas and received a healthy majority of 21 of the 32 available seats. Id. at 413. In other words, because the majority party received a majority of seats, LULAC was not a case where a plan “entrenches an electoral minority.” Id. at 419. This observation, modest as it is, does not suggest that disproportionality might be injurious on its own; instead, it merely means that it could prove problematic when the disproportionality is what allows a minority party to win a majority of seats—the entrenched minorities also described by Justice Breyer. In short, from Justice Kennedy’s opinion I am unable to glean a principle that would treat disproportional representation per se as a constitutional injury. If anything, it suggests a more stringent threshold for plaintiffs, requiring them to show that an established minority party has managed to rig the system to entrench itself in power despite the evident will of a majority of voters.
The Plaintiffs also argue that they are not insisting on using exact proportional representation as their benchmark. For example, they do not say that winning 48% of the statewide vote entitles them to 48% of the seats. But no one in Bandemer, or in any other case brought to the court’s attention, had insisted on strict 1:1 proportionality either, and so when they rejected gerrymandering challenges on that basis the courts do not appear to have had “strict” proportional representation in mind; they were rejecting the concept of proportionality more broadly. This is clearest in Vieth, where the plaintiffs argued for a loose proportionality standard that would entitle a party who won a majority of the statewide vote “to translate a majority of votes into a majority of

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seats.” 541 U.S. at 287 (plurality opinion). The plaintiffs were not arguing their 51% of the statewide vote entitled them to 51% of the seats, but merely that a statewide victory entitled them to control of the legislature—any percentage greater than 50%. The court rejected that test on the ground that the Constitution does not require that political parties “must be accorded political strength proportionate to their numbers.” Id. at 288. Thus, the court rejected that test not because a political party had no entitlement to a strict proportion of seats to votes; it rejected it because parties are not entitled to any proportion at all.
Here, the Plaintiffs’ claim is even more specific than the argument posited in Vieth: not only do the Plaintiffs insist on receiving a majority of seats for a majority of the vote (as in Vieth), they propose a linear 2:1 relationship between additional votes and seats. 51% of the statewide votes should garner 52% of the seats, while 54% of the votes would win 58% of the seats, and so on. Any significant deviation from that predetermined proportion must be justified in court. Such a scheme, of course, is the essence of proportionality.10
At this point it might be worth exploring why proportional representation is not a constitutional right. A key reason is that each election in each district is a separate affair. Wisconsin’s constitution, like that of the nation, did not create a form of government in which the party, or coalition of parties, that wins the majority of the statewide vote is given all of the tools needed to enact and implement its legislative program. Instead, we elect our representatives on a district-by-district basis. Some candidates will win in landslides while others squeak out narrow victories. There is no inherent reason to draw statewide inferences about the number of seats a given party “should” win based on either scenario. “[O]ne implication of the districting system is that voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties. Consequently, efforts to determine party voting strength presuppose a norm that does not exist–statewide elections for representatives along party lines.” Bandemer, 478 U.S. at 159 (O’Connor, J., concurring). Particularly at the assembly level, candidates are close to their voters. Responsiveness and personalities matter. The Plaintiffs have provided no reason to assume that each vote for a given candidate should be transformed into a vote for a state-wide party, nor why the total votes received by a group of candidates in 99 different districts should
10 Notably, the Plaintiffs’ proposal also produces unusual results. For example, under the Plaintiffs’ test, if a party received 60% of the statewide votes and won the same 60% of the seats, that would produce a 10% efficiency gap simply because it deviates from their preordained 2:1 relationship—with 60% of the vote, the victorious party “should” have received a seat bonus of 70% of the seats. Obviously, the need for court intervention in such a case would be completely absent, because the statewide majority party has won a large majority of seats. Yet under the Plaintiffs’ test such a plan must be thrown out (assuming intent were present) as an unconstitutional gerrymander.

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play some kind of prescriptive role in determining how many districts that party “should” win.
Another reason proportionality is not a right is that disproportionality is built in, and in fact even assumed, in winner-take-all systems of voting. “District-based elections hardly ever produce a perfect fit between votes and representation.” Id. at 133 (plurality opinion). On the federal level, the nationwide popular vote does not determine the presidency, and neither does it determine the House of Representatives or the Senate, both of which are voted on individual districts or separate states. If there is an anomaly in wasted votes between the parties, we do not rejigger the seats to grant one side more seats: wasted votes are just wasted votes. The same is true in any assembly district. A candidate could lose by a single vote, and yet none of the votes cast for him will translate into any additional power for his party. This is simply the nature of any system where the winner gets everything and the loser receives nothing. Early in our nation’s history, we experimented with a kind of proportional representation by allowing the second-place presidential candidate to become vice-president, giving something of a consolation prize to all of those voters whose votes would otherwise be “wasted.” But soon enough, after Thomas Jefferson became vice-president under President John Adams, that system was abandoned in favor of a winner-take-all paradigm.
Many other countries, including many of the countries in Western Europe, require some fashion of proportional representation, for example, by allowing voters to vote for a list of candidates. “If properly implemented, [proportional representation] allows all significant groups (political, racial, or otherwise) of the electorate to be represented in proportion to their population, it eliminates the evils of gerrymandering, and it eliminates the need to use race-conscious criteria in creating legislative districts.” McKaskle, Of Wasted Votes and No Influence: An Essay on Voting Systems in the United States, supra at 1126. But that is not the system of government the people who drafted and ratified the constitutions for the State of Wisconsin and the nation chose.
The point is that proportional representation is one possible way of electing legislators, governors or presidents, but it is not the only way. When states opt for winner-take-all districts, disproportionality is simply a side-effect of that decision:
If all or most of the districts are competitive . . . even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature. This consequence, however, is inherent in winner-take-all, district-based elections, and we cannot hold that such a reapportionment law would violate the Equal Protection Clause because the voters in the losing party do not have representation in

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the legislature in proportion to the statewide vote received by their party candidates. Bandemer, 478 U.S. at 130 (plurality opinion). This inherent disproportionality is more pronounced in states where the voters of one party are naturally clustered, or “packed” in relatively small geographic regions, like Wisconsin’s Democratic voters are in Milwaukee and Madison, as is explained by the majority opinion and below. In essence, adoption of the efficiency gap (or any other “gap” between statewide vote totals and seats) in such states would undermine the districting system itself. “If there is a constitutional preference for proportionality, the legitimacy of districting itself is called into question: the voting strength of less evenly distributed groups will invariably be diminished by districting as compared to at-large proportional systems for electing representatives.” Id. at 159 (O’Connor, J., concurring).
In fact, the only way to counter the adverse effect of the natural packing of one party’s voters in a few discrete geographic areas in pursuit of the goal of proportional representation is to “reverse” gerrymander districts in an attempt to more evenly distribute that party’s voters. Id. at 160. That is precisely what the Plaintiffs’ expert, Dr. Mayer, did with his demonstration plan. It wasn’t that the Defendants considered partisan voting patterns in designing their plan and Dr. Mayer did not. Indeed, Dr. Mayer considered actual votes, an advantage Defendants’ map-drawers did not have, and assumed that each vote would be for the same party’s candidate even if voting in different districts with different candidates. Regardless of whether that assumption is a reasonable one, the larger point is that requiring some kind of statewide votes-to-seats proportionality in a system where elections are for representatives in winner-take-all districts does not eliminate partisan gerrymandering, if by partisan gerrymandering one means drawing districts based on past voting history. Instead, it would constitutionally mandate gerrymandering in order to offset the effects of natural packing.
It follows that the number of votes a party receives in an entire state should have no relevance to any gerrymandering injury alleged by a voter in a single district, because any reference to statewide strength is the essence of proportionality. Id. at 130 (plurality opinion) (defining proportional representation as drawing district lines that are “in proportion to what their [party’s] anticipated statewide vote will be”). The premise of any test that merely compares statewide votes to seats is that there is something constitutionally wrong with disproportional representation. This is nothing short of a claim that voters of one party “must be accorded political strength proportionate to their numbers.” Vieth, 541 U.S. at 288 (plurality opinion). Because there is no such constitutional right, I would enter judgment for the Defendants.

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B. The Efficiency Gap Incorrectly Treats Seats Won as a Measure of Political Power
It seems intuitive to consider a party’s number of assembly seats as an adequate measure of political power in the assembly. The efficiency gap merely measures each party’s ability to win more seats, and so the efficiency gap also has a basic intuitive appeal. But upon even a cursory examination, it becomes clear that a party’s number of seats is often a poor measure of political strength. For example, if the Republicans had 51 members to the Democrats’ 48, only a political neophyte might think the two parties enjoyed about equal strength. The reality, of course, is that the Republicans have tremendously more power simply by virtue of the few extra seats that give them the majority in the legislature. Conversely, compare a Republican majority of 60-39 to a majority of 70-29. In the 60-39 case, the Republicans have a 21-seat edge, or 54% more seats than the Democrats. In the 70-29 assembly, the Republicans enjoy a massive advantage with more than double the Democrats’ number of seats. And yet no one with any experience in politics would think there was much practical difference between the two majorities. Once a majority is comfortable (however defined), the party in control has the ability to pass whatever bills it wants, and therefore winning (or losing) additional seats will often provide no practical increase (or decrease) in a party’s political power.11 The point is that every seat gained (or lost) does not represent an equivalent increase (or decrease) in political power—what is crucial is usually only the seats necessary for one party to secure a comfortable majority.
In 2014, the Republicans won 52% of the statewide vote and took 63 seats. The Democrats won 48% of the vote and took the remaining 36 seats. This resulted in an efficiency gap of around 10% in favor of the Republicans. (ECF No. 125 at ¶¶ 258, 290.) If the efficiency gap were zero (the Plaintiffs’ ideal), the Republicans would have won only 54% of the assembly seats (53 or 54 seats), while the Democrats would have won 46% (45 or 46 seats). So, instead of enjoying a 54-45 majority, the purported gerrymander (allegedly) allows the Republicans to enjoy a more robust 63-36 majority. The problem is that the Plaintiffs never even attempted to identify a single practical difference in their political power between the actual 63-36 Republican majority and the “ideal” 54-45 majority that would exist under a zero efficiency gap. Whether the Republicans have a majority of 9, 15, or 27 is not likely to impact anyone in any material sense: either way, the Republicans are in charge (by a comfortable margin) and able to pass whatever bills they want to pass. Not surprisingly, the Plaintiffs have identified no legislation that passed only because the Republican majority was larger than it otherwise would have been. (Ironically, the most controversial of the Republicans’ bills,
11 It is true that a two-thirds majority will have the power to override gubernatorial vetoes, but no one has suggested that would be relevant here.

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Act 10, was passed by the 2011 legislature, which was elected under a court-drawn district plan.)
This demonstrates at least three things. First, it is difficult to perceive any injury worthy of court intervention when a party that wins a majority of the statewide vote has merely increased its number of seats beyond what a zero efficiency gap would mandate.
A second obvious implication of the above is that any measure that treats all seats as being of equal value cannot be a reliable measurement of political harm. The efficiency gap is all about increasing seats, treating every seat as equal and the gaining of more seats as the only efficient use of a vote. But in many elections, including 2014, the additional seats the majority party gained, allegedly through their gerrymander, do not appear to have any discernible impact on their power. In fact, as long as the Republicans maintain statewide vote totals above 48 or 49 percent (as in 2012), we would expect (based on history and even the demonstration plan) that even under a neutrally-drawn plan they would enjoy comfortable control of the assembly. Thus, a measure that is based solely on the number of seats one party wins does not seem up to the task of measuring, or even identifying, the kinds of partisan gerrymanders that might cry out for court intervention. Because all seats are not alike, neither are all efficiency gaps alike. A 10% gap, as seen in 2014, will be of almost no practical import because it merely increased seats for a party that would have maintained comfortable control of the chamber even without gerrymandering. This gives the lie to the Plaintiffs’ hyperbolic claim that the instant case represents “one of the worst partisan gerrymanders in modern American history.” (ECF No. 1 at ¶ 1.)
In sum, as a general principle, the efficiency gap oversimplifies political injury by assuming that any gain or loss of seats equates to a proportional gain or loss of political power, when in fact the raw number of seats is often irrelevant. By reducing political power to gaining seats—regardless of how many seats the gerrymandering party would otherwise have—the efficiency gap does not adequately measure, or even detect, political gerrymandering injuries. Accordingly, I would not rely on the efficiency gap, or any other measure comparing statewide votes to seats, to find a partisan gerrymander in this case.
C. Votes are Meaningful, even if “Inefficient”
In addition to oversimplifying the analysis by treating all seats equally, the Plaintiffs’ analysis ignores the fact that votes “count” even if they do not lead to additional seats. “[O]ur system of representative democracy is premised on the assumption that elected officials will seek to represent their constituency as a whole,

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rather than any dominant faction within that constituency.” LULAC, 548 U.S. at 469–70 (Stevens, J., concurring in part and dissenting in part) (citing Shaw v. Reno, 509 U.S. 630, 648 (1993)). It is of course undeniable that one of the central purposes in voting is to try to have one’s political party win additional seats, especially if that means taking control of a branch of government. But “the power to influence the political process is not limited to winning elections.” Bandemer, 478 U.S. at 132 (plurality opinion). In short, it is not accurate to say that votes are “wasted” merely because they fail to increase seats for one’s political party. The Plaintiffs’ reliance on the efficiency gap is ultimately a reductionist exercise that fails accurately to account for the influence of lost votes and exaggerates the role of winning seats in the voting process.
1. Votes are not “Wasted” Simply Because they do not Produce Additional Seats
The Plaintiffs have presented this as a cracking case, meaning that they allege the Republicans drew the maps in order to allow themselves to win a large number of close (but not too close) elections in districts that skewed slightly Republican. This enabled the Republicans to efficiently win narrow victories, while the Democrats squandered hundreds of thousands of votes in landslide wins in their own districts. Even though the Plaintiffs would no doubt prefer that the Democrats had won some of those seats, it is not as though those lost votes are completely “wasted.” Plaintiffs ignore the fact that Republicans and Democrats are not fungible: the (R) next to a candidate’s name does not mean he will vote the same as the Republican candidate in the next district. “The two major political parties are both big tents that contain within them people of significantly different viewpoints.” Baldus v. Members of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012). Thus, a Republican who has won with only 51% of the vote will very likely govern differently than one who has a safe seat, just as a Republican in Massachusetts will be different from one in Utah. It is exceptionally likely that legislators in swing districts will adopt more moderate, centrist positions than some of their colleagues, and they will of necessity be more responsive to the 49% of the electorate that did not vote for them. If that is true, then the losing candidate’s votes were not “wasted” at all. They serve as an unsubtle reminder that the legislator may ignore the views of the minority party at his own risk. The same, of course, is true of those legislators whose seats are so safe that they routinely win in landslides or seldom face opposition. It would not be surprising if legislators from Milwaukee Democratic districts or suburban Waukesha County Republican districts, for example, represented viewpoints further from the center of their respective parties’ ideologies, being more concerned about a primary challenge from within their own party than any threat from a candidate from the other party. The fact that thousands of votes in those districts do not translate into seats does not mean that they have no impact on the

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individuals who represent those districts. Instead, they provide cover to legislators on both sides of the aisle and give voice to the more liberal and conservative views their respective parties espouse. As a general principle, legislators from safe seats behave differently: “the Constitution does not answer the question whether it is better for Democratic voters to have their State’s congressional delegation include 10 wishywashy Democrats (because Democratic voters are “effectively” distributed so as to constitute bare majorities in many districts), or 5 hardcore Democrats (because Democratic voters are tightly packed in a few districts).” Vieth, 541 U.S. at 288 (plurality opinion). Since it is the excess of wasted votes that make those seats safe in the first place, these excess votes cannot be said to be wasted: they shape the larger political debate, even if they do not translate into additional seats in the legislature. As the Bandemer plurality explained:
the power to influence the political process is not limited to winning elections. An individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district. We cannot presume in such a situation, without actual proof to the contrary, that the candidate elected will entirely ignore the interests of those voters. This is true even in a safe district where the losing group loses election after election. Thus, a group’s electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause.
478 U.S. at 132 (plurality opinion).
Finally, it should go without saying that because the ballot is secret, a minorityparty voter in a given district will have as much access to his legislator as any other voter—to seek help in dealing with a government agency, to express a view about pending legislation, or to request help in securing funds for repairing a local bridge or extending a state bike trail. The bills passed by a legislature get all of the attention, but the behind-the-scenes, day-to-day work of a legislator involves countless services for constituents, none of which depend on which party holds a majority in the assembly. Focusing solely on translating votes into seats ignores the fact that winning additional seats is not the only purpose in voting.

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2. Voting is Simply a Choice For One’s Own District
In addition, reliance on the efficiency gap ignores what actually occurs at the ballot box and how voters likely perceive what they are doing by voting. Simply put, many voters do not think in terms of efficiency or wasted votes or, more generally, about translating votes made in individual districts into a statewide phenomenon. Imagine a voter in one of the state’s heavily partisan districts in which the assembly candidates routinely run without opposition. For example, in 2014 Democratic incumbent Rep. Leon D. Young won District 16 with 16,183 votes compared to just 261 votes for unspecified write-in candidates, a landslide win with more than 98% of the vote.12 When those 16,183 voters placed their vote for Rep. Young—the only name on the ballot—they very likely knew that Young would win in a landslide and that their vote was an exercise in futility, at most a symbolic gesture. They could have left that spot blank, or stayed home that day, and Rep. Young would have won anyway, since he was unopposed. The same is true of voters in District 58, where Republican Bob Gannon ran unopposed and won 22,087 votes to just 483 votes for unregistered candidates. Surely most of these candidates’ voters knew their votes were “wasted” in the Plaintiffs’ sense of the term—that they were unnecessary to winning any additional seats for their candidate’s party. But it is unlikely that such voters perceived some sort of injustice arising out of the fact that Young and Gannon—the candidates they supported—would win by such large margins. In other words, voters in such circumstances expect that their votes will not gain additional seats for their party (on a statewide basis), and, to the extent they consider the question at all, they likely believe that such a phenomenon (“inefficiency”) is simply part of the democratic process.
The larger point is that, in voting, a citizen is simply expressing a choice about who he believes is a better candidate to represent his own district, which of course is the only question the ballot asks the voter to answer. The Plaintiffs presented no evidence that voters view their vote as an exercise in maximizing the number of seats their party wins in the assembly, nor is it plausible that voters believe their vote in a single district should be calculated in assessing whether the number of seats their party won, on a statewide basis, is fair. “[O]ne implication of the districting system is that voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties. Consequently, efforts to determine party voting strength presuppose a norm that does not exist– statewide elections for representatives along party lines.” Bandemer, 478 U.S. at 159 (O’Connor, J., concurring).
12 G.A.B. CANVASS REPORTING SYSTEM COUNTY BY COUNTY REPORT, 2014 GENERAL ELECTION (Nov. 26, 2014, 2:12 PM), http://www.gab.wi.gov/sites/default/files/11.4.14%20Election%20Results%20-%20all%20officesc%20x%20c%20report.pdf.

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In fact, it is not difficult to imagine some voters preferring a result opposite of the Plaintiffs’ assumption. Although there are thousands of die-hard party members like Plaintiff Whitford in both parties, many voters are not quite so committed. A given voter might like an incumbent Republican in his own district, even if that voter leans Democratic in other respects, and so such a voter will vote for the Republican assembly candidate even while preferring that his vote does not translate into additional Republican seats in the assembly. Such a voter would be surprised if his wasted Republican vote were used in some sort of ex post facto calculus to determine whether the Republican candidates won “enough” seats that year. And what of ticket-splitters and independents? Imagine a voter who votes for a Democratic assemblyman, a Republican state senator and a Republican governor. What are we to make of such a ballot, except to conclude that the voter is expressing individual preferences about individual races, rather than some kind of global desire to increase seats for a given party?
In sum, reliance on the efficiency gap ignores what the Bandemer court pointed out, which is that there is more to politics than winning seats, and even the winning of more seats often has little practical impact on one party’s power. In addition, it overlooks the reality that individual voters do not perceive winning additional seats as the overwhelming purpose of voting, either. Because the efficiency gap (as well as Professor Gaddie’s S-curves) are measures only of translating statewide vote totals into legislative seats, it is difficult to see how they could adequately measure any unconstitutional level of partisan gerrymandering.
D. The Efficiency Gap Begs the Ultimate Question
An additional problem with the Plaintiffs’ reliance on the efficiency gap is that the theory relies on circular logic to prove its point. Specifically, in this case the efficiency gap is merely a somewhat more sophisticated way of saying that the Republicans won a large number of close elections. This is because winning close elections is the surest way to make sure the other side racks up lots of wasted votes— every losing vote is wasted, whereas only a few winning votes are wasted. For example, if A defeats B 5,200 to 4,800, A has wasted only 199 votes while B has wasted a whopping 4,800—an eye-popping efficiency gap of 46%! This adds up, of course, any time there is a statewide trend, and so any time one party wins a lot of close elections, the efficiency gap will necessarily be high. That is simply and unavoidably how the Plaintiffs’ math works. But simply stating that there is a high gap does not tell us anything about gerrymandering, however, even if partisan intent is present; it simply means one side won significantly more close elections than the other. And the efficiency gap presumes that every lost vote in every election is a “cracked” vote, i.e.,

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evidence of gerrymandering. Under the Plaintiffs’ theory, any time one side wins a lot of close elections, the map must have been gerrymandered (assuming one side controlled the process).13
The second problem resulting from reliance on the efficiency gap is that the Plaintiffs would use the Republicans’ own electoral success against them: under their logic, the more close races the Republicans win, the more votes the Democrats waste, which produces a large efficiency gap and therefore means the Republicans’ wins must have been the result of an invidious gerrymander—a self-fulfilling prophecy. It thus should be clear that using the efficiency gap simply begs the question of whether there was a gerrymander by answering “yes” any time one party wins significantly more close elections than the other. Without addressing why one party might have won more close races than the other, and without evidence of specific districts that were gerrymandered, we are left only to guess that the result must have been caused by gerrymandering.
This reinforces my view, set forth above, that it is dangerous, and even misleading, to find unconstitutional gerrymandering on the basis of statewide vote totals rather than looking at actual maps to detect suspiciously-drawn districts that are non-contiguous or compact. In this case, there was no evidence of an actual gerrymandered district, no map that looked bizarre, and not even a suggestion as to how the map-drawers moved lines here and there to achieve their allegedly unconstitutional ends. Instead, the evidence of the effects of gerrymandering is simply that one party won a lot of close elections. It should be obvious that winning close elections is not unconstitutional, and yet that is all the efficiency gap shows—that a party who loses lots of close races will have far more wasted votes, producing the high efficiency gap seen in this case. Thus, without any actual evidence of gerrymandering, I would find in favor of the defendants.14
13 The Plaintiffs would object that this analysis ignores the fact that their test also requires evidence of partisan intent. Thus, it is triggered not merely by the existence of a certain efficiency gap but also the presence of intent. But as this case demonstrates, it will be easy enough to show intent whenever one side controls the process. The fact that there will always be some partisan intent in cases like this will enshrine the efficiency gap analysis as the decisive factor.
14 A final concern is that the Plaintiffs’ test presumes that parties should have the same number of wasted votes, even if there are different numbers of voters for each party. But what happens when the two parties have very different numbers of voters? In Massachusetts, for example, three of every four voters who registered a party affiliation registered as a Democrat. Massachusetts Registered Voter Enrollment: 1948–2016, WILLIAM FRANCIS GALVIN, SECRETARY OF THE COMMONWEALTH OF MASS., https://www.sec.state.ma.us/ele/eleenr/enridx.htm (last visited Nov. 3, 2016). This is reflected in the fact that the Massachusetts House of Representatives consists of 122 Democrats and only 34 Republicans.

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V. Practical Problems with the Efficiency Gap A. The Efficiency Gap’s “Wasted Votes” Metric Appears Incomplete
In addition to the more abstract problems with the efficiency gap and other votes/seats measures noted above, more practical ones are evident as well. I begin with what appears to be the Plaintiffs’ method of calculating wasted votes. To recall, a “wasted” vote falls into one of two categories: a vote in excess of 50%+1 for the winning candidate (“surplus” votes), and any vote for a candidate who has lost (“lost votes”). It is easy enough to understand how to calculate a party’s lost votes, but it remains opaque why a party’s surplus votes should be calculated based on a “50% plus one” standard. (In fact, the Stephanopoulos and McGhee article, in which the theory is propounded, ignores the “plus one” requirement entirely, but that is beside the point.15) The theory is that the winning party needed 50% plus one of the total votes cast in order to win the seat, and so any votes in excess of that amount are deemed “surplus” and therefore wasted.
But reliance on one-half (plus one) of the total votes produces unexpected results, primarily because winning elections is not an exercise in division but in addition: in reality, all you need to win an election in a two-candidate race is one more vote than the other candidate, not 50%-plus-one of the total votes. For example, if the Indians defeat the Cubs 8 to 2, any fan might say that the Indians “wasted” 5 runs, because they only needed 3 to win yet scored 8. Under the Plaintiff’s theory, however, the Indians needed 5 runs to beat the Cubs that day: 4 runs to reach 50% of the total runs, plus one to win. That, of course, is absurd.
The central flaw is that when discerning how many votes it takes to win an election, we should not care what the total votes are, because that is an abstraction that factors in how many votes the winning candidate receives. Since every vote cast for the winning candidate increases the total number of votes (the denominator of the percentage), it also necessarily increases the number that candidate needs to reach 50% plus one. This reduces, by half, the winning candidate’s number of wasted votes. The key point is that there is no reason to believe the number of votes needed to win should be determined by how many votes the winning candidate receives. Just as a baseball
Under the Plaintiffs’ efficiency gap analysis, a perfectly symmetrical map (efficiency gap of zero) would require equal numbers of wasted votes on both sides. Yet such a result is impossible to imagine in a state where the number of voters in each party is so unequal at the outset. On what constitutional principle would one rely to expect that the Republicans, who are vastly outnumbered, could ever produce similar numbers of wasted votes as the Democrats? 15 Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).

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game is not decided by reference to total runs, an election is not decided by a fraction of total votes. Instead, the number of votes needed to win is simply the number one more than the losing candidate won, and therefore anything beyond that should be counted as a “wasted” vote, using Plaintiff’s terminology.
This defect is not just a quibble because it exposes the oddity of a scenario the Plaintiffs described. In an effort to downplay the influence of naturally packed Democratic voters in Milwaukee on the efficiency gap (a phenomenon discussed below), Plaintiffs asserted that in a 75-25 district, wasted votes for each party would be a “wash.” Under their math, if the Democratic candidate received 7,500 votes and the Republican received 2,500, then the Republicans would waste 2,500 votes and the Democrats would waste 2,499 (7,500 minus 5,001, which is 50% plus one of the total votes cast). Since the wasted votes were virtually equal, they explained, the naturally packed Democratic votes in such districts did not have any impact on the overall efficiency gap. This, of course, fit very well with the Plaintiffs’ overarching theory of the gerrymander, which was that Republicans had cracked large numbers of Democrats out of several districts in order to create many districts that now leaned Republican. The efficiency gap, in their view, was due to this intentional cracking rather than to the “natural” packing that exists in several heavily-Democratic districts.16
But it is counterintuitive to believe that wasted votes would be equal in a 75-25 district, when one party wins by a landslide. Suppose the Republicans had drawn lines designed to pack thousands of Democratic voters into new 75%-25% districts. Under Plaintiffs’ logic, such heavily slanted districts would have no impact on the efficiency gap, despite the explicit packing of thousands—or hundreds of thousands—of voters. Plaintiffs never explained why a 75-25 district should be viewed as some kind of magical “neutral” district, when in reality it could be a deliberate, and even extreme, gerrymander, full of wasted votes. Instead of relying on a 50%-plus-one standard, it would make much more sense to count all the wasted votes, i.e., those in excess of what the Democrats actually required to win. In a 7,500 to 2,500 election, the Republicans still waste all 2,500 losing votes, but the Democrats waste 4,999 votes: 7,500 minus the 2,501 they needed to win. Now, instead of pretending that the district is a wash, the Democrats are properly counted as having wasted twice as many votes as the Republicans, and this would serve as evidence of the gerrymander that actually occurred.
16The Plaintiffs did not argue that the Republicans had intentionally packed Democrats in Milwaukee or elsewhere. This is likely because many of the Milwaukee districts were drawn, with the help of lawyers and Dr. Gaddie, with an eye to Voting Rights Act concerns, and the Republican operatives who drew the rest of the map did not touch those districts’ boundaries.

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Conversely, suppose a district were drawn by a neutral party with the intent of making it competitive, or 50-50. In such a district, one candidate will necessarily lose— maybe only by a few votes—and yet such a result would produce massive numbers of wasted votes (and thus inefficiency) for the loser. For example, if A wins with 5,100 votes to B’s 4,900, B has wasted 4,900 votes and A only 99—producing a colossal efficiency gap. Under the Plaintiff’s theory, the result from a 50-50 district—a district designed to give each side a fair chance of winning—would be the strongest evidence of a gerrymander, despite the opposite intent. This discrepancy would seem to render the efficiency gap, as calculated by the Plaintiffs, an unhelpful and dangerously misleading metric for gauging actual electoral disparities. Counting all wasted votes, as described above, would alleviate part of this problem by doubling the number of votes wasted by winners, thus mitigating the outsized role close elections play in the Plaintiffs’ efficiency gap analysis. Because the efficiency gap, which the Plaintiffs made the centerpiece of their case, does not appear to adequately count wasted votes, I would find in favor of the Defendants.
B. The Efficiency Gap is Highly Volatile 1. Volatility in General
Immediately above I have attempted to demonstrate how one side’s losses in close elections can produce large efficiency gaps due to the fact that every vote for a losing candidate is considered wasted. Notably, massive efficiency gaps necessarily arise even in districts that are designed to be tossups. Given how easy it is to produce such large gaps, it should not be surprising that efficiency gaps are volatile. The Defendants’ expert, Professor Nicholas Goedert, credibly testified that wave elections were relatively common, and experience teaches that in some years the Republicans did well across the board, while Democrats performed well in others. In a good Republican year, it will not be surprising if the GOP’s candidates win a large number of swing elections, racking up lots of efficient victories and causing the Democrats to waste hundreds of thousands of futile votes. In such a year, the resulting efficiency gap would suggest a historic gerrymander, even under a perfectly neutral map. This effect is exaggerated when the Democrats’ voters are more closely packed than the Republicans, because then Democratic losses and wins both produce massive numbers of wasted votes. The wins tend to be landslides, producing large numbers of surplus votes, while the losses are close calls, resulting in huge pileups of lost votes. The Bandemer court predicted how volatile a measure like the efficiency gap could be:
If all or most of the districts are competitive-defined by the District Court in this case as districts in which the anticipated split in the party vote is within the range of 45% to 55%-even a narrow statewide preference for either

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party would produce an overwhelming majority for the winning party in the state legislature. This consequence, however, is inherent in winner-take-all, district-based elections, and we cannot hold that such a reapportionment law would violate the Equal Protection Clause because the voters in the losing party do not have representation in the legislature in proportion to the statewide vote received by their party candidates.
478 U.S. at 130 (plurality opinion) (emphasis added).
The Supreme Court thus recognized thirty years ago that even just a “narrow statewide preference” for a single party could produce a large majority of seats, and thus a large efficiency gap (a 51% statewide majority could easily produce 60% of the seats). Rather than evidence of some kind of constitutional problem, however, such a result is simply “inherent” in the system whenever a state (1) has winner-take-all districts and (2) experiences a “mild statewide preference” for one party. Id. This underscores the point about question-begging: when the Plaintiffs say there is a large efficiency gap, all they are saying is that one side won a lot of close elections in winnertake-all districts. As such, the efficiency gap appears to be of little utility in measuring constitutional injury.
2. The 2012 Election was Historic, Nationally and in Wisconsin
In addition to these general volatility concerns, it would appear problematic to rely on 2012—the first election after Act 43— as a benchmark for measuring wasted votes. As the Defendants’ expert Sean Trende pointed out, President Obama was hugely successful in a few, traditional bastions of Democratic voters—even more successful than in 2008. But in the rest of the state, his support declined. President Obama’s landslide wins in the Cities of Milwaukee and Madison resulted in hundreds of thousands of wasted votes—not wasted for the President, of course, but for the downticket assembly candidates who either won in landslide victories or, more commonly, were unopposed entirely. Many of these are wasted votes that would not otherwise exist but for the particular attraction of Obama’s candidacy in urban areas. A brief review of the difference in turnout for Democratic voters in a few of the Milwaukee and Madison wards will make the point.

Ward 17 Milwaukee 105 Milwaukee 116 Milwaukee 143

Obama 2012 Votes 716 715 843

154

Dem Gov. Votes 2014 493 466 573

Drop 31% 35% 32%

Madison 1 Madison 16 Madison 29

323 1,894 2,150

264

18%

1,685

11%

2,000

7%

In this small sample of the most heavily Democratic inner-city wards in Milwaukee (which voted over 99% for President Obama), the drop in turnout between the presidential election and the 2014 governor’s race was about one-third, reflecting a significantly higher level of interest in the 2012 presidential election.18 By contrast, Madison districts that went heavily (85-95%) for Democrats in those same years saw a much smaller decline in turnout in 2014. In fact, the Madison wards line up with the turnout seen in some of the staunchest Republican areas:

Ward

Romney 2012 Votes

Walker Votes 2014

Drop

Chenequa

327

288

12%

Cedar Grove

950

849

11%

Brookfield Ward 20

733

638

13%

Oostburg

1515

1427

6%

The point is that Republicans and non-Milwaukee Democrats were similarly energized in both elections, with turnout for the 2012 presidential election somewhat higher for both, as expected. By contrast, the numbers reflect that 2012 was a historic year for the African-American electorate, with turnout in those wards much higher than
17 Election data compiled by the Government Accountability Board are available at 2012 Fall General Election, WIS. ELECTIONS COMMISSION, http://elections.wi.gov/elections-voting/results/2012/fall-general (last visited Nov. 3, 2016).
18 According to City of Milwaukee data, these wards are between 93% and 95% Black. CITY OF MILWAUKEE VOTING AGE POPULATIONS BY PROPOSED ADJUSTMENTS TO 2011 VOTING WARDS (Sept.6, 2011), http://city.milwaukee.gov/ImageLibrary/Groups/ccCouncil/2011-PDF/ 2012VotingWardsDemographics9-2.pdf.

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it was two years later. But historic numbers do not create a reliable benchmark by which gerrymandering should be measured. In some districts, President Obama was winning by landslides of 85 or 90%, resulting in large —historically large—numbers of wasted votes that the Republicans do not match anywhere else in the state. It should thus be clear that President Obama’s presence on the 2012 ticket exaggerates the efficiency gap, attributing the cause to partisan bias rather than the historic urban voter turnout that year, which gave rise to historic numbers of wasted votes for Democratic assembly candidates. (Not surprisingly, the efficiency gap dropped in 2014.)
3. Act 10
The 2012 election also came at a dramatic time in this state’s political history. The legislature passed Act 10 in June 2011 and the Republican governor quickly signed it. The Act required government employees to increase their contributions to their health insurance and retirement benefits, and significantly reduced the power of public employee unions by abolishing mandatory membership dues and capping wage increases to a percentage based on the consumer price index. Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶ 1, 358 Wis. 2d 1, 19, 851 N.W.2d 337, 346 (2014). Prior to the Act’s passage, however, in an unprecedented move, all 14 Democrats in the state senate fled to Illinois to prevent passage of the bill, preventing a Republican quorum. Eventually the Republicans found a way around the quorum requirements and passed the bill, which was immediately subjected to court challenges and historic protests at the Capitol, often receiving national news coverage. Also unprecedented was the number of state senators almost immediately targeted for recall elections. Some Democrats were challenged for leaving the state during the Act’s consideration, while some Republicans were targeted by those who viewed Act 10's collective bargaining changes unfavorably. The next year, after organizers collected nearly a million signatures, Governor Walker was subjected to his own recall election, which he survived.
Whatever one’s views of Act 10 or the responses it generated, or of President Obama’s reelection, the point is that 2012 was hardly the kind of “normal” year one would expect to use as a basis of reference. The experts in this action testified at some length about the sometimes complex methods they used to ensure accuracy and engender confidence in their models, but none of that matters if the baseline election used in their analysis is such a historical outlier. Just as we would not rush out to buy flood insurance after a single, historic rainstorm, we should not have much confidence in a measure whose central data point is an unusual political year.

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C. Wisconsin’s Political Geography
It should go without saying that urban, more Democratic, voters are more closely packed together than suburbanites and farmsteaders, who lean more Republican but who are interspersed with lots of Democrats nonetheless. It is undeniable that voters may group together in the heavily Republican “collar counties” of Washington, Ozaukee, and Waukesha, which surround Milwaukee, while Democrats in Madison or Milwaukee often group more densely in duplexes or apartment buildings, or at least homes with much smaller lots. There are also far more residents in Milwaukee than in the more suburban counties. All things being equal, two individuals in Marathon County who supported Mitt Romney are likely to be spaced farther apart than two Barack Obama-supporting neighbors in Madison or Milwaukee. This phenomenon is taken as a given by the Vieth court: “Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a ‘natural’ packing effect.” 541 U.S. at 289–90 (plurality opinion). At trial, Professor Stephanopoulos acknowledged some natural packing of Democrats, and his own law review article acknowledges this effect as well. In addition, it is notable that the average efficiency gap during the 1980s (under a court-drawn plan, followed by amendments when Democrats gained full control) was 1.9% in favor of Republicans. In the 1990s (court-drawn plan) it was 2.4%, while the average gap during the 2000s (another court-drawn plan) was 7.6%. (ECF No. 125 at ¶¶ 190, 192, 194.) Thus, Republican-favoring efficiency gaps have been part of Wisconsin’s political landscape for more than three decades, long before Republicans had the ability to draw the lines in 2011.
As the Defendants pointed out at trial, the most lopsided Republican assembly win predicted even under the Plaintiffs’ demonstration plan favored the GOP candidate by a margin of about 75%-25%, but there were nine other districts that favored Democrats by even more than that, with winning tallies in excess of eighty percent. (Ex. 561.) In real-world terms, in 2012 President Obama won Assembly District 16 with more than 90% of the vote and, not surprisingly, the incumbent Democratic candidate ran unopposed. There simply are no districts that have comparable margins for Republicans. For example, Rep. Duey Stroebel beat the Democratic challenger in his Ozaukee and Washington County district with 23,905 votes to 9,682, or 71% of the votes.19 Waukesha County’s District 99 saw Chris Kapenga win 76% of the votes. Notably, even though heavily Republican, these districts were considered competitive enough to draw Democratic challengers, whereas there simply are no Republican
19 2012 Fall General Election, supra note 17.

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challengers in the more staunchly Democratic Milwaukee districts. That no one even runs as a Republican in several districts is itself highly suggestive of geographic packing. The Plaintiffs provided no evidence that this natural packing effect could somehow have been avoided, since Democratic voters remain tightly packed no matter how the lines are drawn.
It is true, as the Plaintiffs have noted, that counties like Waukesha County are every bit as Republican as Milwaukee County or Dane County are Democratic. Voters vote by district, however, not by county, and so the relevance of that point is unclear. Even so, if one looked at a red-blue map, one would clearly see the heavily red areas surrounding Milwaukee, which the Plaintiffs point to as evidence that the Republicans are also heavily clustered. But that does not mean the numbers somehow even out. The colors on the maps are a reflection of partisanship (intensity), not of raw numbers of partisan voters. At trial, it was shown that the number of Obama voters in Milwaukee County was 332,438, while Dane County had 216,071, for a total of 548,509. (ECF No. 150 at 135.) By contrast, Mitt Romney won the heavily Republican suburban counties with only 36,077 (Ozaukee), 162,798 (Waukesha) and 54,765 (Washington) votes, totaling 253,640—less than half the number of Obama voters in Milwaukee and Dane Counties. (Id.) Thus, these heavily Republican counties do not come close to balancing out the high concentration of Democratic voters in other counties.
None of the above is to suggest that natural geographic factors explain the entirety of the efficiency gap seen under Act 43, as the majority rightly concludes. Still, when pro-Republican efficiency gaps have existed in neutral court-drawn plans going back decades, and when they exist even in the Plaintiffs’ own demonstration plan, geography cannot and should not be ignored. Even if geography does not explain the entire gap, and even if it plays only a “modest” role—for example, three to six percent— it would seriously undermine the notion that the Republicans in this case engaged in a partisan gerrymander of historical proportions.
D. “Sign-Flipping” Should Not be the Standard for Court Intervention
Efficiency gaps are measured at every election, and these measures change every election based on a number of factors, including the issues raised, quality of local candidates, waves (as discussed above), turnout, and other natural phenomena such as shifts in demographics. Because any challenge will be based solely on the first election under a challenged plan, the Plaintiffs have attempted to create a standard for measuring the durability of the gap that is observed in that first election, that is, the tendency of an efficiency gap to persist throughout the remaining years of a plan. The Plaintiffs’ expert, Professor Jackman, presented credible evidence that efficiency gaps greater than 7% have a strong tendency to remain on the same side of zero over the

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course of a plan (especially for Republicans). For example, according to Professor Jackman, an initial efficiency gap of -10% has only a very small chance of turning positive (“flipping signs”) over a ten-year period. The theory is that efficiency gaps of that size invite court intervention because there is almost no chance that the gap will disappear through the normal course of politics.
Assuming Professor Jackman’s general analysis is correct, I can perceive no intuitive reason to believe that the likelihood of “sign-flipping” should play such an outsized role in determining when court intervention is appropriate. Plaintiffs’ threshold of -7% is based on the fact that such an efficiency gap is unlikely to disappear (flip signs), but this ignores the fact that the efficiency gap may become much smaller during its natural life even if it does not disappear entirely. For example, a plan could move from an efficiency gap of -8% to -2% in the next election cycle, meaning the map had become almost an even playing field. Such a plan would hardly be a good candidate for court intervention. In fact, we know that in Wisconsin, under the last court-drawn plan, the gap jumped around between -4% and -12% (always favoring Republicans) throughout the 2000s. That is, the gap in the highest year was more than triple the gap in the lowest year. It is thus not difficult to envision a plan having an initial gap of 7 or 8% that would drop down to 2 or 3% purely through natural phenomena. And when we know that a state’s political geography explains at least some portion of any efficiency gap, the entirety of any lingering efficiency gap could be explained through geography rather than partisan gerrymandering. Thus, even if the gap did not disappear entirely, any remaining gap traceable to gerrymandering has been all but eliminated without court intervention. And yet the Plaintiffs’ test would demand that a court intervene to fix a problem that might largely ameliorate itself naturally.
Given the Justices’ reluctance to involve the courts in the review of gerrymandering claims, the sign-flipping metric seems far too easy to meet, since according to Professor Jackman every gap larger than 7% will meet that standard. Instead of gauging the likelihood that any efficiency gap would persist, a more robust test would demand a strong likelihood that a large efficiency gap would persist throughout the life of the plan. That is, a court would ask whether the gerrymandering party has created a map that will ensure a strong likelihood that large, historically significant efficiency gaps will persist—not just that some efficiency gap will persist. If a plaintiff could demonstrate that efficiency gaps larger than 6% or 7% would likely persist throughout a plan’s life, judicial intervention would be more appropriate because the minority party would have much greater difficulty remedying the problem through the political process. Here, however, the evidence is simply that the efficiency gap is unlikely to disappear entirely, without any acknowledgment of the possibility that the gap could be significantly reduced without any court intervention at all.

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Accordingly, assuming the efficiency gap played some role in a gerrymandering test, I would require the plaintiffs to demonstrate a significant likelihood that large efficiency gaps—not just non-zero efficiency gaps—would be a feature of the challenged plan throughout its operative life.
VI. Conclusion The Supreme Court heard this same story in 1986. It was unmoved. In 2004 the
Court rejected a similar claim, and the reasons the Justices cited only twelve years ago apply with equal force now. What made this case different is the Plaintiffs’ claim that they had discovered the holy grail of election law jurisprudence—the long sought after “judicially discernable and manageable standard” by which political gerrymander cases are to be decided. Yet, even the majority has declined Plaintiffs’ request that the efficiency gap standard be adopted as the presumptive test, choosing instead to use it merely as corroborative evidence of its own entrenchment test. Slip Op. at 86. As I have attempted to show above, however, the majority’s entrenchment test offers no improvement over the tests that have already been rejected by the Supreme Court. And the efficiency gap theory on which the Plaintiffs founded their case fatally relies on premises the courts have already rejected, including proportional representation, and it suffers from a number of practical problems as well. Simply put, I do not believe the Supreme Court would direct courts to meddle in a state districting plan when that plan adequately hews to traditional and legitimate districting principles; contains no “gerrymander,” as traditionally understood; and when the plan only modestly extends the map-drawing party’s electoral advantage beyond what would exist naturally. This is particularly true given that the gerrymandering party very likely would have won both elections conducted under the challenged plan even without gerrymandering. Under these circumstances, and given the Justices’ reluctance to review gerrymandering claims, the Plaintiffs’ theory does not persuade me that a majority of the Supreme Court would find an unconstitutional gerrymander in this case. Accordingly, I would find in favor of the Defendants and therefore respectfully dissent.
/s/ WILLIAM C. GRIESBACH District Judge

 
 Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 1 of 7
FULL STATE PLANS

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

EXHIBIT 1

Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 2 of 7
MILWAUKEE, OZAUKEE, WASHINGTON AND WAUKESHA COUNTIES

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 3 of 7
CALUMET, FOND DU LAC, MANITOWOC, AND SHEBOYGAN COUNTY

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 4 of 7
RACINE AND KENOSHA COUNTIES

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 5 of 7
BUFFALO, CHIPPEWA, EAU CLAIRE, JACKSON, LA CROSSE, PEPIN, PIERCE, ST CROIX, TREMPEALEAU COUNTIES

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 6 of 7
ADAMS, COLUMBIA, MARATHON, MARQUETTE, PORTAGE, AND WOOD COUNTIES

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

Case: 3:15-cv-00421-bbc Document #: 1-1 Filed: 07/08/15 Page 7 of 7
BROWN AND MANITOWOC COUNTIES

Prior Plan with 2008 General Election Results

Demonstration Plan with imputed 2012 General Election Results

Current Plan with 2012 General Election Results

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 1 of 58
Analysis of the Efficiency Gaps of Wisconsin's Current Legislative District Plan and Plaintiffs' Demonstration Plan

Kenneth R. Mayer, Ph.D. Department of Political Science University of Wisconsin-Madison
July 3, 2015

(;+,%,7

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 2 of 58

Table of Contents

I. Introduction ..................................................................................................................... 2!

II.!!Qualifications, Publications, Testimony, and Compensation................................................ 3!

III. Opinions

..................................................................................................................... 4!

A. Summary ..................................................................................................................... 4!

B. Measuring Partisanship in Actual and Hypothetical Districting Plans .......................... 5!

1. Step One: A Model of Voting in Assembly Elections ............................................... 8!

a. The Dependent Variable: Ward level Assembly Vote ......................................... 12!

b. Independent Variables: Demographic Data ......................................................... 12!

c. Independent Variables: Measures of Partisanship ............................................... 13!

d. Independent Variables: Incumbency................................................................... 17!

e. Independent Variables: County Effects ............................................................... 18!

f. Estimation and Results ........................................................................................ 19!

g. Out of Sample Forecasting Accuracy ................................................................. 25!

h. Comparison to 2011 Republican Expert Baseline Partisanship Measure ............ 29!

2. Step Two – Predicting Votes in a Demonstration District Plan ............................... 30!

a. Creating a Demonstration District Plan .............................................................. 31!

b. Constitutional and Statutory Requirements ........................................................ 37!

C. Efficiency Gap Calculations........................................................................................ 38!

1. Analysis of Act 43 .................................................................................................... 38!

2. Efficiency Gap Calculations for Act 43 and The Demonstration Plan .................... 43!

D. Conclusions ................................................................................................................. 54!

IV. Sources

................................................................................................................... 56!

1

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 3 of 58
I. Introduction My name is Kenneth Mayer and I currently am a Professor of Political Science at the
University of Wisconsin-Madison, and a faculty affiliate at the Lafollette School of Public Affairs, at the University. I joined the faculty in 1989. I teach courses on American politics, the presidency, Congress, campaign finance, election law, and electoral systems.
I have been retained by counsel representing the plaintiffs in this lawsuit (the "Plaintiffs") to analyze and provide expert opinions. I have been asked to determine whether, in my opinion, it is possible to create a Wisconsin state legislative map that does not result in systemic partisan advantage, by drawing a legislative district plan that has an efficiency gap as close to zero as possible while complying with federal and state requirements at least as well as the plan enacted by the Wisconsin legislature in Act 43.1
I submit this report, which contains the opinions that I intend to give in this matter. I describe my methods for estimating the state Assembly vote in actual and hypothetical state legislative redistricting plans, and for calculating the efficiency gap for Act 43 and for the alternative demonstration plan I drew.
My opinions, which are based on the technical and specialized knowledge that I have gained from my education, training and experience, are premised on commonly used, widely accepted and reliable methods of analysis, the application of the legal requirements of redistricting, and are based on my review and analysis of the following information and materials:
• Redistricting materials available from the Wisconsin legislature at http://legis.wisconsin.gov/gis/data, including Geographic Information System (GIS)
1 The federal requirements are equal population, compliance with Section 2 of the Voting Rights Act, and the ban on racially gerrymandered districts. The state requirements are contiguity, compactness, and respect for political subdivisions (counties, towns, cities, and villages).
2

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files for Act 43 districts, and ward level election data for 2012 • Census Bureau data on population, citizenship, and location of institutionalized
populations as explained below • Election data from the 2013-2014 Wisconsin Blue Book for the 2012 State Assembly
and presidential elections • Election data from the Government Accountability Board, including ward level 2012
election results for State Assembly and presidential elections. • GIS data, including Census population figures, block assignments, and shape files for
Wisconsin, available in the GIS program Maptitude for Redistricting • Files submitted by defendants in Baldus et al. v. Brennan et al. I conducted my analysis using Stata, Excel, R, and Maptitude for Redistricting.
II. Qualifications, Publications, Testimony, and Compensation
I have a Ph.D. in political science from Yale University, where my graduate training included courses in econometrics and statistics. My undergraduate degree is from the University of California, San Diego, where I majored in political science and minored in applied mathematics. My curriculum vitae is attached to this report as Exhibit 1.
All publications that I have authored and published in the past ten years appear in my curriculum vitae, attached as Exhibit 1. Those publications include the following peerreviewed journals: Journal of Politics, American Journal of Political Science, Election Law Journal, Legislative Studies Quarterly, Presidential Studies Quarterly, A m e r i c a n P o l i t i c s R e s e a r c h , Congress and the Presidency, Public Administration Review, and PS: Political Science and Politics. I have also published in law reviews, including the Richmond Law Review, the UCLA Pacific Basin Law Journal, and the University of Utah Law Review. My work on campaign finance has been published in Legislative Studies Quarterly, Regulation,
3

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PS: Political Science and Politics, Richmond Law Review, the Democratic Audit of Australia, and in an edited volume on electoral competitiveness published by the Brookings Institution Press. My research on campaign finance has been cited by the Government Accountability Office, and by legislative research offices in Connecticut and Wisconsin.
My work on election administration has been published in the Election Law Journal, American Journal of Political Science, Public Administration Review, and American Politics Research. I was part of a research group retained as a consultant by the Wisconsin Government Accountability Board to review their compliance with federal mandates and reporting systems, and to survey local election officials throughout the state. I serve on the Steering Committee of the Wisconsin Elections Research Center, a unit with the UW-Madison College of Letters and Science. In 2012 I was retained by the U.S. Department of Justice to analyze data and methods regarding Florida’s efforts to identify and remove claimed ineligible noncitizens from the statewide file of registered voters.
In the past eight years, I have testified as an expert witness in trial or deposition in the following cases: Baldus et al. v. Brennan et al., 849 F. Supp. 2d 840 (E.D. Wis. 2012); Milwaukee Branch of the NAACP et al. v. Walker et al., 2014 WI 98, 357 Wis. 2d 469, 851 N.W. 2d 262; McComish e t a l . v. Brewer et al., No.CV- 08-1550, 2010 WL 2292213 (D. Ariz. June 23, 2010); and Kenosha County v. City of Kenosha, No. 11-CV-1813 (Kenosha County Circuit Court, Kenosha, WI, 2011).
I am being compensated at a rate of $300 per hour.
III. Opinions A. Summary
My opinions may be summarized as follows. 4

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• Using a model that estimates baseline ward-level partisanship, I conclude that the redistricting plan enacted by Act 43 is significantly biased against Democrats, with an efficiency gap of 11.69%. The plan achieves this via the use of classic “packing and cracking” gerrymandering techniques: concentrating Democratic voters into districts where they have overwhelming majorities (packing), and drawing other districts so that Democrats constitute partisan minorities well below 50% and unlikely to win legislative seats (cracking). In doing so, Republicans guarantee a strong majority of legislative seats, even if they obtain well below 50% of the statewide legislative vote. In 2012, Republicans won 61% of State Assembly seats (60 of 99) while achieving only 46.5% of the statewide vote (as measured by the presidential vote, a common proxy for statewide partisanship).
• Using the same measure of partisan strength that the Wisconsin state legislature used in assessing partisan impact of proposed districts in Act 43, Act 43 has an efficiency gap of 12.36%.
• I created a demonstration redistricting plan (the “Demonstration Plan”) that is equivalent to Act 43 on population deviation, has fewer political subdivision splits, and has better compactness scores, with a much lower efficiency gap score of 2.20%. This is less than one-fifth of the Act 43 efficiency gap.
• The Demonstration Plan shows that the partisan advantage secured in Act 43 was in no sense required in order to adhere to the constitutional and statutory requirements of legislative redistricting.
B. Measuring Partisanship in Actual and Hypothetical Districting Plans
The efficiency gap is a measure of “wasted votes” that fall into two categories: those
votes cast for a losing candidate in a district (lost votes), and votes cast for the winning candidate
above what is necessary to win (surplus votes). In an existing set of districts, the calculation is
based on the actual vote in each district, with adjustments for uncontested races (Stephanopoulos
and McGhee 2015). Larger imbalances in the number of wasted votes signify a degree of
partisan unfairness against the political party with more wasted votes.
Calculating the efficiency gap in the Demonstration Plan requires estimating what the
underlying partisan vote would be in each newly drawn (and hypothetical) district. The gap
cannot be estimated by simply rearranging the votes cast in actual Assembly contests into a new
5

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district configuration, as the votes cast for specific Assembly candidates in each district are a function of the electoral environment in that district and whether a race is even contested by both parties. A large literature has developed around the problem of estimating the likely election results in redistricting plan alternatives and calculating summary statistics that characterize existing and hypothetical plans (Gelman and King 1994; Cain 1985).
In most applications, the partisan consequences of a redistricting plan are expressed in terms of the effect on future elections: using prior election results to predict outcomes in subsequent election cycles, or estimating the statewide vote swing required to significantly change the partisan composition of the legislature from one election to the next (Gelman and King 1990; Cain 1985). The results are typically expressed as the estimated two-party vote percentages in each new district (Gelman and King 1994), which are sufficient to forecast who will win an election and calculate swing ratios and seats-votes curves.2
My aim is different. Instead of estimating future election results for an existing or proposed hypothetical plan, my goal was to determine whether it was possible to draw a district plan following the 2010 Census that minimized the efficiency gap while maintaining strict fidelity to the federal and state constitutional requirements of population equality, contiguity, compactness, respect for political subdivisions, and compliance with the Voting Rights Act. The efficiency gap is a function of the number of wasted votes, and therefore requires a model that generates predictions of how many votes would have been cast for Democratic and Republican candidates in 2012 in a different district configuration, rather than simply vote
2 Winners are determined by which candidate receives >50% of the vote in a two party race. Seats votes curves depend on the number of seats a party wins in an election (determined by the number of races in which that party received >50% of the vote) and the statewide vote totals in legislative races or some other set of statewide races
6

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percentages. My methods provide a way of estimating what the 2012 Assembly election results would have been in such a Demonstration Plan.
Given appropriate data, it is possible to generate reliable and accurate vote count predictions that can be aggregated to any district boundaries. What is required is a set of independent variables that accurately predict the vote in state Assembly elections but which are to the greatest extent possible exogenous to that vote, meaning that the independent variables have underlying values that do not themselves depend on the district vote. If this condition is met, we can estimate what the district vote would have been in an alternative district configuration, since the independent variables do not depend on any particular district configuration. This is not an issue in models that predict future election results, since by definition variables measured today are exogenous to outcomes that occur several years in the future. Because I use one set of election results (the 2012 presidential vote) as part of a model that predicts another set of contemporaneous election results (the 2012 Assembly vote), it is an important but manageable methodological issue.
My method consists of two steps. The first is the construction of a regression model that predicts the 2012 Assembly vote as a function of partisanship, population, demographics, incumbency, and fixed geographic boundaries in Wisconsin’s roughly 6,600 wards. In doing so, I establish the empirical relationships between a set of exogenous variables independent of any specific district configurations and the actual Assembly vote in existing wards. In the second step, I use this model to generate a forecast of Assembly vote preferences as a function of these independent variables, and disaggregate this forecast to the Census block level. Using these block level estimates of the Assembly vote, I draw a Demonstration Plan and estimate the Assembly vote and efficiency gap in the resulting districts.
7

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1. Step One: A Model of Voting in Assembly Elections Estimating the Assembly vote in alternative district configurations requires a model that can generate accurate estimates of the underlying partisanship of a district. As I noted above, the most common models regress the observed Assembly vote on measures of district partisan preferences and other variables known to affect the vote, and generate a predicted value of the vote based on the values of the independent variables. Changing district boundaries will change the values of the independent variables as new voters are moved into the district and others moved out, which in turn allows forecasts of what the vote would be in those new districts. What I am interested in estimating is how many votes will be cast for Democratic and Republican candidates in each district in a demonstration district plan. This involves a different set of variables than is typical in models that evaluate the percentage of votes each party receives, since I require a measure that accounts for both differences in ward populations and variation in turnout. I use ward level vote totals as the unit of analysis to increase the number of observations available and allow for more precise estimates. Wisconsin’s 99 Assembly districts are composed of roughly 6,600 wards, with districts containing between 24 and 153 wards. While the ideal population of an Assembly district is 57,444, wards have an average population of approximately 869 people, and are far more demographically homogeneous.3
3 Legislative Technology Services Bureau data show 6,592 wards in Wisconsin, of which 66 are unpopulated and another 50 have fewer than 10 people. The average populated ward contains 869 people. Wisconsin statutes 5.15 (2)(b) specifies a permissible population range for wards of 300-4,000, depending on a municipality’s size, with exceptions allowed in certain circumstances (for example, when single blocks exceed a permitted ward size, or when a municipality is divided into multiple counties or school districts, contains islands, or has wards that must be altered to match district boundaries).
8

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There are four reasons analysis at the ward level is preferable to analysis at the district level. The first is a matter of sheer numbers: the precision of coefficient estimates, forecasting accuracy, and overall statistical power are all strongly related to the number of observations (or sample size). An n of 6,600 is far preferable to an n of 99, all other things being equal.4
The second is the amount of information lost when smaller units are ignored. From a statistical standpoint, using district data when ward data are available imposes the assumption that the values of all of the ward-level variables are equal to the district level variables, when we know this to be untrue immediately upon inspection. Assembly district 1, for example, has 110 populated wards, ranging in population between one and 999 people. In 2012, 73.4% of the voting age population cast ballots in the Assembly contest, and the victorious Republican Assembly candidate received 51.3% of the vote. At the ward level, however, there was considerable variation, with the Republican vote percentage ranging from a low of 38.4% to a high of 75%, and turnout ranging from 50% to over 90%. Ignoring this information and variation will lead to less accurate estimates and forecasts.
Third, in the second step of the analysis I disaggregate ward level estimates to the block level. Minimizing the differences in size and maximizing the homogeneity across that disaggregation will lead to more accurate block level estimates.
And fourth, each Census block is assigned to a single ward,5 with a unique numerical code that identifies the block’s location.6 These codes allow for disaggregating ward level data
4 The larger n also means that OLS is an accurate method of estimating the underlying relationships, whereas more complicated techniques may be required with smaller sample sizes (Afshartous and de Leeuw 2005). 5 The Census Bureau uses the term “Voting Tabulation District” (VTD). Most states call VTDs precincts. In Wisconsin these units are called “wards.” 6 These are known as FIPS (Federal Information Processing Standard) codes. http://www.census.gov/geo/reference/ansi.html.
9

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into blocks and generating inputs for the redistricting software I use in the second step of my

analysis.

I use two main sources of data. The first is redistricting data prepared by the Wisconsin

Legislative Technology Services Bureau (LTSB), which consists of spreadsheets with ward level

Census population data and election results, as well as ward and district shape files containing this data that can be imported into GIS software.7 The second source is official election results

published by the Government Accountability Board (GAB), both online and in the 2013 edition

of the Wisconsin Blue Book.

In my experience working with large data sets, and especially when dealing with complex

GIS data, I have found data errors to be a common problem. I assessed the reliability of the

LTSB data by checking it against the GAB election data, and found numerous errors that required correction, as well some errors that could not be corrected.8 I describe these errors and

my corrections in greater detail in an annex to this report. All subsequent references to ward

level vote or population counts uses these corrected vote totals.

The regression model used to predict Assembly vote totals takes the standard form of

Yi = α + βXi + εi,

where Yi is the dependent variable in ward i, Xi is a set of independent variables in ward i, and α,

β, and εi are parameters estimated as a function of the variables. The full model is:

!""#$%&'! !"#$ !

!

=

!!!

+ ! !!!"#$%!!"#!

+

!!!"#$%!!"#!

+

!!!!"#$%&"'!!"#!

7 The files are available at http://legis.wisconsin.gov/gis/data. The 2012 election results are in the file Wards_111312_ED_110612.xlsx. 8 As I note in the Annex, I was not able to allocate 0.21% of the vote in 2012 because of inconsistencies between electoral data reported by the GAB and the geographic redistricting data reported by the LTSB. This small number of votes will not change any of my analysis or conclusions, and such errors are inevitable when working with large data sets.
10

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 12 of 58

Where

+!!!!"#!$"%&##$'%(&%')(*!)!%"#$! + ! !!!!"#!$"%&##$'%(&%')()*!*!"#$!

+!!!!!""##$$%%&&''(")(%! + !!!!!""##$$%%&&'(')"*(! + !

!" !!!

!! !"#$%&!

+ ! !!

Assembly Vote Total VEP

Number of votes cast for the Republican or Democratic candidate in the 2012 Assembly election in ward i. I estimate separate equations for the Democratic and Republican candidates
Voting eligible population in ward i, as measured in the 2010 Census

Black VEP

Voting eligible Black population in ward i

Hispanic VEP

Voting eligible Hispanic population in ward i

Democratic

Number of votes cast for Barack Obama in the 2012

Presidential Vote presidential election in ward i

Republican

Number of votes cast for Mitt Romney in the 2012

Presidential Vote presidential election in ward i

Democratic Incumbent

1 if the Assembly election in ward i has a Democratic incumbent, 0 otherwise, multiplied by the VEP in ward i

Republican Incumbent

1 if the Assembly election in ward i has a Republican incumbent, 0 otherwise, multiplied by the VEP in ward i

County

Set of fixed effects dummy variables for each county. Dunn County is the excluded value.9

The model explains the Assembly vote as a function of four types of variables: district

demographics, underlying partisanship, incumbency, and fixed geographic effects.

9 When using dummy variables (which take binary values of either 0 or 1) to measure effects in units or conditions across the full population, one unit must be excluded, as otherwise perfect collinearity prevents estimation (Greene 1990, 240-241).
11

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 13 of 58
a. The Dependent Variable: Ward level Assembly Vote The key quantity of interest in this analysis is the number of Assembly votes for each
party, and it is the dependent variable in the model, using LTSB ward data that I corrected using
the process outlined above. Since I am interested in estimating actual vote counts and not the
percentage of the two party vote, I estimate separate equations for votes received by each party.10
Estimating vote counts provides more accuracy than vote percentages, as it controls for
variations in turnout across districts.11
b. Independent Variables: Demographic Data The first three independent variables - Total Voting Age Population (VEP), Black VEP,
and Hispanic VEP - are the 2010 Census voting age population counts by ward, adjusted to
remove ineligible voters.12 Total VEP constitutes a baseline of the size of the voting population,
reflecting the fact that the number of votes will be a function of total population. Black and
Hispanic VEP are additional controls that reflect the partisan tendencies of key subpopulations as
10 The reliance on actual numbers of voters eliminates the Modified Areal Unit Problem, which results when group statistics such as vote percentages or demographic fractions are aggregated into different geographic units levels. All of my variables and measures are scale invariant (see King 1996). 11 The number of votes cast in Assembly races varies considerably even in in contested races. In 2012, the number of major party votes cast in the highest turnout Assembly election in the 23rd Assembly district, 36,205, was almost twice the number cast in the 90th Assembly district, 18,735, and almost 5 times the number cast in the uncontested 8th district, 7,869 (numbers taken from GAB figures). 12 The voting eligible population (VEP) adjusts the voting age population by removing adults who are not eligible to vote. In Wisconsin, the two largest categories of ineligible adults that can be identified geographically are noncitizens and adults in prison for felonies. Noncitizens were removed using the 2008-2012 5 year American Community Survey county level noncitizen estimates (available at http://www.census.gov/acs/www/data_documentation/2012_release/. Institutionalized prison populations were identified using Census Bureau “Advanced Group Quarters” files for Wisconsin, available at .http://www2.census.gov/census_2010/02Advance_Group_Quarters/, and described in http://www.census.gov/newsroom/releases/archives/2010_census/cb11-tps13.html. There are individuals on probation or extended supervision who are also ineligible to vote. I was not able to systematically identify their locations, but they are dispersed enough that they will not have a material effect on my resulting estimates or conclusions. All regression results and district estimates are materially unchanged when the unadjusted data are used.
12

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well as turnout likelihood. Traditionally, both African American and Hispanic populations vote at lower rates that whites, although in 2012 African American turnout was comparable to white turnout. Hispanic populations vote at lower rates than other demographic groups, in part because of a higher noncitizen population, but also because of socioeconomic factors known to reduce turnout.
I expect weak relationships for these measures because of the importance of the next set of variables, which reflect actual voting in the 2012 presidential election.
c. Independent Variables: Measures of Partisanship The next two variables are the number of votes cast for the Democratic and Republican candidates for president in the 2012 election. The presidential vote is widely used as an exogenous measure of district level partisanship (Ansolabehere, Snyder and Stewart 2000, 2001; Gelman and King 1994; Glazier, Grofman, and Robbins 1987; McDonald 2014; Jacobson 2003, 2009), and it correlates very strongly with other more complex measures of partisan strength (Levendusky, Pope, and Jackman 2008). The presidential vote is, not surprisingly, an extremely strong predictor of the legislative vote. If we know how many votes were cast for the Republican presidential candidate in a ward we will have a very good idea, subject to some conditions, of how many votes will be cast for the Republican candidate in the legislative election in that ward. While not everyone who votes for the Republican presidential candidate will vote for the Republican state legislative candidate, nearly all will, and we can precisely quantify the nature of that relationship. The strength of the relationship between presidential and Assembly votes is clear in Figures 1 through 3, which plot the total Assembly vote, Republican Assembly vote, and Democratic Assembly vote in 2012 by the respective presidential vote in each contested ward (where voters have an opportunity to express a preference for either party in the legislative race).
13

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Figure 1 shows that the number of presidential votes cast in a ward is very strongly related to the number of Assembly votes, although almost all wards show a “roll off” as some presidential voters opt not to mark the ballot in the assembly race (the reference line shows where the number of presidential and Assembly votes would be equal). Such drop-offs are ubiquitous in down-ticket races, because voters have less information about lower-level candidates and often have weaker or nonexistent preferences (Wattenberg, McAllister, and Salvanto 2000).
The graphs for the Republican (Figure 2) and Democratic (Figure 3) votes show more variance around this reference line, indicating that some voters are splitting their tickets by voting for a presidential candidate of one party and an Assembly candidate of the other. Nevertheless, the relationship between the number the Republican and Democratic presidential and Assembly votes is apparent. Taken together, these figures indicate that the presidential vote is a very strong predictor of the Assembly vote.
An important property of the presidential vote as an independent variable in this model is that it can be treated as exogenous to (i.e., not caused by) the legislative vote. Exogeneity can be described in two ways. The first is in causal terms. Most voters will vote for the same party for the president and state Assembly, as the above graphs show. These voters are consistent because they are Democrats or Republicans, and partisanship is the factor that explains both vote choices. Other voters will make their Assembly choice based on their presidential vote, because they use party labels as a cue when voting in a down-ticket race. “[P]arties are generally known by the presidential candidates they nominate, and candidates for state legislative races are a good deal less well known to voters than the congressional candidates who ride presidential coattails” (Campbell 1986, 46). Few voters, if any at all, will decide on an Assembly candidate first and
16

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then vote for president on the basis of their Assembly vote preference. The causal arrow runs from the presidential vote to the Assembly vote, not from the Assembly vote to the presidential vote. This is why we speak of presidential coattails affecting legislative races, and not the other way around (Campbell 1986; Jacobson 2009).
The second reason why the presidential vote is exogenous to the Assembly vote is that it is not affected by local district-level conditions such as incumbency, spending, or candidate quality (Abramowitz, Alexander, and Gunning 2006, 87). The broader factors that influence the presidential vote, and the presidential candidates themselves, are the same in every Assembly district. The presidential vote is affected by underlying partisanship, national conditions and the characteristics of the presidential candidates, factors that are constant whether that vote is aggregated at the state, district, or ward levels.
To put it another way, a change in the statewide presidential vote is virtually certain to affect state legislative election results. Adding or subtracting hundreds of thousands of Democrats or Republicans will alter voting patterns at the district level. However, nobody would expect that the statewide presidential result will be affected by the configuration of legislative districts. The statewide presidential vote would be the same, no matter how the district lines are drawn. Consequently, we can consider the presidential vote as exogenous to, but a causal factor of, the state legislative vote.
d. Independent Variables: Incumbency The incumbency advantage is perhaps the most well-known feature of contemporary legislative elections (Jacobson 2009, 30-35). Legislative incumbents rarely lose, and usually win by large margins. All other things being equal, an incumbent will get more votes than a non-
17

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 19 of 58
incumbent. The causes of this advantage are less important in this context than its magnitude.13 The model takes into account the incumbency advantage by noting whether an incumbent is running in an Assembly district.
Incumbency effects are measured with a dummy variable equal to 1 when a candidate is an incumbent, and 0 otherwise,14 multiplied by the ward voting eligible population to create an interactive variable that accounts for differences in size from one ward to the next. Since the dependent variable is an actual vote count, the value of incumbency – in terms of how many additional votes incumbents receive – will vary with the number of voters who reside in a ward.
e. Independent Variables: County Effects The last set of variables estimate the effect that county geography has on the Assembly vote. Some counties in Wisconsin are heavily Republican (Ozaukee, Washington, Waukesha) and some heavily Democratic (Dane, Douglas, Milwaukee). It is possible that a voters’ county of residence could have an effect on the vote choice, whether because of sorting, socialization or assimilation, or other unobserved effects. Including dummy variables for each county will capture these effects if they exist. There are 71 county variables (excluding Dunn County) set to 1 when a ward is located in that county, 0 otherwise.
13 In the political science literature, the incumbency advantage has been attributed to the political skills and campaign experience of officeholders, higher name recognition, fundraising advantages, constituency service, redistricting, and the ability to scare off quality challengers. 14 Incumbents were identified using 2012 election data in the 2013 Wisconsin Blue Book. In the 43rd and 61st Assembly districts two incumbents were paired against each other; these districts were coded as having no incumbent, since the advantage cancels. In the 7th Assembly district, the Democratic incumbent lost in the primary election and ran a write in campaign in the general election. Because the incumbent was not on the ballot, this district is also coded as having no incumbent.
18

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f. Estimation and Results Using Stata IC 11.2 I performed ordinary least squares regression, using 2012 ward data from contested districts where both Republican and Democratic candidates were on the ballot.15 Analyzing contested races solves the problem of trying to estimate partisan support in a district where voters have no opportunity to express their support for one side (Gelman and King 1994). The fact that Republicans registered 0 Assembly votes in the 78th district (Madison), and Democrats 0 votes in the 58th district (Washington County), does not mean there are no Republicans in the 78th or Democrats in the 58th districts, or that a Republican or Democratic candidate would receive zero votes if one were on the ballot. Using uncontested races in this initial analysis would produce inaccurate estimates of party strength in those districts. The results for the Democratic and Republic regression models appear in Table 1.16 Most variables show the expected effects, particularly the very strong impact of the presidential vote. The r2 values are extremely high, and the standard errors of the regression models (Root MSE) are low. The model is also extremely accurate: when compared to actual ward vote, the model’s predictions of the Republican ward totals are within 16 votes, and the Democratic predictions are within 18 votes. Figure 4 shows the overall accuracy of the model by plotting the predicted ward level vote totals by the actual vote totals in each ward. Predictions for both Democrats and
15 This major-party contested definition is standard. It counts as uncontested four districts where one major party candidate was not on the ballot but received votes as a write in (districts 7, 17, 48, and 57), and one district (district 95) where one major party candidate was on the ballot but did not campaign and received only 50 votes (or 0.24%). This is consistent with methods used in the literature, which often uses a 95% threshold for the winning candidate as a standard (Gelman and King 1990, 274). 16 Standard errors were adjusted to reflect the aggregation (or clustering) of wards into districts. The full set of variables is included in an appendix to this report.
19

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 21 of 58 Republicans are grouped tightly around the 45-degree line where predicted and actual values would be equal.
Figure 5 shows the accuracy of the model at the district level, which is the more relevant quantity for real-world applicability. I calculated district level results by aggregating wards into the associated Assembly district, using LTSB assignments. The district-level estimates are very close to the actual vote totals, and the average absolute error is 356 votes for Democratic candidates and 344 votes for Republican candidates.
20

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Table 1 Regression Results: 2012 Assembly Votes, Contested Districts
County fixed effect variables not shown,

!

Independent!Variable!

Dependent! Variable!

Assembly! Republican!
Votes!

Assembly! Democratic!
Votes!

Total!Vot! ing! Eligible! Population!

! 0.009! (.0070)!

Black!Voting! Eligible! Population!

A0.026! (.0215)!

Hispanic!Voting! eligible! Population!

A0.0083! (.0321)!

Democratic! Presidential! Votes!

0.0072! (.0173)!

Republican! Presidential! Votes!

0.946***! (.0086)!

! A0.008! (.0122)!
!
A0.021! (.044)!
!
A0.149**! (.05)! !
0.931***! (.028)! !
0.013! (.013)!
!

Democratic! Assembly! Incumbent!

A0.021***! (.006)!

0.028***! (.007)! !

Republican! Assembly! Incumbent!
Constant!

0.011**! (.0042)!
A0.92! (7.52)!

A0.014**! (.005)! !
9.8! (5.4)!

!

!

N!

5,282!

5,282!

!

2!
r

.9903!

.9843!

Root!MS!Error!

15.8!

17.7!

Robust!standard!errors!clustered!by!Assembly! District!in!parentheses.!! *p<.05,!**p<0.01,!***p<0.001!

21

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Predicted!Assembly!Vote!

Figure!4:!Ward!Level!Predicted!vs.!Actual!Assembly!Vote!A!2012!

1,400!

Both!ParYes,!Contested!Districts!

1,200!

1,000!

800!

600!
Republican!
400!
DemocraYc!
200!

0!

0!

200!

400!

600!

800! 1,000! 1,200! 1,400!

Actual!Assembly!Vote!

22

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Predicted!Assembly!Vote!

30,000!

Figure!5:!Predicted!vs.!Actual!District!!Assembly!Vote!A!2012! Both!ParYes,!Contested!Districts!

25,000!

20,000!

15,000! 10,000!
5,000!

Republican! DemocraYc!

0!

0!

5,000!

10,000!

15,000!

20,000!

25,000!

30,000!

Actual!Assembly!Vote!

As important as the prediction of actual district vote totals is the model’s ability to accurately identify the winner, as the efficiency gap calculation is sensitive to the party of the winners and losers.17 The accuracy of the model is shown in Table 2, which gives the actual and predicted vote percentages of the two-party vote for Republican candidates in contested districts.18

17 All of the votes for a losing candidate are defined as wasted, whereas only those votes in excess of the number required to win are wasted for the winner. 18 The vote percentages were calculated using the actual and predicted vote totals.
23

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Table!2!A!Predicted!vs.!Actual!Vote!Percentages,! Contested!Districts!

Actual! Predicted!

Assembly!

Correct!

GOP!Vote! GOP!Vote!

District!

Winner?!

%!

%!

Error!

1!

51.3%! 52.3%!

Y!

1.0%!

2!

58.7%! 58.8%!

Y!

0.1%!

3!

60.4%! 58.6%!

Y!

A1.8%!

4!

55.7%! 54.6%!

Y!

A1.0%!

5!

55.9%! 57.6%!

Y!

1.7%!

6!

59.5%! 59.9%!

Y!

0.4%!

13!

60.6%! 60.4%!

Y!

A0.2%!

14!

59.1%! 60.7%!

Y!

1.6%!

15!

58.3%! 57.1%!

Y!

A1.2%!

20!

42.4%! 40.9%!

Y!

A1.5%!

21!

59.3%! 56.9%!

Y!

A2.5%!

23!

62.3%! 61.8%!

Y!

A0.5%!

24!

62.4%! 61.0%!

Y!

A1.4%!

25!

57.7%! 57.0%!

Y!

A0.7%!

26!

51.3%! 55.1%!

Y!

3.8%!

27!

57.8%! 54.4%!

Y!

A3.5%!

28!

56.2%! 56.5%!

Y!

0.3%!

29!

55.9%! 55.2%!

Y!

A0.7%!

30!

55.8%! 56.5%!

Y!

0.7%!

31!

56.5%! 55.9%!

Y!

A0.7%!

32!

59.1%! 59.7%!

Y!

0.6%!

33!

64.9%! 63.8%!

Y!

A1.0%!

34!

61.3%! 60.9%!

Y!

A0.4%!

35!

56.0%! 55.9%!

Y!

A0.1%!

36!

59.0%! 60.0%!

Y!

1.0%!

37!

54.3%! 56.0%!

Y!

1.7%!

38!

60.0%! 61.9%!

Y!

1.9%!

39!

60.4%! 60.0%!

Y!

A0.4%!

41!

58.0%! 57.4%!

Y!

A0.5%!

42!

56.6%! 54.8%!

Y!

A1.8%!

43!

42.3%! 42.9%!

Y!

0.7%!

44!

38.4%! 40.1%!

Y!

1.7%!

45!

36.1%! 35.2%!

Y!

A1.0%!

46!

35.2%! 34.5%!

Y!

A0.7%!

47!

29.0%! 30.2%!

Y!

1.1%!

49!

54.4%! 54.6%!

Y!

0.3%!

50!

51.7%! 51.8%!

Y!

0.1%!

51!

51.9%! 49.9%!

N!

A2.0%!

52!

60.7%! 60.1%!

Y!

A0.6%!

53!

60.1%! 62.9%!

Y!

2.8%!

54!

39.8%! 42.0%!

Y!

2.3%!

55!

65.2%! 59.2%!

Y!

A6.1%!

56!

58.3%! 59.7%!

Y!

1.3%!

60!

71.2%! 72.6%!

Y!

1.4%!

61!

55.7%! 55.6%!

Y!

A0.1%!

62!

53.1%! 53.9%!

Y!

0.8%!

63!

58.4%! 57.7%!

Y!

A0.6%!

24

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67!

53.3%! 53.5%!

Y!

0.2%!

68!

52.4%! 50.7%!

Y!

A1.8%!

69!

61.2%! 58.5%!

Y!

A2.7%!

70!

49.7%! 50.1%!

N!

0.4%!

71!

39.0%! 39.3%!

Y!

0.2%!

72!

50.2%! 51.3%!

Y!

1.1%!

74!

41.0%! 41.1%!

Y!

0.1%!

75!

48.9%! 49.2%!

Y!

0.2%!

80!

36.1%! 35.3%!

Y!

A0.8%!

81!

38.1%! 39.6%!

Y!

1.4%!

82!

60.3%! 61.6%!

Y!

1.4%!

83!

69.8%! 71.6%!

Y!

1.9%!

84!

62.8%! 61.8%!

Y!

A1.0%!

85!

48.2%! 48.7%!

Y!

0.5%!

86!

55.7%! 56.1%!

Y!

0.4%!

87!

58.6%! 58.3%!

Y!

A0.3%!

88!

52.5%! 54.1%!

Y!

1.7%!

89!

59.1%! 59.2%!

Y!

0.1%!

90!

39.6%! 37.7%!

Y!

A1.9%!

93!

50.8%! 52.0%!

Y!

1.2%!

94!

39.4%! 39.4%!

Y!

0.0%!

96!

59.6%! 59.7%!

Y!

0.1%!

97!

64.7%! 64.4%!

Y!

A0.3%!

98!

70.5%! 70.0%!

Y!

A0.5%!

99!

76.3%! 77.0%!

Y!

0.7%!

The regression model identifies the correct winner in 70 of 72 districts (97.2%); that is, it accurately identifies the candidate who received the most votes. In the two misclassified races, the Republican candidates received 51.9% and 49.7% of the vote. The average absolute error in the vote margin is 1.49%.
g. Out of Sample Forecasting Accuracy These results, which compare predicted election results to the actual election results, demonstrate that the model is very accurate. A harder test involves the accuracy of predictions using data not in the sample – that is, applying the model to data and election results that are different from the data used to estimate the model. To test the model’s out of sample accuracy, I reran the model 72 times (once for every contested district) excluding every ward in one single
25

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contested district each time,19 and then used the results of that estimation to predict the vote totals in wards in the excluded district using the independent variable values for those wards. For example, in the first run I excluded all wards in Assembly district 2 (see footnote 20), and estimated the model using data from the other seventy one contested districts. I then used the results to predict the vote totals in the 2nd district, and compared the prediction to the actual vote totals. Since we know the actual election results in excluded districts, this exercise is a “hard test” of the model’s general predictive ability.
Figure 6 and Table 3 show the results for the 60 contested districts in which the full model could be estimated.20 The average district forecast error of the Republican vote percentage increased slightly, to 2.1%, but the out of sample forecasts identified the correct winner in 59 out of 60 races (98.3%). In Figure 6, which plots the actual versus predicted vote totals, the points are not grouped as tightly around the 45-degree line as they are in the full model predictions (Figure 5), but still show a very high degree of accuracy.

Table!3!AOut!of!Sample!Predicted!!!vs.!Actual!Vote! Percentages,!Contested!Districts!

Actual! Predicted!

Assembly!

Correct!

GOP!Vote! GOP!Vote!

District!

Winner?!

%!

%!

2!

58.7%! 59.0%!

Y!

3!

60.4%! 57.5%!

Y!

4!

55.7%! 54.3%!

Y!

5!

55.9%! 58.9%!

Y!

13!

60.6%! 60.4%!

Y!

Error!
0.3%! A2.9%! A1.3%! 2.9%! A0.2%!

19 Uncontested districts were not included in the analysis for reasons specified in section B(1)(f) above. 20 In twelve districts (districts 1, 6, 34, 35, 36, 49, 68, 74, 75, 93, 94 and 96), at least one county was entirely contained in a single district, making it impossible to estimate the fixed effect coefficient value for that county. Consequently, when the out-of-sample predictions were calculated, a variable was missing. An accurate test involves districts for which it was possible to estimate the full model.
26

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 28 of 58

14!

59.1%! 61.0%!

Y!

1.8%!

15!

58.3%! 56.7%!

Y!

A1.6%!

20!

42.4%! 39.9%!

Y!

A2.5%!

21!

59.3%! 56.3%!

Y!

A3.1%!

23!

62.3%! 61.4%!

Y!

A0.9%!

24!

62.4%! 60.2%!

Y!

A2.3%!

25!

57.7%! 55.7%!

Y!

A2.0%!

26!

51.3%! 58.6%!

Y!

7.3%!

27!

57.8%! 50.3%!

Y!

A7.5%!

28!

56.2%! 55.1%!

Y!

A1.2%!

29!

55.9%! 54.6%!

Y!

A1.3%!

30!

55.8%! 57.2%!

Y!

1.4%!

31!

56.5%! 55.7%!

Y!

A0.9%!

32!

59.1%! 60.2%!

Y!

1.1%!

33!

64.9%! 63.0%!

Y!

A1.9%!

37!

54.3%! 56.3%!

Y!

2.0%!

38!

60.0%! 62.3%!

Y!

2.3%!

39!

60.4%! 59.0%!

Y!

A1.5%!

41!

58.0%! 56.2%!

Y!

A1.7%!

42!

56.6%! 51.8%!

Y!

A4.8%!

43!

42.3%! 43.3%!

Y!

1.1%!

44!

38.4%! 40.8%!

Y!

2.5%!

45!

36.1%! 34.1%!

Y!

A2.0%!

46!

35.2%! 34.1%!

Y!

A1.0%!

47!

29.0%! 30.9%!

Y!

1.8%!

50!

51.7%! 53.1%!

Y!

1.4%!

51!

51.9%! 48.7%!

N!

A3.2%!

52!

60.7%! 59.4%!

Y!

A1.3%!

53!

60.1%! 64.4%!

Y!

4.4%!

54!

39.8%! 43.8%!

Y!

4.0%!

55!

65.2%! 56.0%!

Y!

A9.3%!

56!

58.3%! 59.9%!

Y!

1.6%!

60!

71.2%! 73.9%!

Y!

2.8%!

61!

55.7%! 54.9%!

Y!

A0.8%!

62!

53.1%! 54.5%!

Y!

1.4%!

63!

58.4%! 57.1%!

Y!

A1.3%!

67!

53.3%! 54.7%!

Y!

1.4%!

69!

61.2%! 57.2%!

Y!

A4.0%!

70!

49.7%! 49.7%!

Y!

0.0%!

71!

39.0%! 40.1%!

Y!

1.1%!

72!

50.2%! 53.0%!

Y!

2.8%!

80!

36.1%! 35.1%!

Y!

A1.0%!

81!

38.1%! 40.8%!

Y!

2.6%!

27

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 29 of 58

82!

60.3%! 62.0%!

Y!

1.8%!

83!

69.8%! 71.8%!

Y!

2.0%!

84!

62.8%! 61.7%!

Y!

A1.1%!

85!

48.2%! 49.0%!

Y!

0.8%!

86!

55.7%! 56.9%!

Y!

1.2%!

87!

58.6%! 54.6%!

Y!

A3.9%!

88!

52.5%! 54.6%!

Y!

2.1%!

89!

59.1%! 59.0%!

Y!

A0.1%!

90!

39.6%! 36.9%!

Y!

A2.7%!

97!

64.7%! 64.2%!

Y!

A0.5%!

98!

70.5%! 69.9%!

Y!

A0.5%!

99!

76.3%! 77.3%!

Y!

1.0%!

30,000!

Figure!6:!Out!of!Sample!Results! Predicted!vs.!Actual!District!Assembly!Vote!Both!ParYes,!Contested!
Districts!

25,000!

20,000!

15,000! 10,000!

Republican! DemocraYc!

5,000!

0!

0!

5,000!

10,000!

15,000!

20,000!

25,000!

30,000!

Actual!Assembly!Vote!

Predicted!Assembly!Vote!

The model does an excellent job accurately forecasting vote totals and election results, and provides a solid foundation for estimating hypothetical vote totals in an alternative district plan.
28

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 30 of 58
h. Comparison to 2011 Republican Expert Baseline Partisanship Measure The method I have outlined here is a standard technique in the analysis of redistricting plans: creating a baseline measure of partisanship that is independent of a particular district configuration, and applying those estimates to alternative hypothetical district plans. Indeed, in preparing the district plan that would become Act 43, the state legislature went through the same analytical exercise, generating partisanship measures to forecast what the election results would be in the districts enacted in that plan. The expert that the legislative Republicans relied on to conduct that analysis, Dr. Ronald Keith Gaddie, described the process and method as “an effort to create a partisan normal vote measure or a partisan baselining measure to use to apply to different districts to ascertain their political tendency.”21 The results of his regression analysis of the districts in Act 43 are in a spreadsheet used to evaluate the plan entitled “Final Map” which contains open seat baseline partisan estimates for existing and new Assembly districts. Figure 7 compares Dr. Gaddie’s open-seat baseline partisanship measure for the Act 43 districts with the equivalent results of my model, excluding the 8th and 9th Assembly districts which were redrawn by the Federal Court and are therefore not comparable. Gaddie’s partisan baseline measure is plotted on the x-axis, and my measure on the y-axis. My measure is the expected partisan performance in actual Act 43 districts, with incumbency effects removed.22 The two measures are strongly related, indicating that both are capturing stable features of partisanship in Wisconsin. The line is a bivariate regression line produced by using Dr. Gaddie’s partisanship estimate as the independent variable and my measure as the dependent variable.
21 Deposition, January 20, 2012, p. 196. 22 I generated this data by calculating predicted values for my model in Act 43 districts, setting all incumbency variables to zero.
29

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 31 of 58

The r-squared for this regression is 0.96, indicating that the two measures are almost perfectly related, and are both capturing the same underlying partisanship.
The most important characteristics of Gaddie’s measure is that it constitutes a true forecast of what was expected to occur in the 2012 elections, since the measure itself was generated in 2011 using data from the 2004-2010 elections. As I show below, this metric can be used to generate an efficiency gap measure of what was likely to happen (indeed, what did happen) in the 2012 election.

Mayer!ParYsan!Baseline!for!Act!43!Districts!

Figure!7! Gaddie!and!Mayer!ParYsan!Baselne!Metrics!Compared!for!Act!43!Districts!!

80%! 75%! 70%! 65%! 60%! 55%! 50%! 45%! 40%! 35%! 30%! 25%! 20%! 15%! 10%!
5%! 0%!
0%!

rAsquared:!.96!
5%! 10%! 15%! 20%! 25%! 30%! 35%! 40%! 45%! 50%! 55%! 60%! 65%! 70%! 75%! 80%!

Gaddie!ParYsan!Baseline!for!Act!43!Districts!A!Republican!Assembly!%!

2. Step Two – Predicting Votes in a Demonstration District Plan 30

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 32 of 58
a. Creating a Demonstration District Plan With the model parameters in hand, I can estimate baseline partisanship and vote totals in every ward, including those uncontested by both parties (because I have independent variables in all wards, even when only one party is on the Assembly ballot). For uncontested districts, the predicted ward vote totals are what would be expected if both parties ran a candidate, based on the values of the independent variables in the wards. I then use these predicted ward level vote totals to generate vote estimates at the Census block level, and build a demonstration district using Census blocks as my basic unit. Because the variables used in the model are exogenous to district configuration and the out of sample predictions are accurate, the results of the analysis in Step one represent a valid measure of what the Assembly vote would have been in a different district configuration. I calculated estimated “open seat” vote totals, by subtracting the incumbency advantage in every district in which an incumbent ran. This is a more accurate method of determining the baseline partisanship of a district, as it removes the effect of incumbents, who may or may not be running in an alternative plan. This baseline process is standard in the discipline, and was used by the expert retained by the state legislature, Dr. Ronald Keith Gaddie, to analyze the partisan effects of Act 43 during the redistricting process. To obtain block level vote estimates, I disaggregated the ward level predicted values for the Democratic and Republican vote totals to individual blocks in that ward, based on each block’s share of the ward vote eligible population. This technique is widely used and accepted in the discipline (McDonald 2014; Pavia. and López-Quílez 2013). Census blocks have a voting eligible population range between 0 and 2,988, with an average of approximately 17 people. Wards contain an average of 40 blocks, although the range is substantial, with a minimum of 1
31

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 33 of 58
and a maximum of 740. At the end of this disaggregation process, I have a predicted Democratic and Republican Assembly vote total for each Census block in the state.
Table 4 shows an illustrative example, using Ward 23 in the city of Waukesha. This ward, located in the southeastern part of the city, had a 2010 Census population of 1,426, a voting age population of 1,089, and a voting eligible population of 1,071. The voting model generated estimates of 552 Republican and 318 Democratic votes in an open seat Assembly race in that ward. The ward contains twenty five Census blocks ranging in population from 0 to 127, with a voting eligible population range of 0 to 115.
The first column in Table 4 is the block’s geographic identifier, a unique code.23 The next column is the block’s voting eligible population (VEP) calculated as described in the previous section by removing noncitizens and institutionalized persons (although there are no prisons in this ward). The third column is the block’s share of the ward’s total VEP of 1,071; for the first block in the table it is 38 ÷ 1,071= .0352, or 3.52%. The next column is block level Republican vote estimate, calculated as 3.52% the ward Republican vote of 552, or 19.438. While the table rounds these vote totals, I use fractional values in the actual calculations.
23 The identifier is a combination of state, county, Census tract, and block FIPS codes. 32

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 34 of 58

Table!4!A!Ward!to!Block!Disaggregation! City!of!Waukesha!Ward!23!

Ward%Voting%Eligible%Population% %%

!!

Ward%Estimated%Republican%Assembly%Vote%

Ward%Estimated%Democratic%Assembly%Vote%

Block%Geographic% Identifier%

Block%VEP%

Block%Share%of% Ward%VEP%

%
% Block%Level% Republican%Vote% Estimate%%

%%

%%

(Block%VEP%÷%1,071)% (Block%Share%*%522)%

%%%%%%%%%%%%%%%%%%%%%%%%%%% 1,071%%
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% 552%%
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% 318%%
Block%Level% Democratic%Vote%
Estimate%
(Block%Share%*%318)%

551332024001002!

38!

3.52%!

19!

11!

551332024001003!

56!

5.24%!

29!

17!

551332024001004!

65!

6.06%!

33!

19!

551332024001005!

30!

2.77%!

15!

9!

551332024001007!

47!

4.37%!

24!

14!

551332024001008!

81!

7.57%!

42!

24!

551332024001009!

12!

1.11%!

6!

4!

551332024001010!

50!

4.70%!

26!

15!

551332024001011!

26!

2.46%!

14!

8!

551332024001012!

25!

2.32%!

13!

7!

551332024001013!

44!

4.14%!

23!

13!

551332024001014!

60!

5.57%!

31!

18!

551332024001015!

30!

2.77%!

15!

9!

551332024001016!

53!

4.99%!

28!

16!

551332024001017!

0!

0.00%!

0!

0!

551332024002009!

10!

0.93%!

5!

3!

551332024002010!

50!

4.68%!

26!

15!

551332024002011!

65!

6.06%!

33!

19!

551332024002012!

37!

3.44%!

19!

11!

551332024002013!

39!

3.61%!

20!

12!

551332024003036!

41!

3.78%!

21!

12!

551332024003039!

15!

1.39%!

8!

4!

551332024003040!

62!

5.76%!

32!

18!

551332024003042!

22!

2.01%!

11!

6!

551332025005011!

115!

10.73%!

59!

34!

33

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 35 of 58 Next, I input this block level data into a commercial GIS software package used for redistricting (Maptitude for Redistricting 2013, Build 2060) matching each block in the database of estimated votes with the same block in the Maptitude data using the block identification code. Finally, I drew a redistricting plan with the goal of minimizing the efficiency gap while adhering to the Wisconsin and federal Constitutional requirements of equal population, contiguity, compactness, and respect for political subdivisions. Beyond these criteria. the primary decision rule was creating competitive districts where possible, and balancing the number of districts with large Democratic and Republican majorities. Figures 8 and 9 show the statewide map and the districts in the Milwaukee area.
34

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 36 of 58 Figure 8 – Demonstration Plan Statewide Map
35

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 37 of 58 Figure 9 – Demonstration Plan - Milwaukee Area
36

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 38 of 58

b. Constitutional and Statutory Requirements

Table 5 shows the summary data for the Demonstration Plan (the full tables are in the annex to this report) and comparison data for the actual 2012 plan implemented in Act 43.24 The Demonstration Plan has a marginally larger population deviation, but is well below even the strictest standards applied to state legislative districts (a difference of 0.1% translates into 57 people). The population range in the Demonstration Plan is 57,191 to 57,686, a difference of 495 people. Given the ideal Assembly district population of 57,444, this is a deviation of 0.86%. The Demonstration Plan is more compact on average than Act 43, and has fewer municipal splits (119 compared to 120 in Act 43). On all constitutional requirements, the Demonstration Plan is comparable to Act 43.

Table!5!A!Plan!Comparison!to!Act!43

Demonstration!

!!

!!

Act!43!

Plan!

Population!Deviation!

0.86%!

0.76%!

Average!Compactness!(Reock)!

Number!of! Municipal!Splits!

County!
City! Town! Village!

0.41! 55! 64!

0.28! 58! 62!

Act 43 created six majority-minority Black population districts (numbers 10-12 and 1618), ranging from 56.7% -67.6% Black population, and from 51.1%-61.8% Black voting age population. The Demonstration Plan retains six Majority Black Assembly districts, ranging from 60.0% to 63.4% Black population, and from 56.2% to 60.5% Black voting age population:
24 Act 43 figures are taken from the Joint Final Pretrial Report filed in Baldus et al. vs Brennan et al.11-CV-562, filed February 24, 2012.
37

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Table!6!A!Black!Majority!Districts!in!Demonstration!Plan!

Assembly% District%

Population%

10!

57,195!

11!

57,455!

12!

57,420!

16!

57,282!

17!

57,437!

18!

57,241!

Voting%Age% Population%
41,528! 40,510! 38,774! 42,469! 39,639! 40,840!

Black% Population%

Black%

%Black%

Percentage% Voting%Age%

of%Population% Population%

36,593! 34,822! 34,923! 36,321! 34,450! 35,316!

64.0%! 60.6%! 60.8%! 63.4%! 60.0%! 61.7%!

25,125! 22,762! 21,829! 23,920! 22,275! 24,054!

BVAP%%
60.5%! 56.2%! 56.3%! 56.3%! 56.2%! 58.9%!

In Baldus et al. v. Brennan et al., a federal Court created a majority Latino district in Milwaukee (the 8th Assembly District). The Demonstration Plan retains the boundaries of this district thereby insuring compliance with Section 2 of the Voting Rights Act.

C. Efficiency Gap Calculations With the model described in Step one above and the block-level partisanship
baseline it generates, I can analyze any existing or hypothetical district configuration and generate predicted vote totals and efficiency gap measures for the Demonstration Plan.
1. Analysis of Act 43 Any discussion of Act 43 must begin with the basic fact that in 2012 Republicans achieved a 60-39 majority in the Assembly in an election in which the Democratic Party achieved 53.5% of the statewide two-party presidential vote. The imbalance between the Republican Party’s statewide vote margin at the top of the ticket (46.5%) and its Assembly majority (60.6%) turns the very notion of partisan symmetry on its head. That standard, according to King and Grofman (2007,8) “requires that the number of seats one party would
38

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 40 of 58
receive if it garnered a particular percentage of the vote be identical to the number of seats the other party would receive if it had received the same percentage of the vote” (2007,8). Here, it means that Democrats would have had to obtain 60 Assembly seats with 46.5% of the vote, an absurd proposition that requires a party’s legislative seat share to go up as its share of the vote goes down.
This result was achieved via the classic gerrymandering strategies of packing and cracking. Figure 10, a histogram of Republican two party vote percentages in 2012, shows the pattern. Here, the bars to the right of 50% indicate a Republican victory. Twenty three Democratic candidates were uncontested, indicating a significant level of packing (the bar at the far left side of the figure); uncontested races occur largely when one party sees zero probability of winning because the majority party has such overwhelming majorities in the district. By contrast, only four Republicans were uncontested. Act 43 also successfully cracked Democratic majorities in other districts, creating Republican majorities that were either marginal (twelve in the 50-55% range) or relatively safe (thirty nine in the 55-65% range). The 2012 results are consistent with what was forecast in 2011, as shown by Figure 11, a histogram of Dr. Gaddie’s baseline partisanship measure for Act 43 districts. This measure forecast fifty one Assembly districts with between 50% and 65% Republican vote share. This is the same number that actually occurred, fifty one.
Figure 12 shows the baseline partisanship district forecasts for Act 43, using the model outline in Step one, above. It is very similar to Dr. Gaddie’s forecast and the actual results: it forecast fifty districts with between 50% and 65% Republican vote share.
39

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Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 42 of 58
The treatment of the city of Sheboygan shows how this cracking was achieved. Sheboygan is a city on the Lake Michigan shoreline with a population of 49,285. It is a strongly Democratic area, voting 58.7%-41.3% for Obama in 2012; my baseline partisanship estimate for the city is 58.2%. The city is small enough to be contained in a single Assembly district in which it would constitute 86% of the ideal population, and it was entirely within the 26th Assembly district in both the 1992 and 2001 redistricting rounds. The areas surrounding it – the Village of Kohler and the Towns of Sheboygan and Wilson are all strongly Republican (with vote percentages for Romney of 62.8 %, 56.3%, and 59.4%, respectively; together, these municipalities constitute an area that is 58.2% Republican, as measured by the presidential vote).
Keeping the city of Sheboygan together would have created a Democratic district, made up of the city itself (58.7% Democratic) with the remaining 14% of population drawn from one
41

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 43 of 58 of the Republican areas around it. The result would have been a District that was roughly 54%56% Democratic.
Act 43, however, split Sheboygan into separate Assembly districts, placing 32,640 residents of the city into the 26th District, and 16,645 into the 27th. With the city split, these areas were combined into the Republican areas surrounding the city, producing two Republican districts: the 26th (51.3% Republican in the 2012 Assembly race; baseline open seat partisanship measure of 53.3%) and the 27th (57.9% Republican in the 2012 Assembly race, baseline open seat partisanship measure of 52.3%).
Figure 13, below, shows the split into Districts 26 and 27:
42

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 44 of 58
Figure 13– Act 43 Treatment of Sheboygan 2. Efficiency Gap Calculations for Act 43 and The Demonstration Plan Recall that the efficiency gap is a measure of gerrymandering based on the difference in the number of “wasted votes.” Votes cast for losing candidates are wasted, as are surplus votes for winning candidates above what is necessary to win. The gap is defined as the difference between the sum of wasted votes for the two parties, divided by the total number of votes cast in the election. Comparing a hypothetical district plan (where vote totals are predicted) to an existing district plan (where vote totals are known) requires care, in large part because it can be difficult
43

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 45 of 58
to know with certainty what districts will have incumbents (or how incumbents might rearrange themselves after a redistricting cycle), and because not every district will be contested in an actual election (Stephanopoulos and McGhee 2015).
Handling uncontested races is a straightforward problem; the key is applying a consistent rule to all plans being compared. In the efficiency gap calculation for my plan, I measure underlying partisan strength in each district by estimating the number of votes that would be cast for each party in an open seat election each district, assuming that all races are contested. In the actual 2012 Assembly elections, only 72 of 99 seats were contested by both major parties, leaving 27 uncontested races. Uncontested races by themselves will not necessarily have a dramatic effect on efficiency gap calculations as long as the number of races is small, or if uncontested districts are evenly split between the parties (as a rule, one uncontested race with only a Democrat will cancel out one uncontested race with only a Republican, conditioned on the number of votes cast in each race). But a significant imbalance in uncontested races will have a material effect on the results. Of the 27 uncontested races in 2012, 23 were in Democratic districts and only 4 in Republican districts.
In the academic redistricting literature, uncontested seats are typically handled by imputing what the vote totals would have been if a race had been contested (Gelman and King 1990), or assigning each uncontested race a 75%-25% vote split in favor of the party whose candidate ran unopposed (Gelman and King 1994; Stephanopoulos and McGhee 2015). Because I have direct measures of partisanship and vote predictions, I am able to generate accurate estimates of what the vote totals would have been in Act 43’s uncontested districts had both parties fielded candidates. In applying this method to the uncontested districts in the 2012 State Assembly elections, I create two directly equivalent sets of data: one for the Demonstration Plan,
44

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with predicted values of open seat vote totals for all districts, and one for the districts created in Act 43, using open seat estimates for each district. Efficiency gap results for the two redistricting plans constructed this way can be compared directly.
Table 7 shows the full set of efficiency gap calculations for the Demonstration Plan, with incumbency effects removed. For each district I calculate an estimated Democratic and Republican vote total, and forecast a winner. The resulting columns show the number of “wasted votes,” counting all votes cast for a losing candidates, and surplus votes for winning candidates (equal to ½ of the margin of victory). Totals for each party are summed, and the efficiency gap calculated as the Net Wasted Votes (here, Democratic Wasted Votes – Republican Wasted Votes) divided by the total number of votes cast in the election.
The data in Table 7 (on page 48) show that the Demonstration Plan results in 741,984 wasted Democratic votes (column E), obtained by adding the number of lost Democratic votes cast for losing candidates (566,634, column A) and the number of surplus Democratic votes cast for winners above what was necessary to win (175,350, column C). The same calculation for Republicans (using columns B and D) results in 689,570 wasted Republican votes. The difference between these two numbers, 781,984 - 689,570 = 62,414 net wasted Democratic votes. Dividing 62,414 by the predicted total number of votes 2,843,108, produces the baseline efficiency gap for my plan, .0220, or 2.20%.
Table 8 (on page 50) shows the same calculation for Act 43 districts, using estimated partisan vote totals with incumbent advantages removed. Act 43 resulted in a total of 332,552 net wasted Democratic votes. The efficiency gap of Act 43 is 11.69%, more than five times larger than the Demonstration Plan.
45

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Table 9 (on page 52) shows the efficiency gap calculation for the partisan baseline

prediction used by Dr. Gaddie during the drawing of the Act 43 districts, applying his

partisanship division to the total number of votes predicted from my model in each district. As

described above in section III(B)(1)(h) above, this is the predicted baseline partisanship measure

of Act 43. It produces a forecast Efficiency Gap for Act 43 of 12.36%.

Table 10 summarizes these results:

% party%split%(RTD)%

Table%10:%Summary%Statistics%for%Redistricting%

Plans%

My%Plan%%% Baseline%

Act%43%% Baseline%

Act%43%T% Gaddie% Measure%

48A51!

57A42!

58A41!

Wasted%Republican%Votes% 679,570!

544,893!

535,057!

Wasted%Democratic%Votes% 741,984!

877,445!

886,403!

Gap%

62,414!

332,552!

351,346!

Total%Democratic%%Votes% 1,454,117!

1,454,717!

1,394,018!

Total%Republican%Votes% 1,388,991!

1,389,958!

1,448,901!

Total%Votes%

2,843,108! 2,844,676! 2,842,919!

Efficiency%Gap% (gap/total%votes)%

2.20%%

11.69%% 12.36%%

Three things are worth emphasizing. The first is that the predicted partisan effect of Act 43, represented by the Gaddie metric, produced an efficiency gap calculation (12.36%) that was very close to the actual partisan effect of Act 43, as measured by the efficiency gap calculation for the actual 2012 partisan baseline (11.69%). In brief, the architects of the Act 43 districts expected a partisan result that was almost identical to what actually occurred. The second is the large reduction in the efficiency gap that I am able to produce, which I have achieved without any departure from the core constitutional and statutory requirements of redistricting. The

46

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 48 of 58 Demonstration Plan is equivalent to Act 43 on all key criteria: population deviation, compactness, number of political subdivision splits, and compliance with the Voting Rights Act. At the same time, I have generated an efficiency gap score 82% smaller than the Act 43 gap. And third, I have reached this efficiency gap score with virtually identical numbers of Democratic and Republican voters as exist under Act 43. Given that my partisan estimates, once incumbency effects are removed, are entirely exogenous to any particular district configuration, these can be considered the same statewide set of voters. By placing the same voters as exist in Act 43 into a new set of districts designed to minimize the effects of gerrymandering while adhering to constitutional standards, I have generated a plan that is fair to both parties.
Figure 14 shows the distribution of baseline Republican vote predictions in the Demonstration Plan Assembly districts. The districts are far more balanced, with similar numbers of districts between 40% - 50% (twenty seven) and between 50% - 60% (twenty nine). There are also roughly equal numbers of districts above 65% (twelve) and below 35% (sixteen).
47

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 49 of 58

Table%7%T%Efficiency%Gap%Calculation%for%Demonstration%District%Plan%T%No%Incumbent%Baseline%

%
Assembly% District%
1! 2! 3! 4! 5! 6! 7! 8! 9! 10! 11! 12! 13! 14! 15! 16! 17! 18! 19! 20! 21! 22! 23! 24! 25! 26! 27! 28! 29! 30! 31! 32! 33! 34! 35! 36! 37! 38! 39! 40! 41! 42! 43! 44! 45! 46! 47!

Predicted% Democratic%
Votes%
16,259! 11,805! 11,243! 10,881! 13,497! 11,045! 22,822! 7,192! 10,497! 25,348! 22,374! 20,041! 15,950! 13,575! 13,412! 21,234! 21,769! 23,817! 15,160! 14,118! 12,257! 18,335! 10,922! 8,667! 12,179! 13,251! 14,935! 12,617! 14,180! 11,308! 11,304! 12,685! 14,609! 13,139! 11,288! 11,516! 9,222! 9,710! 10,747! 15,061! 16,784! 13,254! 12,658! 16,477! 16,352! 20,583! 20,208!

Predicted% Republican%
Votes%
16,414! 10,025! 17,807! 12,790! 13,845! 17,627! 10,214! 1,695! 5,635! 3,270! 4,855! 4,039! 16,510! 13,799! 14,901! 2,856! 3,569! 4,954! 10,904! 12,901! 16,911! 14,831! 25,459! 25,868! 18,248! 14,527! 11,755! 15,591! 12,954! 15,165! 16,117! 13,787! 10,151! 15,690! 16,503! 14,997! 22,240! 25,021! 17,526! 13,947! 13,120! 12,282! 13,606! 10,886! 13,589! 11,418! 9,888!

Predicted% Winning%
Party%
Republican! Democratic! Republican! Republican! Republican! Republican! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Republican! Republican! Republican! Democratic! Democratic! Democratic! Democratic! Democratic! Republican! Democratic! Republican! Republican! Republican! Republican! Democratic! Republican! Democratic! Republican! Republican! Republican! Democratic! Republican! Republican! Republican! Republican! Republican! Republican! Democratic! Democratic! Democratic! Republican! Democratic! Democratic! Democratic! Democratic!

A%
Lost% Democratic%
Votes%
16259! 0!
11243! 10881! 13497! 11045!
0! 0! 0! 0! 0! 0! 15950! 13575! 13412! 0! 0! 0! 0! 0! 12257! 0! 10922! 8667! 12179! 13251! 0! 12617! 0! 11308! 11304! 12685! 0! 13139! 11288! 11516! 9222! 9710! 10747! 0! 0! 0! 12658! 0! 0! 0! 0!

B%
Lost% Republican%
Votes%
0! 10025!
0! 0! 0! 0! 10214! 1695! 5635! 3270! 4855! 4039! 0! 0! 0! 2856! 3569! 4954! 10904! 12901! 0! 14831! 0! 0! 0! 0! 11755! 0! 12954! 0! 0! 0! 10151! 0! 0! 0! 0! 0! 0! 13947! 13120! 12282! 0! 10886! 13589! 11418! 9888!

C%
Surplus% Democratic%
Votes%
0! 890!
0! 0! 0! 0! 6304! 2749! 2431! 11039! 8759! 8001! 0! 0! 0! 9189! 9100! 9431! 2128! 609! 0! 1752! 0! 0! 0! 0! 1590! 0! 613! 0! 0! 0! 2229! 0! 0! 0! 0! 0! 0! 557! 1832! 486! 0! 2795! 1382! 4582! 5160!

D%
Surplus% Republican%
Votes%
78! 0! 3282! 955! 174! 3291! 0! 0! 0! 0! 0! 0! 280! 112! 745! 0! 0! 0! 0! 0! 2327! 0! 7268! 8601! 3034! 638! 0! 1487! 0! 1929! 2406! 551! 0! 1275! 2607! 1741! 6509! 7655! 3390! 0! 0! 0! 474! 0! 0! 0! 0!

E% Wasted%

F% Wasted%

Ne% t%

Democratic% Republican% Wasted%

Votes%%%%%%%%%%% Votes%%%%%%%%%%% Votes%%%%%%%%%%

(A%+%C)%

(B%+%D)% (E%T%F)%

16259!

78!

16181!

890!

10025! A9136!

11243!

3282!

7961!

10881!

955!

9926!

13497!

174!

13323!

11045!

3291!

7753!

6304!

10214! A3910!

2749!

1695!

1054!

2431!

5635!

A3205!

11039!

3270!

7769!

8759!

4855!

3904!

8001!

4039!

3962!

15950!

280!

15670!

13575!

112!

13464!

13412!

745!

12667!

9189!

2856!

6333!

9100!

3569!

5531!

9431!

4954!

4477!

2128!

10904! A8776!

609!

12901! A12292!

12257!

2327!

9930!

1752!

14831! A13079!

10922!

7268!

3654!

8667!

8601!

66!

12179!

3034!

9145!

13251!

638!

12613!

1590!

11755! A10165!

12617!

1487! 11131!

613!

12954! A12341!

11308!

1929!

9379!

11304!

2406!

8898!

12685!

551!

12135!

2229!

10151! A7922!

13139!

1275! 11864!

11288!

2607!

8681!

11516!

1741!

9775!

9222!

6509!

2713!

9710!

7655!

2055!

10747!

3390!

7357!

557!

13947! A13391!

1832!

13120! A11288!

486!

12282! A11796!

12658!

474!

12184!

2795!

10886! A8091!

1382!

13589! A12207!

4582!

11418! A6835!

5160!

9888!

A4728!

48

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 50 of 58

48! 49! 50! 51! 52! 53! 54! 55! 56! 57! 58! 59! 60! 61! 62! 63! 64! 65! 66! 67! 68! 69! 70! 71! 72! 73! 74! 75! 76! 77! 78! 79! 80! 81! 82! 83! 84! 85! 86! 87! 88! 89! 90! 91! 92! 93! 94! 95! 96! 97! 98! 99! TOTALS%

24,457! 13,625! 12,289! 14,760! 12,376! 12,388! 14,032! 13,565! 12,553! 14,897! 9,325! 11,565! 8,756! 12,933! 15,181! 15,640! 15,089! 12,721! 16,286! 15,321! 11,958! 17,902! 18,661! 15,081! 11,180! 17,137! 17,712! 13,902! 30,929! 26,708! 24,413! 20,439! 20,179! 13,703! 9,871! 9,241! 11,990! 10,028! 13,853! 11,358! 14,209! 13,374! 11,349! 14,807! 14,907! 12,441! 16,171! 19,769! 14,665! 11,492! 9,864! 10,783! 1,454,117%

8,840! 13,477! 13,709! 13,323! 19,416! 13,362! 12,240! 15,300! 14,518! 13,016! 21,180! 21,984! 22,415! 16,576! 9,999! 9,902! 13,470! 19,816! 6,362! 14,226! 12,124! 12,022! 12,266! 13,884! 16,542! 10,785! 14,219! 17,700! 6,811! 6,059! 9,847! 13,294! 11,644! 12,741! 21,201! 23,075! 22,700! 13,190! 13,494! 17,003! 11,142! 15,771! 17,468! 13,845! 14,594! 18,057! 11,759! 9,949! 13,836! 24,222! 24,773! 19,160! 1,388,991%

Democratic! Democratic! Republican! Democratic! Republican! Republican! Democratic! Republican! Republican! Democratic! Republican! Republican! Republican! Republican! Democratic! Democratic! Democratic! Republican! Democratic! Democratic! Republican! Democratic! Democratic! Democratic! Republican! Democratic! Democratic! Republican! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Republican! Republican! Republican! Republican! Democratic! Republican! Democratic! Republican! Republican! Democratic! Democratic! Republican! Democratic! Democratic! Democratic! Republican! Republican! Republican!
%

0! 0! 12289! 0! 12376! 12388! 0! 13565! 12553! 0! 9325! 11565! 8756! 12933! 0! 0! 0! 12721! 0! 0! 11958! 0! 0! 0! 11180! 0! 0! 13902! 0! 0! 0! 0! 0! 0! 9871! 9241! 11990! 10028! 0! 11358! 0! 13374! 11349! 0! 0! 12441! 0! 0! 0! 11492! 9864! 10783! 566,634%

8840! 13477!
0! 13323!
0! 0! 12240! 0! 0! 13016! 0! 0! 0! 0! 9999! 9902! 13470! 0! 6362! 14226! 0! 12022! 12266! 13884! 0! 10785! 14219! 0! 6811! 6059! 9847! 13294! 11644! 12741! 0! 0! 0! 0! 13494! 0! 11142! 0! 0! 13845! 14594! 0! 11759! 9949! 13836! 0! 0! 0! 536,783%

7808! 74! 0! 718! 0! 0! 896! 0! 0! 941! 0! 0! 0! 0!
2591! 2869! 810!
0! 4962! 547!
0! 2940! 3197! 599!
0! 3176! 1747!
0! 12059! 10325! 7283! 3572! 4267!
481! 0! 0! 0! 0!
180! 0!
1533! 0! 0!
481! 157!
0! 2206! 4910! 415!
0! 0! 0! 175,350%

0! 0! 710! 0! 3520! 487! 0! 868! 983! 0! 5927! 5209! 6830! 1822! 0! 0! 0! 3547! 0! 0! 83! 0! 0! 0! 2681! 0! 0! 1899! 0! 0! 0! 0! 0! 0! 5665! 6917! 5355! 1581! 0! 2823! 0! 1199! 3059! 0! 0! 2808! 0! 0! 0! 6365! 7454! 4188! 142,787%

7808! 74!
12289! 718!
12376! 12388!
896! 13565! 12553!
941! 9325! 11565! 8756! 12933! 2591! 2869! 810! 12721! 4962! 547! 11958! 2940! 3197! 599! 11180! 3176! 1747! 13902! 12059! 10325! 7283! 3572! 4267! 481! 9871! 9241! 11990! 10028! 180! 11358! 1533! 13374! 11349! 481! 157! 12441! 2206! 4910! 415! 11492! 9864! 10783! 741,984%

8840! 13477!
710! 13323! 3520!
487! 12240!
868! 983! 13016! 5927! 5209! 6830! 1822! 9999! 9902! 13470! 3547! 6362! 14226! 83! 12022! 12266! 13884! 2681! 10785! 14219! 1899! 6811! 6059! 9847! 13294! 11644! 12741! 5665! 6917! 5355! 1581! 13494! 2823! 11142! 1199! 3059! 13845! 14594! 2808! 11759! 9949! 13836! 6365! 7454! 4188! 679,570%

A1032! A13403! 11579! A12605! 8857! 11902! A11344! 12697! 11570! A12075! 3398! 6356! 1926! 11112! A7408! A7033! A12660! 9173! A1401! A13678! 11875! A9083! A9069! A13285! 8500! A7609! A12472! 12002! 5248! 4266! A2564! A9722! A7377! A12260! 4206! 2324! 6634! 8448! A13314! 8535! A9609! 12175! 8290! A13364! A14437! 9633! A9553! A5040! A13421! 5128! 2410! 6594! 62,414%

49

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 51 of 58

%
Assembly% District%
1! 2! 3! 4! 5! 6! 7! 8! 9! 10! 11! 12! 13! 14! 15! 16! 17! 18! 19! 20! 21! 22! 23! 24! 25! 26! 27! 28! 29! 30! 31! 32! 33! 34! 35! 36! 37! 38! 39! 40! 41! 42! 43! 44! 45! 46! 47! 48! 49!

Table%8%T%Efficiency%Gap%Calculation%for%Act%43%T%No%Incumbent%Baseline%

%Predicted% %Predicted%

Democratic% Republican%

Votes%%

Votes%%

Predicted% Winning%
Party%

%A%%
%Lost% Democratic%
Votes%%

B%
Lost% Republican%
Votes%

C%
Surplus% Democra tic%Votes%

D%
Surplus% Republic an%Votes%

E% Wasted%

F% Wasted%

Ne% t%

Democratic% Republican% Wasted%

Votes%%%%%%%%%%% Votes%%%%%%%%%%% Votes%%%%%%%%%%

(A%+%C)%

(B%+%D)%

(E%T%F)%

16,235!

16,628! Republican! 16235!

0!

0!

197!

16235!

197!

16038!

12,398!

16,357! Republican! 12398!

0!

0!

1980!

12398!

1980!

10419!

12,623!

16,636! Republican! 12623!

0!

0!

2006!

12623!

2006!

10617!

13,926!

15,576! Republican! 13926!

0!

0!

825!

13926!

825!

13101!

12,710!

16,017! Republican! 12710!

0!

0!

1654!

12710!

1654!

11056!

10,929!

14,938! Republican! 10929!

0!

0!

2005!

10929!

2005!

8924!

13,793!

11,778! Democratic!

0!

11778!

1007!

0!

1007!

11778! A10771!

7,342!

1,738! Democratic!

0!

1738!

2802!

0!

2802!

1738!

1064!

10,023!

4,533! Democratic!

0!

4533!

2745!

0!

2745!

4533!

A1787!

25,306!

2,897! Democratic!

0!

2897!

11205!

0!

11205!

2897!

8308!

21,698!

3,368! Democratic!

0!

3368!

9165!

0!

9165!

3368!

5797!

19,700!

5,222! Democratic!

0!

5222!

7239!

0!

7239!

5222!

2018!

13,345!

20,358! Republican! 13345!

0!

0!

3506!

13345!

3506!

9839!

14,499!

21,025! Republican! 14499!

0!

0!

3263!

14499!

3263!

11235!

13,006!

17,310! Republican! 13006!

0!

0!

2152!

13006!

2152!

10853!

22,293!

2,342! Democratic!

0!

2342!

9975!

0!

9975!

2342!

7633!

24,088!

4,047! Democratic!

0!

4047!

10020!

0!

10020!

4047!

5973!

22,204!

2,692! Democratic!

0!

2692!

9756!

0!

9756!

2692!

7064!

22,759!

10,364! Democratic!

0!

10364!

6198!

0!

6198!

10364!

A4166!

16,066!

12,856! Democratic!

0!

12856!

1605!

0!

1605!

12856! A11252!

12,566!

15,324! Republican! 12566!

0!

0!

1379!

12566!

1379!

11187!

11,290!

22,958! Republican! 11290!

0!

0!

5834!

11290!

5834!

5456!

14,260!

21,633! Republican! 14260!

0!

0!

3687!

14260!

3687!

10573!

13,885!

20,335! Republican! 13885!

0!

0!

3225!

13885!

3225!

10659!

12,032!

15,933! Republican! 12032!

0!

0!

1950!

12032!

1950!

10082!

13,639!

15,559! Republican! 13639!

0!

0!

960!

13639!

960!

12679!

14,709!

16,360! Republican! 14709!

0!

0!

826!

14709!

826!

13883!

12,719!

15,302! Republican! 12719!

0!

0!

1291!

12719!

1291!

11428!

12,909!

14,662! Republican! 12909!

0!

0!

876!

12909!

876!

12033!

14,019!

16,951! Republican! 14019!

0!

0!

1466!

14019!

1466!

12553!

13,273!

15,615! Republican! 13273!

0!

0!

1171!

13273!

1171!

12102!

11,255!

15,359! Republican! 11255!

0!

0!

2052!

11255!

2052!

9203!

11,226!

18,298! Republican! 11226!

0!

0!

3536!

11226!

3536!

7690!

12,445!

19,355! Republican! 12445!

0!

0!

3455!

12445!

3455!

8991!

12,270!

15,525! Republican! 12270!

0!

0!

1628!

12270!

1628!

10643!

11,403!

15,672! Republican! 11403!

0!

0!

2134!

11403!

2134!

9269!

12,707!

16,202! Republican! 12707!

0!

0!

1747!

12707!

1747!

10960!

12,668!

19,129! Republican! 12668!

0!

0!

3231!

12668!

3231!

9437!

11,491!

17,211! Republican! 11491!

0!

0!

2860!

11491!

2860!

8630!

11,485!

13,597! Republican! 11485!

0!

0!

1056!

11485!

1056!

10429!

11,719!

14,492! Republican! 11719!

0!

0!

1387!

11719!

1387!

10332!

13,705!

15,462! Republican! 13705!

0!

0!

879!

13705!

879!

12826!

17,380!

13,075! Democratic!

0!

13075!

2153!

0!

2153!

13075! A10923!

16,680!

10,304! Democratic!

0!

10304!

3188!

0!

3188!

10304!

A7116!

15,153!

9,691! Democratic!

0!

9691!

2731!

0!

2731!

9691!

A6959!

19,173!

11,534! Democratic!

0!

11534!

3819!

0!

3819!

11534!

A7714!

21,609!

9,340! Democratic!

0!

9340!

6135!

0!

6135!

9340!

A3205!

24,517!

7,635! Democratic!

0!

7635!

8441!

0!

8441!

7635!

806!

12,307!

13,621! Republican! 12307!

0!

0!

657!

12307!

657!

11650!

50

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 52 of 58

50! 51! 52! 53! 54! 55! 56! 57! 58! 59! 60! 61! 62! 63! 64! 65! 66! 67! 68! 69! 70! 71! 72! 73! 74! 75! 76! 77! 78! 79! 80! 81! 82! 83! 84! 85! 86! 87! 88! 89! 90! 91! 92! 93! 94! 95! 96! 97! 98! 99! TOTALS%

12,467! 14,173! 11,294! 9,875! 15,180! 12,634! 12,564! 14,387! 8,843! 8,784! 9,848! 13,145! 14,828! 13,233! 15,702! 15,105! 16,162! 13,769! 13,663! 11,083! 12,211! 17,614! 14,294! 17,353! 17,095! 15,000! 30,939! 26,925! 24,163! 20,753! 20,369! 16,310! 12,168! 10,186! 12,503! 13,613! 13,425! 11,780! 13,141! 11,610! 12,080! 17,942! 14,285! 15,268! 17,408! 19,804! 10,950! 10,826! 10,182! 8,346! 1,454,717%

12,326! 13,048! 15,656! 16,753! 12,882! 16,971! 18,576! 11,676! 22,417! 21,725! 23,989! 16,481! 17,309! 16,830! 11,307! 7,929! 5,472! 14,674! 13,005! 14,347! 14,387! 11,383! 13,895! 10,784! 13,772! 13,418! 6,805! 6,041! 9,857! 13,975! 12,604! 12,356! 18,085! 23,755! 18,765! 12,925! 17,152! 15,118! 14,380! 15,516! 7,309! 11,769! 11,441! 15,393! 12,954! 9,627! 14,873! 18,042! 21,855! 25,535! 1,389,958%

Democratic! Democratic! Republican! Republican! Democratic! Republican! Republican! Democratic! Republican! Republican! Republican! Republican! Republican! Republican! Democratic! Democratic! Democratic! Republican! Democratic! Republican! Republican! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Republican! Republican! Republican! Democratic! Republican! Republican! Republican! Republican! Democratic! Democratic! Democratic! Republican! Democratic! Democratic! Republican! Republican! Republican! Republican!
%

0! 0! 11294! 9875! 0! 12634! 12564! 0! 8843! 8784! 9848! 13145! 14828! 13233! 0! 0! 0! 13769! 0! 11083! 12211! 0! 0! 0! 0! 0! 0! 0! 0! 0! 0! 0! 12168! 10186! 12503! 0! 13425! 11780! 13141! 11610! 0! 0! 0! 15268! 0! 0! 10950! 10826! 10182! 8346! 702,148%

12326! 13048!
0! 0! 12882! 0! 0! 11676! 0! 0! 0! 0! 0! 0! 11307! 7929! 5472! 0! 13005! 0! 0! 11383! 13895! 10784! 13772! 13418! 6805! 6041! 9857! 13975! 12604! 12356! 0! 0! 0! 12925! 0! 0! 0! 0! 7309! 11769! 11441! 0! 12954! 9627! 0! 0! 0! 0! 401,975%

71! 563!
0! 0! 1149! 0! 0! 1355! 0! 0! 0! 0! 0! 0! 2198! 3588! 5345! 0! 329! 0! 0! 3115! 199! 3284! 1662! 791! 12067! 10442! 7153! 3389! 3882! 1977! 0! 0! 0! 344! 0! 0! 0! 0! 2385! 3086! 1422! 0! 2227! 5088! 0! 0! 0! 0! 175,297%

0! 0! 2181! 3439! 0! 2169! 3006! 0! 6787! 6471! 7071! 1668! 1240! 1799! 0! 0! 0! 453! 0! 1632! 1088! 0! 0! 0! 0! 0! 0! 0! 0! 0! 0! 0! 2959! 6784! 3131! 0! 1863! 1669! 620! 1953! 0! 0! 0! 62! 0! 0! 1962! 3608! 5837! 8594! 142,918%

71! 563! 11294! 9875! 1149! 12634! 12564! 1355! 8843! 8784! 9848! 13145! 14828! 13233! 2198! 3588! 5345! 13769! 329! 11083! 12211! 3115! 199! 3284! 1662! 791! 12067! 10442! 7153! 3389! 3882! 1977! 12168! 10186! 12503! 344! 13425! 11780! 13141! 11610! 2385! 3086! 1422! 15268! 2227! 5088! 10950! 10826! 10182! 8346! 877,445%

12326! 13048! 2181! 3439! 12882! 2169! 3006! 11676! 6787! 6471! 7071! 1668! 1240! 1799! 11307! 7929! 5472!
453! 13005! 1632! 1088! 11383! 13895! 10784! 13772! 13418! 6805! 6041! 9857! 13975! 12604! 12356! 2959! 6784! 3131! 12925! 1863! 1669!
620! 1953! 7309! 11769! 11441!
62! 12954! 9627! 1962! 3608! 5837! 8594! 544,893%

A12256! A12485! 9113! 6437! A11733! 10465! 9559! A10321! 2055! 2313! 2778! 11477! 13588! 11434! A9109! A4341!
A127! 13316! A12676! 9451! 11123! A8267! A13696! A7500! A12110! A12627! 5262! 4402! A2704! A10586! A8722! A10379! 9210! 3401! 9373! A12581! 11561! 10111! 12521! 9658! A4924! A8683! A10019! 15206! A10727! A4539! 8989! 7219! 4346! A248! 332,552%

51

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 53 of 58

Table%9%T%Efficiency%Gap%Calculation%for%

Act%43%%2011%Gaddie%Metric%%T%No%Incumbent%Baseline%

%
Assembly% District%

%Predicted% Democratic%
Votes%%

%Predicted% Republican%
Votes%%

Predicted% Winning%
Party%

%A%%
%Lost% Democratic%
Votes%%

B%
Lost% Republican%
Votes%

C%
Surplus% Democratic%
Votes%

D%
Surplus% Republican%
Votes%

E%

F%

%

Wasted%

Wasted%

Net%

Democratic% Republican% Wasted%

Votes%%%%%%%%%%% Votes%%%%%%%%%%% Votes%%%%%%%%%%

(A%+%C)%

(B%+%D)% (E%T%F)%

1!

15,857!

16,651! Republican! 15857!

0!

0!

397!

15857!

397!

15461!

2!

12,983!

15,766! Republican! 12983!

0!

0!

1391!

12983!

1391!

11591!

3!

12,976!

16,236! Republican! 12976!

0!

0!

1630!

12976!

1630!

11346!

4!

13,742!

15,791! Republican! 13742!

0!

0!

1025!

13742!

1025!

12717!

5!

13,134!

15,593! Republican! 13134!

0!

0!

1230!

13134!

1230!

11904!

6!

10,779!

15,088! Republican! 10779!

0!

0!

2155!

10779!

2155!

8624!

7!

13,967!

11,604! Democratic!

0!

11604!

1181!

0!

1181!

11604! A10423!

8!

6,178!

2,709! Democratic!

0!

2709!

1735!

0!

1735!

2709!

A974!

9!

10,173!

4,184! Democratic!

0!

4184!

2995!

0!

2995!

4184!

A1189!

10!

24,623!

3,547! Democratic!

0!

3547!

10538!

0!

10538!

3547!

6992!

11!

20,235!

4,927! Democratic!

0!

4927!

7654!

0!

7654!

4927!

2728!

12!

18,066!

6,856! Democratic!

0!

6856!

5605!

0!

5605!

6856!

A1251!

13!

13,929!

19,774! Republican! 13929!

0!

14!

14,693!

20,831! Republican! 14693!

0!

15!

13,497!

16,819! Republican! 13497!

0!

16!

22,223!

2,618! Democratic!

0!

2618!

17!

22,553!

5,582! Democratic!

0!

5582!

18!

21,176!

3,719! Democratic!

0!

3719!

0! 0! 0! 9803! 8486! 8728!

2922! 3069! 1661!
0! 0! 0!

13929! 14693! 13497! 9803! 8486! 8728!

2922! 3069! 1661! 2618! 5582! 3719!

11007! 11624! 11835! 7184! 2904! 5009!

19!

23,838!

9,284! Democratic!

0!

9284!

7277!

20!

16,451!

12,471! Democratic!

0!

12471!

1990!

21!

13,125!

14,765! Republican! 13125!

0!

0!

22!

11,364!

22,885! Republican! 11364!

0!

0!

23!

15,182!

20,658! Republican! 15182!

0!

0!

24!

14,205!

20,015! Republican! 14205!

0!

0!

25!

13,065!

14,887! Republican! 13065!

0!

0!

0! 0! 820! 5761! 2738! 2905! 911!

7277! 1990! 13125! 11364! 15182! 14205! 13065!

9284! 12471!
820! 5761! 2738! 2905! 911!

A2007! A10482! 12305! 5603! 12444! 11299! 12154!

26!

12,853!

16,338! Republican! 12853!

0!

27!

13,611!

17,458! Republican! 13611!

0!

28!

12,609!

15,412! Republican! 12609!

0!

0!

1743!

12853!

1743!

11110!

0!

1923!

13611!

1923!

11688!

0!

1401!

12609!

1401!

11208!

29!

13,519!

14,054! Republican! 13519!

0!

30!

14,267!

16,601! Republican! 14267!

0!

0!

267!

13519!

267!

13251!

0!

1167!

14267!

1167!

13101!

31!

12,616!

16,273! Republican! 12616!

0!

32!

10,038!

16,566! Republican! 10038!

0!

0!

1829!

12616!

1829!

10787!

0!

3264!

10038!

3264!

6773!

33!

11,274!

18,247! Republican! 11274!

0!

34!

14,239!

17,558! Republican! 14239!

0!

35!

13,067!

14,729! Republican! 13067!

0!

0!

3487!

11274!

3487!

7788!

0!

1660!

14239!

1660!

12579!

0!

831!

13067!

831!

12236!

36!

12,227!

14,848! Republican! 12227!

0!

37!

12,110!

16,799! Republican! 12110!

0!

38!

12,574!

19,218! Republican! 12574!

0!

39!

10,899!

17,782! Republican! 10899!

0!

0!

1310!

12227!

1310!

10917!

0!

2345!

12110!

2345!

9766!

0!

3322!

12574!

3322!

9251!

0!

3442!

10899!

3442!

7457!

40!

10,514!

14,561! Republican! 10514!

0!

41!

11,761!

14,467! Republican! 11761!

0!

42!

13,152!

16,036! Republican! 13152!

0!

0!

2024!

10514!

2024!

8490!

0!

1353!

11761!

1353!

10407!

0!

1442!

13152!

1442!

11710!

43!

17,339!

13,113! Democratic!

0!

13113!

2113!

0!

2113!

13113! A10999!

44!

16,941!

10,043! Democratic!

0!

10043!

3449!

0!

3449!

10043! A6595!

45!

14,886!

9,957! Democratic!

0!

9957!

2464!

0!

2464!

9957!

A7493!

46!

17,681!

13,010! Democratic!

0!

13010!

2336!

0!

2336!

13010! A10674!

52

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 54 of 58

47! 48! 49! 50! 51! 52! 53! 54! 55! 56! 57! 58! 59! 60! 61! 62! 63! 64! 65! 66! 67! 68! 69! 70! 71! 72! 73! 74! 75! 76! 77! 78! 79! 80! 81! 82! 83! 84! 85! 86! 87! 88! 89! 90! 91! 92! 93! 94! 95! 96! 97! 98! 99! TOTALS%

20,628! 23,290! 13,071! 11,887! 14,637! 11,034! 9,930! 15,372! 13,302! 12,809! 14,436! 9,211! 9,669! 10,307! 12,661! 13,959! 11,973! 15,452! 14,760! 14,776! 13,748! 13,508! 11,657! 13,105! 17,189! 13,674! 16,837! 17,628! 13,590! 32,275! 26,627! 23,528! 20,211! 20,251! 15,887! 12,985! 10,756! 13,414! 13,703! 15,780! 12,413! 12,882! 12,009! 11,556! 18,044! 14,313! 15,014! 14,601! 18,730! 13,841! 10,706! 10,566! 8,517! 1,448,901%

10,322! 8,861! 12,859! 12,908! 12,584! 15,918! 16,099! 12,690! 16,297! 18,326! 11,575! 22,056! 20,843! 23,508! 16,935! 18,175! 17,692! 11,524! 8,274! 6,861! 14,698! 13,177! 13,773! 13,493! 11,807! 14,514! 11,300! 13,239! 14,829! 5,469! 6,339! 10,492! 14,516! 12,704! 12,770! 17,269! 23,185! 17,854! 12,843! 14,789! 14,420! 14,638! 15,118! 7,833! 11,816! 11,383! 15,690! 15,761! 10,701! 11,982! 18,158! 21,472! 25,349! 1,394,018%

Democratic! Democratic! Democratic! Republican! Democratic! Republican! Republican! Democratic! Republican! Republican! Democratic! Republican! Republican! Republican! Republican! Republican! Republican! Democratic! Democratic! Democratic! Republican! Democratic! Republican! Republican! Democratic! Republican! Democratic! Democratic! Republican! Democratic! Democratic! Democratic! Democratic! Democratic! Democratic! Republican! Republican! Republican! Democratic! Democratic! Republican! Republican! Republican! Democratic! Democratic! Democratic! Republican! Republican! Democratic! Democratic! Republican! Republican! Republican!
%

0! 0! 0! 11887! 0! 11034! 9930! 0! 13302! 12809! 0! 9211! 9669! 10307! 12661! 13959! 11973! 0! 0! 0! 13748! 0! 11657! 13105! 0! 13674! 0! 0! 13590! 0! 0! 0! 0! 0! 0! 12985! 10756! 13414! 0! 0! 12413! 12882! 12009! 0! 0! 0! 15014! 14601! 0! 0! 10706! 10566! 8517! 726,238%

10322! 8861! 12859!
0! 12584!
0! 0! 12690! 0! 0! 11575! 0! 0! 0! 0! 0! 0! 11524! 8274! 6861! 0! 13177! 0! 0! 11807! 0! 11300! 13239! 0! 5469! 6339! 10492! 14516! 12704! 12770! 0! 0! 0! 12843! 14789! 0! 0! 0! 7833! 11816! 11383! 0! 0! 10701! 11982! 0! 0! 0! 402,334%

5153! 7215! 106!
0! 1026!
0! 0! 1341! 0! 0! 1431! 0! 0! 0! 0! 0! 0! 1964! 3243! 3957! 0! 165! 0! 0! 2691! 0! 2769! 2195! 0! 13403! 10144! 6518! 2848! 3773! 1559! 0! 0! 0! 430! 495! 0! 0! 0! 1861! 3114! 1465! 0! 0! 4014! 930! 0! 0! 0! 160,165%

0! 0! 0! 511! 0! 2442! 3084! 0! 1498! 2759! 0! 6422! 5587! 6601! 2137! 2108! 2860! 0! 0! 0! 475! 0! 1058! 194! 0! 420! 0! 0! 620! 0! 0! 0! 0! 0! 0! 2142! 6215! 2220! 0! 0! 1004! 878! 1554! 0! 0! 0! 338! 580! 0! 0! 3726! 5453! 8416! 132,723%

5153! 7215! 106! 11887! 1026! 11034! 9930! 1341! 13302! 12809! 1431! 9211! 9669! 10307! 12661! 13959! 11973! 1964! 3243! 3957! 13748! 165! 11657! 13105! 2691! 13674! 2769! 2195! 13590! 13403! 10144! 6518! 2848! 3773! 1559! 12985! 10756! 13414! 430! 495! 12413! 12882! 12009! 1861! 3114! 1465! 15014! 14601! 4014! 930! 10706! 10566! 8517! 886,403%

10322! 8861! 12859! 511! 12584! 2442! 3084! 12690! 1498! 2759! 11575! 6422! 5587! 6601! 2137! 2108! 2860! 11524! 8274! 6861! 475! 13177! 1058! 194! 11807! 420! 11300! 13239! 620! 5469! 6339! 10492! 14516! 12704! 12770! 2142! 6215! 2220! 12843! 14789! 1004! 878! 1554! 7833! 11816! 11383! 338! 580! 10701! 11982! 3726! 5453! 8416! 535,057%

A5169! A1646! A12752! 11376! A11558! 8592! 6846! A11348! 11804! 10050! A10145! 2789! 4083! 3706! 10524! 11851! 9113! A9560! A5031! A2904! 13273! A13011! 10599! 12911! A9116! 13254! A8531! A11044! 12970! 7934! 3804! A3974! A11668! A8931! A11211! 10843! 4541! 11194! A12413! A14294! 11409! 12004! 10455! A5972! A8701! A9919! 14676! 14022! A6687! A11052! 6979! 5113! 102! 351,346%

53

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 55 of 58
D. Conclusions In this report, I have outlined a method that generates accurate estimates of underlying
partisanship using the 2012 presidential election vote, demographics, incumbency, and geographic features to explain patterns of voting in Assembly elections. This method is accurate, as demonstrated by its ability to forecast vote totals at both the individual ward and district levels, and I demonstrate that it generates valid out of sample estimates. It produces results that are very similar to those derived by the expert witness retained by the state legislature during its development of the redistricting map implemented in Act 43.
The results demonstrate that Act 43 was an egregious gerrymander, packing Democratic voters into a small number of districts and distributing Republican voters efficiently in a large number of districts in which they constituted safe majorities. As I demonstrated with the treatment of the city of Sheboygan in Act 43, areas of Democratic strength large enough to constitute majorities in single districts were unnecessarily split and then combined with larger Republican populations to create additional Republican districts and eliminate Democratic districts. The city, which had been in a single Democratic Assembly district since 1992, was split into two Republican districts. This packing and cracking was so successful that Republicans won 61% of Assembly seats in 2012, while obtaining only 46.5% of the statewide presidential vote.
The scope of the gerrymander is demonstrated by the efficiency gap calculation for Act 43: 11.69%. Based on the baseline partisanship estimates produced by Dr. Ronald Keith Gaddie during the drawing of the Act 43 plan, this was the intended outcome: using Gaddie’s baseline estimates, Act 43 had an expected efficiency gap of 12.36 %.
54

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 56 of 58 However, I drew a demonstration districting plan that was equivalent to Act 43 on population deviation, municipal splits, and compliance with the Voting Rights Act, and better on compactness, with a dramatically lower efficiency gap score of 2.20%. This proves that Act 43’s extreme partisan effects were not required by these constitutional or statutory mandates.
55

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 57 of 58
IV. Sources
Abramowitz, Alan I., Brad Alexander, and Matthew Gunning. 2006. “Don’t Blame Redistricting for Uncompetitive Elections.” PS: Political Science and Politics 39:87-90.
Afshartous, David and Jan de Leeuw. 2005. “Predicting in Multilevel Models.” Journal of Educational and Behavioral Statistics 30:109-139 (No. 2).
Ansolabehere, Stephen and James M. Snyder. 2012. “The Effects of Redistricting on Incumbents.” Election Law Journal 11:490-502 (No. 4)
Ansolabehere, Stephen and James M. Snyder, and Charles Stewart, III. 2000. “Old Voters, New Voters, and the Personal Vote: Using Redistricting to Measure the Incumbency Advantage. American Journal of Political Science 44:17-34 (No. 1, January).
Ansolabehere, Stephen and James M. Snyder, and Charles Stewart, III. 2001. “Candidate Positioning in U.S. House Elections.” American Journal of Political Science 45:136-159 (No. 1, January)
Cain, Bruce E. 1985. “Assessing the Partisan Effects of Redistricting.” American Political Science Review 79:320-333 (No. 2, June)
Campbell, James E. 1986. “Presidential Coattails and Midterm Losses in State Legislative Elections.” American Political Science Review 80:45-63 (No. 1, March)
Gelman, Andrew, and Gary King. 1990. “Estimating the Electoral Consequences of Legislative Redistricting.” Journal of the American Statistical Association 85:274-282 (June)
Gelman, Andrew, and Gary King. 1994. “A Unified Method of Evaluating Electoral Systems and Redistricting Plans.” American Journal of Political Science 38:514-554 (No. 2, May)
Glazier, Amihai, Bernard Grofman, and Marc Robbins. 1987. “Partisan and Incumbency Effects of 1970s Congressional Redistricting.” American Journal of Political Science 31:680-707 (No. 3, August).
Greene, William H. 1990. Econometric Analysis. New York: MacMillan.
Jacobson, Gary C. 2003. “Terror, Terrain, and Turnout: Explaining the 2002 Midterm Elections.” Political Science Quarterly 118:1-22 (No. 1, Spring).
Jacobson, Gary C. 2009. The Politics of Congressional Elections 7th edition. New York: Pearson Longman.
King, Gary. 1996. “Why Context Should Not Count.” Political Geography 15:159-163 (No. 2).
56

Case: 3:15-cv-00421-bbc Document #: 1-2 Filed: 07/08/15 Page 58 of 58
Levendusky, Matthew S., Jeremy C. Pope, and Simon D. Jackman. 2008. “Measuring-District Level Partisanship with Implications for the Analysis of U.S. Elections.” The Journal of Politics 70:736-753 (No. 3, July)
McDonald, Michael P. 2006. “Drawing the Line on District Competition.” PS; Political Sciene and Politics 39:99-104 (No 1, January)
McDonald, Michael P. 2014. “Presidential Vote within State Legislative Districts.” State Politics & Policy Quarterly 14:196-204 (No. 2)
Pavia, Jose M. and Antonio López-Quílez. 2013. “Spatial Vote Redistribution in Redrawn Polling Units.” Journal of the Royal Statistical Society A 176: 655-678 (Series A, Part 3)
Stephanopoulos, Nicholas O. and Eric M. McGhee. 2015. “Partisan Gerrymandering and the Efficiency Gap.” University of Chicago Law Review 82 (forthcoming).
Wattenberg, Martin P., Ian McAllister, and Anthony Salvanto. 2000. “How Voting is Like Taking an SAT Test: An Analysis of American Voter Runoff.” American Politics Quarterly 28:234-250 (No. 2, April).
57

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 1 of 76
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Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 3 of 76
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Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 4 of 76
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Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 5 of 76
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

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 6 of 76
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Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 7 of 76
UIBU BMM TVCTFRVFOU FMFDUJPOT IFME VOEFS UIBU QMBO XJMM BMTP IBWF FGàDJFODZ HBQT EJTBEWBOUBHFPVT UP %FNPDSBUT
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

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 8 of 76
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Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 9 of 76

-0.2

-0.1

0.0

0.1

0.2

Average Efficiency Gap, by districting plan

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

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 10 of 76
5IFSF NBZ CF FMFDUJPOT XIFSF B QBSUZ XJOT B NBKPSJUZ PG TFBUT BOE DPOUSPM PG UIF KVSJTEJDUJPOT MFHJTMBUVSF
 EFTQJUF OPU XJOOJOH B NBKPSJUZ PG WPUFT 4   XIJMF 7   BOE WJDFWFSTB *O GBDU UIFSF BSF OVNFSPVT JOTUBODFT PG NJTNBUDIFT CFUXFFO UIF QBSUZ XJOOJOH UIF TUBUFXJEF WPUF BOE UIF QBSUZ DPOUSPMMJOH UIF TUBUF MFHJTMBUVSF JO SFDFOU EFDBEFT * FTUJNBUF UIBU TJODF  UIFSF IBWF CFFO  DBTFT PG %FNPDSBUT XJOOJOH B NBKPSJUZ PG UIF WPUF JO TUBUF MFHJTMBUJWF FMFDUJPOT XIJMF OPU XJOOJOH B NBKPSJUZ PG UIF TFBUT BOE  DBTFT PG UIF SFWFSTF QIFOPNFOPO XIFSF %FNPDSBUT XPO B NBKPSJUZ PG UIF TFBUT XJUI MFTT UIBO  PG UIF TUBUFXJEF UXPQBSUZ WPUF
(FPHSBQIJD DMVTUFSJOH PG QBSUJTBOT JT UZQJDBMMZ B QSFSFRVJTJUF GPS QBSUJTBO HFS SZNBOEFSJOH 5IJT JT OPUIJOH PUIFS UIBO QBSUJTBO iQBDLJOHu B HFSSZNBOEFSFE EJTUSJDUJOH QMBO DSFBUFT B SFMBUJWFMZ TNBMM OVNCFS PG EJTUSJDUT UIBU IBWF VOVTVBMMZ MBSHF QSPQPSUJPOT PG QBSUJTBOT GSPN QBSUZ # 5IF HFPHSBQIJD DPODFOUSBUJPO PG QBSUZ # QBSUJTBOT NJHIU NBLF DSFBUJOH UIFTF EJTUSJDUT B TUSBJHIUGPSXBSE UBTL *O PUIFS EJTUSJDUT JO UIF KVSJTEJDUJPO QBSUZ # TVQQPSUFST OFWFS PS TFMEPN
 DPOTUJUVUF B NBKPSJUZ PS B QMVSBMJUZ
 NBLJOH UIPTF EJTUSJDUT iTBGFu GPS QBSUZ " 5IJT EJT USJDUJOH QMBO IFMQT FOTVSF QBSUZ " XJOT B NBKPSJUZ PG TFBUT FWFO UIPVHI QBSUZ # IBT B NBKPSJUZ PG TVQQPSU BDSPTT UIF KVSJTEJDUJPO PS BU UIF WFSZ MFBTU UIF EJTUSJDU JOH QMBO IFMQT FOTVSFT UIBU QBSUZ "T TFBU TIBSF FYDFFET JUT WPUF TIBSF JO BOZ HJWFO FMFDUJPO
*U JT DPOWFOUJPOBM JO QPMJUJDBM TDJFODF UP TBZ UIBU TVDI B QMBO BMMPXT QBSUZ " UP iNPSF FGàDJFOUMZu USBOTMBUF JUT WPUFT JOUP TFBUT SFMBUJWF UP UIF XBZ UIF QMBO USBOTMBUFT QBSUZ #T WPUFT JOUP TFBUT 5IJT OPNFODMBUVSF JT UFMMJOH BT XF XJMM TFF XIFO XF DPOTJEFS UIF FGàDJFODZ HBQ NFBTVSF CFMPX
"TTFTTJOH UIF QBSUJTBO GBJSOFTT PG B EJTUSJDUJOH QMBO JT GVOEBNFOUBMMZ BCPVU NFBTVSJOH B QBSUZT FYDFTT PS EFàDJU
 JO JUT TFBU TIBSF SFMBUJWF UP JUT WPUF TIBSF 5IF FGàDJFODZ HBQ JT TVDI B TVNNBSZ NFBTVSF 5P BTTFTT UIF QSPQFSUJFT PG UIF FGàDJFODZ HBQ * àSTU SFWJFX TPNF DPSF DPODFQUT JO UIF BOBMZTJT PG EJTUSJDUJOH QMBOT WPUF TIBSFT TFBU TIBSFT BOE UIF SFMBUJPOTIJQ CFUXFFO UIF UXP RVBOUJUJFT JO TJOHMF NFNCFS EJTUSJDUT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 11 of 76
 4FBUT7PUFT $VSWFT
&MFDUPSBM TZTUFNT USBOTMBUF QBSUJFT WPUF TIBSFT 7
 JOUP TFBU TIBSFT 4
 #PUI 7 BOE 4 BSF QSPQPSUJPOT 1MPUUJOH UIF UXP RVBOUJUJFT 7 BOE 4 BHBJOTU POF BOPUIFS ZJFMET UIF iTFBUTWPUFTu DVSWF B TUBQMF JO UIF BOBMZTJT PG FMFDUPSBM TZTUFNT BOE EJTUSJDUJOH QMBOT 5XP TFBUTWPUFT DVSWFT BSF TIPXO JO 'JHVSF  POF TIPXJOH B OPOMJOFBS SFMBUJPOTIJQ CFUXFFO TFBUT BOE WPUFT UZQJDBM PG TJOHMFNFNCFS EJT USJDU TZTUFNTđ UIF PUIFS TIPXJOH B MJOFBS SFMBUJPOTIJQ CFUXFFO TFBUT BOE WPUFT PCTFSWFE VOEFS QSPQPSUJPOBM SFQSFTFOUBUJPO TZTUFNT
*O QVSF QSPQPSUJPOBM SFQSFTFOUBUJPO 13
 WPUJOH TZTUFNT TFBUTWPUFT DVSWFT BSF  EFHSFF MJOFT CZ EFTJHO DSPTTJOH UIF 7 4
   
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*O TJOHMFNFNCFS TJNQMF QMVSBMJUZ 4.41
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 MBSHF DIBOHFT JO TFBU TIBSFT 4
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 BU UIF NJEEMF PG UIF EJTUSJCVUJPO PG EJTUSJDU UZQFT 5IJT QSFTVNFT B EJTUSJDUJOH QMBO TVDI UIBU CPUI QBSUJFT IBWF B TNBMM OVNCFS PG iTUSPOHIPMETu XJUI FYUSFNFMZ MBSHF DIBOHFT JO WPUF TIBSFT OFFEFE UP UISFBUFO UIFTF EJTUSJDUT BOE TP UIF TFBUTWPUFT DVSWF UFOET UP iáBUUFO PVUu BT KVSJTEJDUJPOXJEF WPUF TIBSF 7
 UBLFT PO SFMBUJWFMZ MBSHF PS TNBMM WBMVFT 0UIFS TIBQFT BSF QPTTJCMF UPP FH CJQBSUJTBO JODVNCFOUQSPUFDUJPO QMBOT HFOFSBUF TFBUTWPUFT DVSWFT UIBU BSF MBSHFMZ áBU GPS NPTU WBMVFT PG 7 TBWF GPS UIF DPOTUSBJOU UIBU UIF DVSWF SVO UISPVHI UIF QPJOUT 7 4
   
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 JF SFMBUJWFMZ MBSHF NPWFNFOUT JO 7 HFOFSBUFT SFMBUJWFMZ MJUUMF DIBOHF JO TFBUT TIBSFT
đ5IF DVSWF MBCFMFE i$VCF -BXu JO 'JHVSF  JT HFOFSBUFE BTTVNJOH UIBU 4 ๞4
  <7 ๞7
> BO BQQSPYJNBUJPO GPS UIF MBDL PG QSPQPSUJPOBMJUZ XF PCTFSWF JO TJOHMFNFNCFS EJTUSJDU TZTUFNT UIPVHI IBSEMZ B iMBXu


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 12 of 76

Seats (S)

1.0

0.9

0.8

0.7

0.6

0.5

0.4

0.3

0.2

0.1

Cube Rule

0.0

Proportional Representation

0.0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1.0

Votes (V)

'JHVSF  5XP 5IFPSFUJDBM 4FBUT7PUFT $VSWFT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 13 of 76
 1BSUJTBO CJBT
#PUI PG UIF IZQPUIFUJDBM TFBUTWPUFT DVSWFT JO 'JHVSF  SVO UISPVHI UIF i u QPJOU XIFSF 7   BOE 4   "O JOUFSFTUJOH FNQJSJDBM RVFTUJPO JT XIFUIFS BDUVBM TFBUTWPUFT DVSWFT SVO UISPVHI UIJT QPJOU PS NPSF HFOFSBMMZ XIFUIFS UIF TFBUTWPUFT DVSWF JT TZNNFUSJD BCPVU 7   'PSNBMMZ TZNNFUSZ PG UIF TFBUT WPUF DVSWF JT UIF DPOEJUJPO UIBU & 4]7
  ๞& 4]๞7
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'JHVSF  TIPXT UISFF TFBUTWPUFT DVSWFT XJUI UIF HSBQI DMJQQFE UP UIF SFHJPO 7 ྎ < > BOE 4 ྎ < > TP BT UP FNQIBTJ[F UIF OBUVSF PG QBSUJTBO CJBT 5IF CMVF QPTJUJWF CJBT DVSWF iMJGUTu UIF TFBUTWPUFT DVSWF JU DSPTTFT 4   XJUI 7   BOE QBTTFT UISPVHI UIF VQQFSMFGU RVBESBOU PG UIF HSBQI 5IBU JT XJUI QPTJUJWF CJBT B QBSUZ DBO XJO B NBKPSJUZ PG UIF TFBUT XJUI MFTT UIFO B NBKPSJUZ PG UIF KVSJTEJDUJPOXJEF PS BWFSBHF WPUF FRVJWBMFOUMZ JG UIF QBSUZ XJOT 7   JU DBO FYQFDU UP XJO NPSF UIBO  PG UIF TFBUT $POWFSTFMZ XJUI OFHBUJWF CJBT UIF PQQPTJUF QIFOPNFOPO PDDVST UIF QBSUZ DBOU FYQFDU UP XJO B NBKPSJUZ PG UIF TFBUT VOUJM JU XJOT NPSF UIBO B NBKPSJUZ PG UIF KVSJTEJDUJPOXJEF PS BWFSBHF WPUF
 .VMUJZFBS NFUIPE
8JUI EBUB GSPN NVMUJQMF FMFDUJPOT VOEFS UIF TBNF EJTUSJDU QMBO QBSUJTBO CJBT DBO CF FTUJNBUFE CZ àUUJOH B TFBUTWPUFT DVSWF UP UIF PCTFSWFE TFBU BOE WPUF TIBSFT UZQJDBMMZ WJB B TJNQMF TUBUJTUJDBM UFDIOJRVF TVDI BT MJOFBS SFHSFTTJPO UIJT BQQSPBDI IBT B MPOH BOE EJTUJOHVJTIFE MJOFBHF JO CPUI QPMJUJDBM TDJFODF BOE TUBUJTUJDT FH &EHFXPSUI  ,FOEBMM BOE 4UVBSU  5VGUF 
 /JFNJ BOE 'FUU 
 SFGFSSFE UP UIJT NFUIPE PG FTUJNBUJOH UIF QBSUJTBO CJBT PG BO FMFDUPSBM TZTUFN BT UIF iNVMUJZFBSu NFUIPE SFáFDUJOH UIF GBDU UIBU UIF VOEFSMZJOH EBUB DPNFT GSPN B TFRVFODF PG FMFDUJPOT
5IJT BQQSPBDI JT PG MJNJUFE VUJMJUZ XIFO BTTFTTJOH B OFX PS QSPQPTFE EJTUSJDU JOH QMBO .PSF HFOFSBMMZ JU JT PG OP HSFBU IFMQ UP JOTJTU UIBU B TFRVFODF PG FMFDUJPOT NVTU CF DPOEVDUFE VOEFS B SFEJTUSJDUJOH QMBO CFGPSF UIF QMBO DBO CF QSPQFSMZ BT TFTTFE *OEFFE GFX QMBOT TUBZ JOUBDU MPOH FOPVHI UP QFSNJU SFMJBCMF BOBMZTJT JO


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 14 of 76

0.6

Seats (S)

0.5

0.4 0.4

0.5 Votes (V)

Cube Rule no bias Cube Rule positive bias Cube Rule negative bias
0.6

'JHVSF  5IFPSFUJDBM TFBUTWPUFT DVSWFT XJUI EJGGFSFOU MFWFMT PG QBSUJTBO CJBT 5IJT HSBQI JT i[PPNFE JOu PO UIF SFHJPO 7 ྎ < > BOE 4 ྎ < > UIF TFBUT
WPUFT iDVSWFTu BSF BQQSPYJNBUFMZ MJOFBS JO UIJT SFHJPO



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 15 of 76

UIJT XBZ 4UBUFMFWFM QMBOT JO UIF 6OJUFE 4UBUFT NJHIU HFOFSBUF BT NBOZ àWF FMFD UJPOT CFUXFFO EFDFOOJBM DFOTVTFT "DDPSEJOHMZ NBOZ VTFT PG UIF iNVMUJZFBSu NFUIPE QPPM NVMUJQMF QMBOT BOEPS BDSPTT KVSJTEJDUJPOT TP BT UP FTUJNBUF BWFS BHF QBSUJTBO CJBT 'PS JOTUBODF /JFNJ BOE +BDLNBO 
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 6OJGPSN TXJOH

0OF BQQSPBDIEBUJOH CBDL UP 4JS %BWJE #VUMFST 
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GPMMPXT MFU UJ CF UIF OVNCFS PG WPUFST JO EJTUSJDU J BOE 7  ၱOJ UJWJ ၱOJ UJ

5IF VOJGPSN TXJOH BQQSPBDI QFSUVSCT UIF PCTFSWFE EJTUSJDUMFWFM SFTVMUT Ȧ CZ

B DPOTUBOU GBDUPS ‫ ܤ‬DPSSFTQPOEJOH UP B IZQPUIFUJDBM BNPVOU PG VOJGPSN TXJOH

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

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 16 of 76
TJNQMZ iSFBE PGGu UIJT TFU PG SFTVMUT DPNQVUFE BT 4ຆ] 7ຆ  
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 $SJUJRVFT PG QBSUJTBO CJBT
"NPOH QPMJUJDBM TDJFOUJTUT UIF VOJGPSN TXJOH BQQSPBDI XBT DSJUJDJ[FE GPS JUT EFUFSNJOJTN 4XJOHT BSF OFWFS FYBDUMZ VOJGPSN BDSPTT EJTUSJDUT 5IFSF BSF NBOZ QFSNVUBUJPOT PG PCTFSWFE WPUF TIBSFT UIBU HFOFSBUF B TUBUFXJEF WPUF TIBSF PG  PUIFS UIBO TJNQMZ TIJGUJOH PCTFSWFE EJTUSJDUMFWFM SFTVMUT CZ B DPOTUBOU GBDUPS " MFTT EFUFSNJOJTUJD BQQSPBDI UP BTTFTTJOH QBSUJTBO CJBT XBT EFWFMPQFE PWFS B TFSJFT PG QBQFST CZ (BSZ ,JOH BOE "OESFX (FMNBO JO UIF FBSMZ T FH (FMNBO BOE ,JOH 
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

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 17 of 76
DPVOUFSGBDUVBM XF NVTU DPOUFNQMBUF XIFO BTTFTTJOH UIF QBSUJTBO CJBT PG B EJT USJDUJOH QMBO
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:FU UIJT EJTUSBDUT VT GSPN UIF GBDU UIBU BTZNNFUSZ JO UIF EJTUSJCVUJPO PG WPUF TIBSFT BDSPTT EJTUSJDUT JT UIF LFZ PQFSBUJWF GFBUVSF PG B EJTUSJDUJOH QMBO BOE UIF FYUFOU UP XIJDI JU BEWBOUBHFT POF QBSUZ PS UIF PUIFS $SJUJDBMMZ XF OFFE OPU NBLF BQQFBMT UP DPVOUFSGBDUVBM IZQPUIFUJDBM FMFDUJPOT JO PSEFS UP BTTFTT UIJT BTZNNFUSZ
 5IF &öDJFODZ (BQ
5IF FGàDJFODZ HBQ &(
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4UFQIBOPQPVMPT BOE .D(IFF 
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8BTUFE WPUFT HFU BU UIF DPSF PG XIBU QBSUJTBO HFSSZNBOEFSJOH JT BOE IPX JU PQFSBUFT " HFSSZNBOEFS BHBJOTU QBSUZ " DSFBUFT B SFMBUJWFMZ TNBMM OVNCFS PG EJT USJDUT UIBU iMPDL VQu B MPU PG JUT WPUFT iQBDLJOHu XJUI WJ  
 BOE B MBSHFS OVNCFS PG EJTUSJDUT UIBU EJTQFSTF WPUFT UISPVHI EJTUSJDUT XPO CZ QBSUZ # iDSBDLJOHu XJUI WJ  
 5P CF TVSF CPUI QBSUJFT BSF XBTUJOH WPUFT #VU QBSUJTBO BEWBOUBHF FO TVFT XIFO POF QBSUZ JT XBTUJOH GFXFS WPUFT UIBO UIF PUIFS PS FRVJWBMFOUMZ NPSF FGàDJFOUMZ USBOTMBUJOH WPUFT JOUP TFBUT /PUF BMTP IPX UIF FGàDJFODZ HBQ NFBTVSF JT BMTP DMPTFMZ UJFE UP BTZNNFUSZ JO UIF EJTUSJCVUJPO PG WJ


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 18 of 76

4PNF OPUBUJPO XJMM IFMQ NBLF UIF QPJOU NPSF DMFBSMZ *G WJ   UIFO QBSUZ " XJOT UIF EJTUSJDU BOE TJ   PUIFSXJTF TJ   5IF FGàDJFODZ HBQ JT EFàOFE CZ .D(IFF  
 BT iSFMBUJWF XBTUFE WPUFTu PS

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JT UIF TVN PG XBTUFE WPUF QSPQPSUJPOT GPS QBSUZ # BOE O JT UIF OVNCFS PG EJTUSJDUT JO UIF KVSJTEJDUJPO *G &(   UIFO QBSUZ # JT XBTUJOH NPSF WPUFT UIBO " PS " JT USBOTMBUJOH WPUFT JOUP TFBUT NPSF FGàDJFOUMZ UIBO # JG &(   UIFO UIF DPOWFSTF QBSUZ " JT XBTUJOH NPSF WPUFT UIBO # BOE # JT USBOTMBUJOH WPUFT JOUP TFBUT NPSF FGàDJFOUMZ UIBO "

 5IF FöDJFODZ HBQ XIFO EJTUSJDUT BSF PG FRVBM TJ[F

6OEFS UIF BTTVNQUJPO PG FRVBMMZ TJ[FE EJTUSJDUT .D(IFF  
 SFFYQSFTTFT

UIF FGàDJFODZ HBQ BT

&(  4 ๞  ๞  7 ๞ 





SFDBMMJOH UIBU 4  O๞ ၱOJ TJ JT UIF QSPQPSUJPO PG TFBUT XPO CZ QBSUZ " BOE 7  O๞ ၱOJ WJ JT UIF QSPQPSUJPO PG WPUFT XPO CZ QBSUZ "
5IF BTTVNQUJPO PG FRVBMMZTJ[FE EJTUSJDUT JT FTQFDJBMMZ IFMQGVM GPS UIF BOBMZTJT SFQPSUFE CFMPX TJODF UIF DBMDVMBUJPO PG &( JO B HJWFO FMFDUJPO UIFO SFEVDFT UP VTJOH UIF KVSJTEJDUJPOMFWFM RVBOUJUJFT 4 BOE 7 BT JO FRVBUJPO  'PS UIF BOBMZTJT PG IJTUPSJDBM FMFDUJPO SFTVMUT SFQPSUFE CFMPX JU JTOU QPTTJCMF UP PCUBJO NFBTVSFT PG EJTUSJDU QPQVMBUJPOT NFBOJOH UIBU XF SFBMMZ IBWF OP PQUJPO PUIFS UIBO UP SFMZ PO UIF KVSJTEJDUJPOMFWFM RVBOUJUJFT 4 BOE 7 XIFO FTUJNBUJOH UIF &(
* PQFSBUJPOBMJ[F 7 BT UIF BWFSBHF PWFS EJTUSJDUT
 PG UIF %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF JO TFBUT XPO CZ FJUIFS B %FNPDSBUJD PS 3FQVCMJDBO DBOEJEBUF



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 19 of 76
UIJT TFU PG TFBUT JODMVEFT VODPOUFTUFE TFBUT XIFSF * XJMM VTF JNQVUBUJPO QSPDFEVSFT UP FTUJNBUF UXPQBSUZ WPUF TIBSF *G EJTUSJDUT BSF PG FRVBM TJ[F BOE JHOPSJOH TFBUT XPO CZ JOEFQFOEFOUT BOE NJOPS QBSUZ DBOEJEBUFT
 UIFO UIJT BWFSBHF PWFS EJTUSJDUT XJMM DPSSFTQPOE UP UIF %FNPDSBUJD TIBSF PG UIF TUBUFXJEF UXPQBSUZ WPUF
 5IF TFBUTWPUF DVSWF XIFO UIF FöDJFODZ HBQ JT [FSP
5IJT TJNQMF FYQSFTTJPO GPS UIF FGàDJFODZ HBQ JNQMJFT UIBU JG UIF FGàDJFODZ HBQ JT [FSP XF PCUBJO B QBSUJDVMBS UZQF PG TFBUTWPUFT DVSWF TIPXO JO 'JHVSF 
 UIF TFBUTWPUFT DVSWF SVOT UISPVHI UIF  QPJOU *G UIF KVSJTEJDUJPO XJEF WPUF JT TQMJU  CFUXFFO QBSUZ " BOE QBSUZ # UIFO XJUI BO FGàDJFODZ HBQ PG [FSP 4  
 DPOEJUJPOBM PO 7   BO FWFO TQMJU PG UIF WPUF
 UIF FGàDJFODZ HBQ JT UIF TBNF BT QBSUJTBO CJBT 7   ಓ &(  4 ๞  UIF TFBU TIBSF GPS QBSUZ " JO FYDFTT PG  5IBU JT UIF FGàDJFODZ HBQ SFEVDFT UP QBSUJTBO CJBT VOEFS UIF DPVOUFSGBDUVBM TDFOBSJP 7   UIBU UIF QBSUJTBO CJBT NFBTVSF SFRVJSFT VT UP DPOUFNQMBUF 0O UIF PUIFS IBOE UIF FGàDJFODZ HBQ JT OPU QSFNJTFE PO UIBU DPVOUFSGBDUVBM IPMEJOH PS BOZ PUIFS DPVOUFSGBDUVBM GPS UIBU NBUUFS UIF FGàDJFODZ HBQ TVNNBSJ[FT UIF EJTUSJCVUJPO PG PCTFSWFE EJTUSJDUMFWFM WPUF TIBSFT WJ
 UIF TFBUTWPUFT DVSWF JT MJOFBS UISPVHI UIF  QPJOU XJUI B TMPQF PG  5IBU JT XJUI &(   4  7 ๞  0S XJUI B [FSP FGàDJFODZ HBQ FBDI BEEJUJPOBM QFSDFOUBHF QPJOU PG WPUF TIBSF GPS QBSUZ " HFOFSBUFT UXP BEEJ UJPOBM QFSDFOUBHF QPJOUT PG TFBU TIBSF " [FSP FGàDJFODZ HBQ EPFT OPU JNQMZ QSPQPSUJPOBM SFQSFTFOUBUJPO B TFBUTWPUFT UIBU JT TJNQMZ B  EFHSFF MJOF

 B QBSUZ XJOOJOH  PS MFTT PG UIF KVSJTEJDUJPOXJEF WPUF TIPVME XJO [FSP TFBUT VOEFS B QMBO XJUI B [FSP FGàDJFODZ HBQ B QBSUZ XJOOJOH  PS NPSF PG UIF KVSJTEJDUJPOXJEF WPUF TIPVME XJO BMM PG UIF TFBUT VOEFS B QMBO XJUI B [FSP FGàDJFODZ HBQ 5IJT JT B DPOTFRVFODF PG UIF iUPu TFBUTWPUF SBUJP BOE UIF TZNNFUSZ JNQMJFE CZ B [FSP FGàDJFODZ HBQ " QBSUZ UIBU XJOT BO FYUSFNFMZ MPX TIBSF PG UIF WPUF 7  
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

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 20 of 76

Seats (S)

1.0

0.9

0.8

0.7

0.6

0.5

0.4

0.3

0.2

0.1

Zero efficiency gap

Cube Rule

0.0

Proportional Representation

0.0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1.0

Votes (V)

'JHVSF  5IFPSFUJDBM TFBUTWPUFT DVSWFT 5IF &(   DVSWF JNQMJFT UIBU B
 B QBSUZ XJOOJOH MFTT UIBO 7   KVSJTEJDUJPOXJEF TIPVME OPU XJO BOZ TFBUT C
 TZNNFUSJDBMMZ B QBSUZ XJOOJOH NPSF UIBO 7   KVSJTEJTUJPOXJEF TIPVME XJO
BMM UIF TFBUT BOE D
 UIF SFMBUJPOTIJQ CFUXFFO TFBU TIBSFT 4 BOE WPUF TIBSFT 7 PWFS UIF JOUFSWBM 7 ྎ < > JT B MJOFBS GVODUJPO XJUI TMPQF UXP JF GPS FWFSZ POF
QFSDFOUBHF QPJOU HBJO JO WPUF TIBSF TFBU TIBSF TIPVME HP VQ CZ UXP QFSDFOUBHF
QPJOUT




Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 21 of 76
.PSFPWFS UIF FGàDJFODZ HBQ JT USJWJBM UP DPNQVUF PODF XF IBWF 7 BOE 4 GPS B HJWFO FMFDUJPO 8F EPOU OFFE B TFRVFODF PG FMFDUJPOT VOEFS B QMBO JO PSEFS UP DPNQVUF &( OPS EP XF OFFE UP BODIPS PVSTFMWFT UP B DPVOUFSGBDUVBM TDFOBSJP TVDI BT 7   BT XF EP XIFO DPNQVUJOH QBSUJTBO CJBT 'PS BOZ HJWFO PCTFSWFE 7 UIF IZQPUIFTJT PG [FSP FGàDJFODZ HBQ UFMMT VT XIBU MFWFM PG 4 UP FYQFDU
 5IF FöDJFODZ HBQ BT BO FYDFTT TFBUT NFBTVSF
*O UIJT TFOTF UIF FGàDJFODZ HBQ DBO CF JOUFSQSFUFE FWFO NPSF TJNQMZ BT BO iFYDFTT TFBUTu NFBTVSF 3FDBMM UIBU &(   ಓ 4  7 ๞  *O B HJWFO FMFDUJPO XF PCTFSWF &(  4๞๞ 7๞
 5IF FGàDJFODZ HBQ DBO CF DPNQVUFE CZ OPUJOH IPX GBS UIF PCTFSWFE 4 MJFT BCPWF PS CFMPX UIF PSBOHF MJOF JO 'JHVSF 
" QPTJUJWF &( NFBOT iFYDFTTu TFBUT GPS QBSUZ " SFMBUJWF UP B [FSP FGàDJFODZ HBQ TUBOEBSE HJWFO UIF PCTFSWFE 7 JO UIBU FMFDUJPO DPOWFSTFMZ B OFHBUJWF &( NFBO B EFàDJU JO TFBUT GPS QBSUZ " SFMBUJWF UP B [FSP FGàDJFODZ HBQ TUBOEBSE HJWFO UIF PCTFSWFE 7
 4UBUF MFHJTMBUJWF FMFDUJPOT 
8F FTUJNBUF UIF FGàDJFODZ HBQ JO TUBUF MFHJTMBUJWF FMFDUJPOT PWFS B MBSHF TFU PG TUBUFT BOE EJTUSJDUJOH QMBOT DPWFSJOH UIF QFSJPE  UP  8F CFHJO UIF BOBMZTJT JO  GPS UXP QSJNBSZ SFBTPOT B
 TUBUF MFHJTMBUJWF FMFDUJPO SFUVSOT BSF IBSEFS UP BDRVJSF QSJPS UP UIF NJET BOE OPU QBSU PG UIF MBSHF DBOPOJDBM EBUB DPMMFDUJPO XF SFMZ PO TFF CFMPX
 BOE C
 EJTUSJDUJOH QMBOT BOE TFRVFODFT PG FMFDUJPOT GSPN  POXBSET DBO CF SFBTPOBCMZ DPOTJEFSFE UP CF GSPN UIF QPTUNBMBQQPSUJPONFOU FSB
'PS FBDI FMFDUJPO XF SFDPWFS BO FTUJNBUF PG UIF FGàDJFODZ HBQ CBTFE PO UIF FMFDUJPO SFTVMUT BDUVBMMZ PCTFSWFE JO UIBU FMFDUJPO 5P EP UIJT * DPNQVUF UXP RVBOUJUJFT GPS FBDI FMFDUJPO
 7 UIF TUBUFXJEF TIBSF PG UIF UXPQBSUZ WPUF GPS %FNPDSBUJD DBOEJEBUFT GPSNFE CZ BWFSBHJOH UIF EJTUSJDUMFWFM FMFDUJPO SFTVMUT WJ UIF %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF JO EJTUSJDU J
 JO TFBUT XPO CZ NBKPS QBSUZ DBOEJ EBUFT JODMVEJOH VODPOUFTUFE TFBUT BOE


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 22 of 76
 4 UIF %FNPDSBUJD TIBSF PG TFBUT XPO CZ NBKPS QBSUJFT 3FDBMM UIBU UIFTF RVBOUJUJFT BSF UIF JOQVUT SFRVJSFE XIFO DPNQVUJOH UIF FGàDJFODZ HBQ FRVBUJPO 

5IF BOBMZTJT UIBU GPMMPXT SFMJFT PO B EBUB TFU XJEFMZ VTFE JO QPMJUJDBM TDJFODF BOE GSFFMZ BWBJMBCMF GSPN UIF *OUFS6OJWFSTJUZ $POTPSUJVN GPS 1PMJUJDBM BOE 4PDJBM 3FTFBSDI *$143 TUVEZ OVNCFS 
 5IF SFMFBTF PG UIF EBUB * VUJMJ[F DPWFST TUBUF MFHJTMBUJWF FMFDUJPO SFTVMUT GSPN  UP  VQEBUFE CZ ,BSM ,MBSOFS *O EJBOB 4UBUF 6OJWFSTJUZ BOE )BSWBSE 6OJWFSTJUZ
 * TVCTFU UIF PSJHJOBM EBUB TFU UP HFOFSBM FMFDUJPO SFTVMUT TJODF  JO TUBUFT XIPTF MPXFS IPVTFT BSF FMFDUFE WJB TJOHMFNFNCFS EJTUSJDUT PS XIFSF TJOHMFNFNCFS EJTUSJDUT BSF UIF OPSN .VMUJ NFNCFS EJTUSJDUT iXJUI QPTJUJPOTu BSF USFBUFE BT JG UIFZ BSF TJOHMFNFNCFS EJT USJDUT
'JHVSF  QSPWJEFT B HSBQIJDBM EFQJDUJPO PG UIF FMFDUJPOT UIBU TBUJTGZ UIF TFMFD UJPO DSJUFSJB EFTDSJCFE BCPWF
r "SJ[POB *EBIP -PVJTJBOB .BSZMBOE /FCSBTLB /FX )BNQTIJSF /FX +FSTFZ /PSUI %BLPUB BOE 4PVUI %BLPUB BMM ESPQ PVU PG UIF BOBMZTJT FOUJSFMZ CFDBVTF PG FYDFFEJOHMZ IJHI SBUFT PG VODPOUFTUFE SBDFT VTJOH NVMUJNFNCFS EJTUSJDUT OPOQBSUJTBO FMFDUJPOT PS UIF VTF PG B SVOPGG TZTUFN -PVJTJBOB

r "MBTLB )BXBJJ *MMJOPJT *OEJBOB ,FOUVDLZ .BJOF .JOOFTPUB .POUBOB /PSUI $BSPMJOB 7FSNPOU 7JSHJOJB 8FTU 7JSHJOJB BOE 8ZPNJOH EP OPU TVQQMZ EBUB PWFS UIF FOUJSF  TQBO UIJT JT TPNFUJNFT EVF UP FBSMJFS FMFDUJPOT CFJOH TVCKFDU UP FYDFFEJOHMZ IJHI SBUFT PG VODPOUFTUFEOFTT UIF VTF PG NVMUJNFNCFS EJTUSJDUT PS OPOQBSUJTBO FMFDUJPOT
r "MBCBNB BOE .JTTJTTJQQJ IBWF GPVSZFBS UFSNT JO UIFJS MPXFS IPVTFT DPO USJCVUJOH EBUB BU POMZ IBMG UIF SBUF PG UIF WBTU CVML PG TUBUFT XJUI UXPZFBS MFHJTMBUJWF UFSNT
r 5XFOUZUISFF TUBUFT TVQQMZ EBUB FWFSZ UXP ZFBST GSPN  UP  JODMVE JOH .JDIJHBO BOE 8JTDPOTJO
r %BUB JT NPSF BCVOEBOU JO SFDFOU EFDBEFT 'PS UIF QFSJPE  UP   TUBUFT DPOUSJCVUF EBUB UP UIF BOBMZTJT BU UXP PS GPVS ZFBS JOUFSWBMT
*O TVNNBSZ UIF EBUB BWBJMBCMF GPS BOBMZTJT TQBO  EJTUSJDUMFWFM TUBUF MFHJTMBUJWF DPOUFTUT GSPN  FMFDUJPOT BDSPTT  TUBUFT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 23 of 76
Wyoming WeWst iVscirogninsiina WashViinrggitnoina
VermUotanht TenneTessxeaes South Dakota South Carolina PRehnondseyIlsvlaannida
Oregon Oklahoma
Ohio North Dakota North Carolina
New York NNeewwMJeerxsiecoy New HaNmeNbpersvahasidkreaa
Montana MiMssiissssoipuprii MMinicnheisgoatna MassMacahMruyslaaeinnttdes
LKoeunistuiacnkay Kansas IndIioawnaa Illinois Idaho Hawaii Georgia
DeFlalowraidrea Connecticut
Colorado CAarlkifaonrnsaias AlAaArbilzaaosmnkaaa
1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014
'JHVSF   TUBUF MFHJTMBUJWF FMFDUJPOT BWBJMBCMF GPS BOBMZTJT  CZ TUBUF


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 24 of 76
 (SPVQJOH FMFDUJPOT JOUP SFEJTUSJDUJOH QMBOT
%JTUSJDUJOH QMBOT SFNBJO JO QMBDF GPS TFRVFODFT PG FMFDUJPOT "O JNQPSUBOU DPNQPOFOU PG NZ BOBMZTJT JOWPMWFT USBDLJOH UIF FGàDJFODZ HBQ BDSPTT B TFSJFT PG FMFDUJPOT IFME VOEFS UIF TBNF EJTUSJDUJOH QMBO " LFZ RVFTUJPO JT IPX NVDI WBSJBUJPO JO UIF &( EP XF PCTFSWF XJUIJO EJTUSJDUJOH QMBOT WFSTVT WBSJBUJPO JO UIF &( CFUXFFO EJTUSJDUJOH QMBOT
5P UIF FYUFOU UIBU UIF &( JT B GFBUVSF PG B EJTUSJDUJOH QMBO QFS TF XF TIPVME PCTFSWF B TNBMM BNPVOU PG XJUIJOQMBO WBSJBUJPO SFMBUJWF UP CFUXFFO QMBO WBSJB UJPO 5P QFSGPSN UIJT BOBMZTJT XF NVTU HSPVQ TFRVFODFT PG FMFDUJPOT XJUIJO TUBUFT CZ UIF EJTUSJDUJOH QMBO JO QMBDF BU UIF UJNF
4UFQIBOPQPMPVT BOE .D(IFF 
 QSPWJEF B VOJRVF JEFOUJàFS GPS UIF EJT USJDUJOH QMBO JO QMBDF GPS FBDI TUBUF MFHJTMBUJWF FMFDUJPO GPS XIJDI * BEPQU IFSF
'JHVSF  EJTQMBZT IPX UIF FMFDUJPOT BWBJMBCMF GPS BOBMZTJT HSPVQ CZ EJTUSJDUJOH QMBO %JTUSJDUT BSF UZQJDBMMZ SFESBXO BGUFS FBDI EFDFOOJBM DFOTVT UIF àSTU FMFD UJPO DPOEVDUFE VOEFS OFX EJTUSJDU CPVOEBSJFT JT PGUFO UIF iu FMFDUJPO   FUD
 0DDBTJPOBMMZ XF TFF KVTU POF FMFDUJPO VOEFS B QMBO FYBNQMFT JODMVEF "MBCBNB  $BMJGPSOJB )BXBJJ  5FOOFTTFF  0IJP  4PVUI $BSPMJOB  /PSUI $BSPMJOB  BOE 4PVUI $BSPMJOB 
"MBTLB ,FOUVDLZ 1FOOTZMWBOJB BOE 5FYBT IFME KVTU POF FMFDUJPO VOEFS UIFJS SFTQFDUJWF EJTUSJDUJOH QMBOT BEPQUFE BGUFS UIF  $FOTVT *O FBDI PG UIPTF TUBUFT B EJGGFSFOU QMBO XBT JO QMBDF GPS  TUBUF MFHJTMBUJWF FMFDUJPOT "MBCBNBT TUBUF MFHJTMBUVSF IBT B GPVS ZFBS UFSN BOE XF PCTFSWF POMZ UIF  FMFDUJPO VOEFS JUT QPTU QMBO 5IF MBTU FMFDUJPO GSPN .JTTJTTJQQJ XBT JO  BOE XBT IFME VOEFS UIF QMBO JO QMBDF GPS JUT  BOE  FMFDUJPOT
 6ODPOUFTUFE SBDFT
6ODPOUFTUFE SBDFT BSF DPNNPO JO TUBUF MFHJTMBUJWF FMFDUJPOT BOE BSF FWFO UIF OPSN JO TPNF TUBUFT 'PS  PG UIF EJTUSJDUMFWFM SFTVMUT JO UIJT BOBMZTJT JU JTOU QPTTJCMF UP EJSFDUMZ DPNQVUF B UXPQBSUZ WPUF TIBSF WJ
 FJUIFS CFDBVTF UIF TFBU XBT VODPOUFTUFE PS OPU DPOUFTUFE CZ CPUI B %FNPDSBUJD BOE 3FQVCMJDBO DBOEJEBUF PS JO B UJOZ IBOEGVM PG DBTFT
 UIF EBUB BSF NJTTJOH
*O TPNF TUBUFT GPS TPNF FMFDUJPOT UIF QSPQPSUJPO PG VODPOUFTUFE SBDFT JT TP IJHI UIBU XF ESPQ UIF FMFDUJPO GSPN UIF BOBMZTJT "T OPUFE FBSMJFS FYBNQMFT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 25 of 76
Wyoming WeWst iVscirogninsiina WashViinrggitnoina
VermUotanht TenneTessxeaes South Dakota South Carolina PRehnondseyIlsvlaannida
Oregon Oklahoma
Ohio North Dakota North Carolina
New York NNeewwMJeerxsiecoy New HamNpesvhaidrea
Nebraska Montana MiMssiissssoipuprii MasMsMMaicnaihcnruhyeslisageonatttndas
Maine LKoeuKniastuniacsnkaays
IndIioawnaa Illinois Idaho Hawaii Georgia DeFlalowraidrea Connecticut Colorado CAarlkifaonrnsaias AArilzaosnkaa Alabama
1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014
'JHVSF   TUBUF MFHJTMBUJWF FMFDUJPOT BWBJMBCMF GPS BOBMZTJT  CZ TUBUF HSPVQFE CZ EJTUSJDUJOH QMBO IPSJ[POUBM MJOF



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 26 of 76
JODMVEF "SLBOTBT FMFDUJPOT QSJPS UP  BOE 4PVUI $BSPMJOB JO  &WFO XJUI UIFTF FMFDUJPOT ESPQQFE GSPN UIF BOBMZTJT UIF FYUFOU PG VODPOUFTU
FEOFTT JO UIF SFNBJOJOH TFU PG TUBUF MFHJTMBUJWF FMFDUJPO SFTVMUT JT UPP MBSHF UP CF JHOPSFE 0G UIF SFNBJOJOH FMFDUJPOT  IBWF NJTTJOH UXPQBSUZ SFTVMUT JO BU MFBTU IBMG PG UIF EJTUSJDUT
" HSBQIJDBM TVNNBSZ PG UIF QSFWBMFODF PG VODPOUFTUFE EJTUSJDUT BQQFBST JO 'JHVSF  TIPXJOH UIF QFSDFOUBHF PG EJTUSJDUT XJUIPVU %FNPDSBUJD BOE 3FQVCMJ DBO WPUF DPVOUT CZ FMFDUJPO BOE CZ TUBUF 6ODPOUFTUFE SBDFT BSF UIF OPSN JO B OVNCFS PG 4PVUIFSO TUBUFT FH (FPSHJB 4PVUI $BSPMJOB .JTTJTTJQQJ "SLBOTBT 5FYBT "MBCBNB 7JSHJOJB ,FOUVDLZ BOE 5FOOFTTFF SFDPSE SBUFT PG VODPOUFTUFE OFTT UIBU TFMEPN JG FWFS ESPQ CFMPX  GPS UIF QFSJPE DPWFSFE CZ UIJT BOBMZTJT 8ZPNJOH BMTP SFDPSET B IJHI QSPQPSUJPO PG EJTUSJDUT UIBU EP OPU IBWF %FNPDSBUJD WFSTVT 3FQVCMJDBO DPOUFTUT 4UBUFT UIBU MFBO %FNPDSBUJD BMTP IBWF IJHI MFWFMT PG VODPOUFTUFEOFTT UPP TFF 3IPEF *TMBOE .BTTBDIVTFUUT *MMJOPJT BOE JO SFDFOU EFDBEFT 1FOOTZMWBOJB
.JDIJHBO BOE .JOOFTPUB BSF BNPOH UIF TUBUFT XJUI UIF MPXFTU MFWFMT PG VO DPOUFTUFE EJTUSJDUT JO UIFJS TUBUF MFHJTMBUJWF FMFDUJPOT 0WFS UIF TFU PG  TUBUF MFHJTMBUJWF FMFDUJPOT XF FYBNJOF UIFSF BSF KVTU UISFF JOTUBODFT PG FMFDUJPOT XJUI %FNPDSBUT BOE 3FQVCMJDBOT SVOOJOH DBOEJEBUFT JO FWFSZ EJTUSJDU .JDIJHBO TVQ QMJFT UXP PG UIFTF DBTFT  BOE 
 BOE .JOOFTPUB UIF PUIFS 

 *NQVUBUJPOT GPS 6ODPOUFTUFE 3BDFT
4UFQIBOPQPMPVT BOE .D(IFF 
 OPUF UIF QSFWBMFODF PG VODPOUFTUFE SBDFT BOE SFQPSU VTJOH B TUBUJTUJDBM NPEFM UP JNQVUF WPUF TIBSFT UP VODPOUFTUFE EJTUSJDUT 5IFZ XSJUF
8F TUSPOHMZ EJTDPVSBHF BOBMZTUT GSPN FJUIFS ESPQQJOH VODPOUFTUFE SBDFT GSPN UIF DPNQVUBUJPO PS USFBUJOH UIFN BT JG UIFZ QSPEVDFE VOBO JNPVT TVQQPSU GPS B QBSUZ 5IF GPSNFS BQQSPBDI FMJNJOBUFT JNQPSUBOU JOGPSNBUJPO BCPVU B QMBO XIJMF UIF MBUUFS BTTVNFT UIBU DPFSDFE WPUFT BDDVSBUFMZ SFáFDU QPMJUJDBM TVQQPSU
* DPODVS XJUI UIJT BEWJDF VUJMJ[JOH BO JNQVUBUJPO TUSBUFHZ GPS VODPOUFTUFE EJTUSJDUT XJUI UXP EJTUJODU TUBUJTUJDBM NPEFMT QSFEJDUJOH %FNPDSBUJD UXPQBSUZ


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 27 of 76

Percent single-member districts without D and R candidates/vote counts, by state & election

1980 1990 2000 2010

1980 1990 2000 2010

MA

AR

MS

SC

GA

75

50

25

0

TN

WY

KY

VA

AL

TX

75

50

25

0

MO

RI

NM

NC

OK

FL

75

50

25

0

WV

KS

DE

IN

IL

VT

75

50

25

0

MT

IA

HI

PA

WI

AK

75

50

25

0

NY

WA

CT

NV

UT

CO

75

50

25

0

MI

MN

CA

OH

OR

ME

75

50

25

0

1980 1990 2000 2010

1980 1990 2000 2010

1980 1990 2000 2010

'JHVSF  1FSDFOUBHF PG EJTUSJDUT NJTTJOH UXPQBSUZ WPUF TIBSFT CZ FMFDUJPO JO  TUBUF MFHJTMBUJWF FMFDUJPOT  .JTTJOH EBUB JT BMNPTU BMXBZT EVF UP EJTUSJDUT CFJOH VODPOUFTUFE CZ CPUI NBKPS QBSUJFT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 28 of 76
WPUF TIBSF JO TUBUF MFHJTMBUJWF EJTUSJDUT WJ

 *NQVUBUJPO NPEFM  QSFTJEFOUJBM WPUF TIBSFT
5IF àSTU JNQVUBUJPO NPEFM SFMJFT PO QSFTJEFOUJBM FMFDUJPO SFUVSOT SFQPSUFE BU UIF MFWFM PG TUBUF MFHJTMBUJWF EJTUSJDUT 1SFTJEFOUJBM FMFDUJPO SFUVSOT BSF FYDFMMFOU QSFEJDUPST PG TUBUF MFHJTMBUJWF FMFDUJPO PVUDPNFT BOE PCTFSWFE FWFO XIFO TUBUF MFHJTMBUJWF FMFDUJPOT BSF VODPOUFTUFE * àU B TFSJFT PG MJOFBS SFHSFTTJPOT PG WJ PO UIF %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF GPS QSFTJEFOU JO EJTUSJDU J BT SFDPSEFE JO UIF NPTU UFNQPSBMMZQSPYJNBUF QSFTJEFOUJBM FMFDUJPO GPS XIJDI EBUB JT BWBJMBCMF BOE GPS XIJDI UIF DVSSFOU FMFDUJPOT EJTUSJDUJOH QMBO XBT JO QMBDF TFQBSBUF TMPQFT BOE JOUFSDFQUT BSF FTUJNBUFE EFQFOEJOH PO UIF JODVNCFODZ TUBUVT PG EJTUSJDU J %FNPDSBUJD 0QFO0UIFS 3FQVCMJDBO

5IF NPEFM BMTP FNCPEJFT UIF GPMMPXJOH BTTVNQUJPOT JO HFOFSBUJOH JNQVUB UJPOT GPS VOPCTFSWFE WPUF TIBSFT JO VODPOUFTUFE EJTUSJDUT *O EJTUSJDUT XIFSF B 3FQVCMJDBO JODVNCFOU SBO VOPQQPTFE XF BTTVNF UIBU UIF %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF XPVME IBWF CFFO MFTT UIBO  DPOWFSTFMZ XIFSF %FNP DSBUJD JODVNCFOUT SBO VOPQQPTFE XF BTTVNF UIBU UIF %FNPDSBUJD TIBSF PG UIF WPUF XPVME IBWF CFFO HSFBUFS UIBO 
*O NPTU TUBUFT UIF BOBMZTJT QSFEJDUT  BOE  TUBUF MFHJTMBUJWF FMFDUJPO SFTVMUT WJ VTJOH  QSFTJEFOUJBM WPUF TIBSFT   BOE  WJ JT SFHSFTTFE PO  QSFTJEFOUJBM WPUF TIBSFT BOE TP PO 4PNF DBSF JT OFFEFE NBUDIJOH TUBUF BOE QSFTJEFOUJBM FMFDUJPO SFTVMUT JO TUBUFT UIBU IPME UIFJS TUBUF MFHJTMBUJWF FMFDUJPOT JO PEEOVNCFSFE ZFBST PS XIFSF SFEJTUSJDUJOH JOUFSWFOFT *O B TNBMM OVNCFS PG DBTFT QSFTJEFOUJBM FMFDUJPO SFUVSOT BSF OPU BWBJMBCMF PS BSF SFDPSEFE XJUI EJTUSJDU JEFOUJàFST UIBU DBOU CF NBUDIFE JO UIF TUBUF MFHJTMBUJWF FMFDUJPOT EBUB 8F MBDL EBUB PO QSFTJEFOUJBM FMFDUJPO SFTVMUT CZ TUBUF MFHJTMBUJWF EJTUSJDU QSJPS UP  TP  JT UIF FBSMJFTU FMFDUJPO XJUI XIJDI XF DBO NBUDI TUBUF MFHJTMBUJWF FMFDUJPO SFTVMUT UP QSFTJEFOUJBM FMFDUJPO SFTVMUT BU UIF EJTUSJDU MFWFM
5IF JNQVUBUJPO NPEFM HFOFSBMMZ àUT XFMM "DSPTT UIF  FMFDUJPOT UIF NFEJBO S TUBUJTUJD JT  5IF DBTFT àUUJOH MFTT XFMM JODMVEF 7FSNPOU JO  S  
 XJUI SFMBUJWFMZ GFX DPOUFTUFE TFBUT BOE NVMUJNFNCFS EJTUSJDUT XJUI QPTJUJPOT
8F FYBNJOF UIF QFSGPSNBODF PG UIF JNQVUBUJPO NPEFM JO B TFSJFT PG HSBQIT CFMPX GPS TJY TFUT PG FMFDUJPOT 8JTDPOTJO JO  BOE  .JDIJHBO JO 


r2

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 29 of 76
1.0 0.9 0.8 0.7 0.6 0.5 0.4 0.3
1991 1994 1997 2000 2003 2006 2009 2012
'JHVSF  %JTUSJCVUJPO PG S TUBUJTUJDT SFHSFTTJPOT PG %FNPDSBUJD TIBSF PG UXP QBSUZ WPUF JO TUBUF MFHJTMBUJWF FMFDUJPO PVUDPNFT PO %FNPDSBUJD TIBSF PG UIF UXP QBSUZ GPS QSFTJEFOU
XJUI OP VODPOUFTUFE EJTUSJDUT
 4PVUI $BSPMJOB JO  XJUI UIF IJHIFTU QSP QPSUJPO PG VODPOUFTUFE TFBUT JO UIF  EBUB
 7JSHJOJB JO  BOE 8ZPNJOH JO  UIF MBUUFS UXP HFOFSBUJOH FYUSFNFMZ MBSHF OFHBUJWF WBMVFT PG UIF FGàDJFODZ HBQ
 7FSUJDBM MJOFT JOEJDBUF  DPOàEFODF JOUFSWBMT BSPVOE JNQVUFE WBMVFT GPS UIF %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF JO TUBUF MFHJTMBUJWF FMFDUJPOT WFSUJDBM BYJT
 4FQBSBUF TMPQFT BOE JOUFSDFQUT BSF àU GPS FBDI JODVNCFODZ UZQF /PUF BMTP UIBU UIF JNQVUFE EBUB BMNPTU BMXBZT MJF PO UIF SFHSFTTJPO MJOFT
*NQVUBUJPOT GPS VODPOUFTUFE EJTUSJDUT BSF BDDPNQBOJFE CZ VODFSUBJOUZ "M UIPVHI UIF JNQVUBUJPO NPEFMT HFOFSBMMZ àU XFMM MJLF BOZ SFBMJTUJD NPEFM UIFZ QSPWJEFT MFTT UIBO B QFSGFDU àU UP UIF EBUB /PUF UPP UIBU JO BOZ HJWFO FMFDUJPO UIFSF JT POMZ B àOJUF BNPVOU PG EBUB BOE IFODF B MJNJU UP UIF QSFDJTJPO XJUI XIJDI XF DBO NBLF JOGFSFODFT BCPVU VOPCTFSWFE WPUF TIBSFT CBTFE PO UIF SFMBUJPOTIJQ CFUXFFO PCTFSWFE WPUF TIBSFT BOE QSFTJEFOUJBM WPUF TIBSFT
6ODFSUBJOUZ JO UIF JNQVUBUJPOT GPS W JO VODPOUFTUFE EJTUSJDUT HFOFSBUFT VODFS UBJOUZ JO iEPXOTUSFBNu RVBOUJUJFT PG JOUFSFTU TVDI BT TUBUFXJEF %FNPDSBUJD WPUF TIBSF 7 BOE UIF FGàDJFODZ HBQ NFBTVSF &( 5IJT JT LFZ HJWFO UIF GBDU UIBU VO DPOUFTUFEOFTT JT TP QFSWBTJWF JO UIFTF EBUB 8F XBOU BOZ DPODMVTJPOT BCPVU UIF FGàDJFODZ HBQT QSPQFSUJFT PS JOGFSFODFT BCPVU QBSUJDVMBS MFWFMT PG UIF FGàDJFODZ HBQ UP SFáFDU UIF VODFSUBJOUZ SFTVMUJOH GSPN JNQVUJOH WPUF TIBSFT JO VODPOUFTUFE EJTUSJDUT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 30 of 76

MI 2014 100

SC 2012

VA 2013

75

Democratic Share of Two-Party Vote

50

25
0 WI 2012
100
75

WI 2014

WY 2012

Incumbency Republican Open/Other Democratic

50

25

0 25 50 75 100 25 50 75 100 25 50 75 100
Democratic Share of Two-Party Presidential Vote

'JHVSF  3FHSFTTJPO NPEFM GPS JNQVUJOH VOPCTFSWFE WPUF TIBSFT JO  TFMFDUFE FMFDUJPOT 7FSUJDBM MJOFT JOEJDBUF  DPOàEFODF JOUFSWBMT BSPVOE JNQVUFE WBM VFT GPS UIF %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF JO TUBUF MFHJTMBUJWF FMFDUJPOT WFSUJDBM BYJT
 4FQBSBUF TMPQFT BOE JOUFSDFQUT BSF àU GPS FBDI JODVNCFODZ UZQF /PUF BMTP UIBU UIF JNQVUFE EBUB BMNPTU BMXBZT MJF PO UIF SFHSFTTJPO MJOFT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 31 of 76
 *NQVUBUJPO NPEFM 
8F SFMZ PO JNQVUBUJPOT CBTFE PO QSFTJEFOUJBM FMFDUJPO SFUVSOT XIFO UIFZ BSF BWBJMBCMF #VU QSFTJEFOUJBM WPUF JTOU BMXBZT BWBJMBCMF BU UIF MFWFM PG TUBUF MFH JTMBUJWF EJTUSJDUT OPU CFGPSF  JO UIJT BOBMZTJT
 5P IBOEMF UIFTF DBTFT XF SFMZ PO B TFDPOE JNQVUBUJPO QSPDFEVSF POF UIBU NPEFMT TFRVFODFT PG FMFDUJPO SFTVMUT PCTFSWFE VOEFS B SFEJTUSJDUJOH QMBO JOUFSQPMBUJOH VOPCTFSWFE %FNPDSBUJD WPUF TIBSFT HJWFO 
 QSFWJPVT BOE GVUVSF SFTVMUT GPS B HJWFO EJTUSJDU 
 TUBUFXJEF TXJOH JO B HJWFO TUBUF FMFDUJPO BOE 
 DIBOHF JO UIF JODVNCFODZ TUBUVT PG B HJWFO EJTUSJDU 5IJT NPEFM BMTP FNCPEJFT UIF BTTVNQUJPO UIBU VOPCTFSWFE WPUF TIBSFT XPVME OPOFUIFMFTT CF DPOTJTUFOU XJUI XIBU XF EJE PCTFSWF JO B HJWFO TFBU XIFSF B %FNPDSBU XJOT JO BO VODPOUFTUFE EJTUSJDU BOZ JNQVUBUJPO GPS W JO UIBU EJTUSJDU NVTU MJF BCPWF  BOE XIFSF B 3FQVCMJDBO XJOT BO VODPOUFTUFE EJTUSJDU BOZ JNQVUBUJPO GPS W NVTU MJF CFMPX 
 $PNCJOJOH UIF UXP TFUT PG JNQVUBUJPOT
8F OPX IBWF UXP TFUT PG JNQVUBUJPOT GPS VODPOUFTUFE EJTUSJDUT 
 VTJOH QSFT JEFOUJBM WPUF BT B CBTJT GPS JNQVUBUJPO XIFSF BWBJMBCMF  TUBUF MFHJTMBUJWF FMFD UJPOT GSPN  UP 
 BOE 
 UIF JNQVUBUJPO NPEFM UIBU SFMJFT PO UIF USBKFD UPSZ PG EJTUSJDU SFTVMUT PWFS UIF IJTUPSZ PG B EJTUSJDUJOH QMBO JODMVEJOH JODVNCFODZ BOE FTUJNBUFT PG TXJOH XIJDI TVQQMJFT JNQVUBUJPOT GPS VODPOUFTUFE EJTUSJDUT JO BMM ZFBST
8IFO UIFSF BSF OP VODPOUFTUFE EJTUSJDUT PCWJPVTMZ UIF UXP JNQVUBUJPOT NVTU BHSFF GPS UIF USJWJBM SFBTPO UIBU BSF OP JNQVUBUJPOT UP QFSGPSN "T UIF OVNCFS PG VODPOUFTUFE EJTUSJDUT SJTFT UIF JNQVUBUJPOT GSPN UIF UXP NPEFMT IBWF SPPN UP EJWFSHF 8IFSF UIF UXP TFUT PG JNQVUBUJPOT BSF BWBJMBCMF GPS B HJWFO FMFDUJPO FMFDUJPOT XIFSF QSFTJEFOUJBM WPUF TIBSFT CZ TUBUF MFHJTMBUJWF EJTUSJDUT BSF BWBJMBCMF
 XF HFOFSBMMZ TFF B IJHI MFWFM PG BHSFFNFOU CFUXFFO UIF UXP NFUIPET
5IF UXP TFUT PG JNQVUBUJPOT GPS 7 DPSSFMBUF BU  8JUI POMZ B GFX FYDFQUJPOT TFF 'JHVSF 
 UIF EJTDSFQBODJFT BSF HFOFSBMMZ TNBMM SFMBUJWF UP UIF VODFSUBJOUZ JO UIF JNQVUBUJPOT UIFNTFMWFT "T UIF QSPQPSUJPO PG EJTUSJDUT XJUI NJTTJOH EBUB JODSFBTFT DMFBSMZ UIF TDPQF GPS EJWFSHFODF CFUXFFO UIF UXP NPEFMT JODSFBTFT
5P SFJUFSBUF XF QSFGFS UIF JNQVUBUJPOT GSPN i.PEFM u CBTFE PO UIF SFHSFT TJPOT VUJMJ[JOH QSFTJEFOUJBM WPUF TIBSFT JO TUBUF MFHJTMBUJWF EJTUSJDUT BOE VTF UIFN


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 32 of 76 XIFOFWFS BWBJMBCMF JF GPS NPTU TUBUFT JO UIF BOBMZTJT UIF QFSJPE 
 8F POMZ SFMZ PO i.PEFM u XIFO QSFTJEFOUJBM WPUF TIBSFT BSF OPU BWBJMBCMF 8F NPEFM UIF EJGGFSFODF CFUXFFO UIF UXP TFUT PG JNQVUBUJPOT BEKVTUJOH UIF i.PEFM u JNQVUBUJPOT PG 7 UP CFUUFS NBUDI XIBU XF IBWF PCUBJOFE GSPN i.PEFM u IBE UIF OFDFTTBSZ QSFTJEFOUJBM WPUF TIBSFT CZ TUBUF MFHJTMBUJWF EJTUSJDU CFFO BWBJMBCMF


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 33 of 76

AL 1998

MS 2011 MA 2012

4

RI 20A1L22010

AL 1994

MS 2003

2

Model 1 minus Model 2

0

-2

UT 2002

TX 2012

WY 2014

WY 2002

WY 2008

WY 2012

0.0

0.2

0.4

0.6

0.8

Proportion of districts subject to imputation (uncontested)

'JHVSF  %JGGFSFODF CFUXFFO JNQVUBUJPOT GPS 7 CZ QSPQPSUJPO PG VODPOUFTUFE TFBUT 5IF àUUFE SFHSFTTJPO MJOF JT DPOTUSBJOFE UP SFTQFDU UIF DPOTUSBJOU UIBU UIF JNQVUBUJPOT NVTU DPJODJEF XIFO UIFSF BSF OP VODPOUFTUFE TFBUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 34 of 76
 4FBU BOE WPUF TIBSFT JO  TUBUF MFHJTMBUJWF FMFDUJPOT
"GUFS JNQVUBUJPOT GPS NJTTJOH EBUB FBDI FMFDUJPO HFOFSBUFT B TFBUTWPUFT 7 4
 QBJS *O 'JHVSF  XF QMPU BMM PG UIF 7 BOE 4 DPNCJOBUJPOT PWFS UIF  TUBUF FMFDUJPOT JO UIF BOBMZTJT 8F BMTP PWFSMBZ UIF TFBUTWPUF DVSWF DPSSFTQPOEJOH UP BO FGàDJFODZ HBQ PG [FSP 5IJT QSPWJEFT VT XJUI B DSVEF WJTVBM TFOTF PG IPX PGUFO XF TFF MBSHF EFQBSUVSFT GSPN UIF [FSP &( CFODINBSL
5IF IPSJ[POUBM MJOFT BSPVOE FBDI QMPUUFE QPJOU TIPX UIF VODFSUBJOUZ BTTPDJ BUFE XJUI FBDI FTUJNBUF PG 7 TUBUFXJEF %FNPDSBUJD UXPQBSUZ WPUF TIBSF
 HJWFO UIF JNQVUBUJPOT NBEF GPS VODPOUFTUFE BOE NJTTJOH EJTUSJDUMFWFM WPUF TIBSFT 6O DPOUFTUFE TFBUT EP OPU HFOFSBUF VODFSUBJOUZ XJUI SFTQFDU UP UIF QBSUZ XJOOJOH UIF TFBU BOE TP UIF SFTVMUJOH VODFSUBJOUZ JT XJUI SFTQFDU UP WPUF TIBSFT PO UIF IPSJ[POUBM BYJT JO 'JHVSF 
5IF FGàDJFODZ HBQ JO FBDI FMFDUJPO JT UIF WFSUJDBM EJTQMBDFNFOU PG FBDI QMPUUFE 7 4
 QPJOU GSPN UIF PSBOHF [FSPFGàDJFODZ HBQ MJOF JO 'JHVSF  6ODFSUBJOUZ BT UP UIF IPSJ[POUBM DPPSEJOBUF 7 EVF UP JNQVUBUJPOT GPS VODPOUFTUFE SBDFT
 HFOFSBUFT VODFSUBJOUZ JO EFUFSNJOJOH IPX GBS FBDI QPJOU MJFT BCPWF PS CFMPX UIF PSBOHF [FSP FGàDJFODZ HBQ CFODINBSL
 5IF FöDJFODZ HBQ CZ TUBUF BOE FMFDUJPO
8F OPX UVSO UP UIF DFOUFSQJFDF PG UIF BOBMZTJT BTTFTTJOH WBSJBUJPO JO UIF FGàDJFODZ HBQ BDSPTT EJTUSJDUJOH QMBOT
8F IBWF  FGàDJFODZ HBQ NFBTVSFT JO  TUBUFT TQBOOJOH  FMFDUJPO ZFBST 5IFTF BSF DPNQVUFE CZ TVCTUJUVUJOH FBDI TUBUF FMFDUJPOT FTUJNBUF PG 7 BOE UIF DPSSFTQPOEJOH PCTFSWFE TFBU TIBSF 4 JOUP FRVBUJPO 
'JHVSF  TIPXT UIF FGàDJFODZ HBQ FTUJNBUFT GPS FBDI TUBUF FMFDUJPO HSPVQFE CZ TUBUF BOE PSEFSFE CZ ZFBS WFSUJDBM MJOFT JOEJDBUF  DSFEJCMF JOUFSWBMT BSJTJOH GSPN UIF GBDU UIBU UIF JNQVUBUJPO NPEFM GPS VODPOUFTUFE TFBUT JOEVDFT VODFSUBJOUZ JO 7 BOE BOZ RVBOUJUZ EFQFOEJOH PO 7 TVDI BT &( SFDBMM FRVBUJPO 
 *O NBOZ DBTFT UIF VODFSUBJOUZ JO &( TUFNNJOH GSPN JNQVUBUJPO GPS VODPOUFTUFE TFBUT JT TNBMM SFMBUJWF UP WBSJBUJPO JO &( CPUI CFUXFFO BOE XJUIJO EJTUSJDUJOH QMBOT
8F PCTFSWF DPOTJEFSBCMF WBSJBUJPO JO UIF &( FTUJNBUFT BDSPTT TUBUFT BOE FMFD UJPOT 4PNF IJHIMJHIUT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 35 of 76

Democratic share of major party seat wins

40

50

60

70

100

100

90

90

80

80

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average district two-party vote

'JHVSF  %FNPDSBUJD TFBU TIBSFT 4
 BOE WPUF TIBSFT 7
 JO  TUBUF MFHJTMB UJWF FMFDUJPOT  JO  TUBUFT 4FBU TIBSFT BSF EFàOFE XJUI SFTQFDU UP TJOHMFNFNCFS EJTUSJDUT XPO CZ FJUIFS B 3FQVCMJDBO PS B %FNPDSBUJD DBOEJEBUF JODMVEJOH VODPOUFTUFE EJTUSJDUT 7PUF TIBSFT BSF EFàOFE BT UIF BWFSBHF PG EJTUSJDU MFWFM %FNPDSBUJD TIBSF PG UIF UXPQBSUZ WPUF JO UIF TBNF TFU PG EJTUSJDUT VTFE JO EFàOJOH TFBU TIBSFT )PSJ[POUBM MJOFT JOEJDBUF  DSFEJCMF JOUFSWBMT XJUI SFTQFDU UP 7 EVF UP VODFSUBJOUZ BSJTJOH GSPN JNQVUBUJPOT GPS EJTUSJDUMFWFM WPUF TIBSFT JO VODPOUFTUFE TFBUT 5IF PSBOHF MJOF TIPXT UIF TFBUTWPUFT SFMBUJPOTIJQ XF FYQFDU JG UIF FGàDJFODZ HBQ XFSF [FSP &MFDUJPOT CFMPX UIF PSBOHF MJOF IBWF &(   %FNPDSBUJD EJTBEWBOUBHF
 QPJOUT BCPWF UIF PSBOHF MJOF IBWF &(   %FNPDSBUJD BEWBOUBHF



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 36 of 76

Efficiency gap, by state and year

80 90 00 10

VT

WA

WI

0.2

0.1

0.0

-0.1

RI

SC

TN

80 90 00 10

WV

WY

TX

UT

NV

NY

OH

OK

OR

0.2

0.1

0.0

-0.1

MN

MO

MS

MT

NC

IN

KS

KY

MA

ME

0.2

0.1

0.0

-0.1

DE

FL

GA

HI

IA

AK

AL

AR

CA

CO

0.2

0.1

0.0

-0.1

VA 0.2 0.1 0.0 -0.1
PA
NM 0.2 0.1 0.0 -0.1
MI
IL 0.2 0.1 0.0 -0.1
CT

80 90 00 10

80 90 00 10

80 90 00 10

'JHVSF  &GàDJFODZ HBQ FTUJNBUFT JO  TUBUF MFHJTMBUJWF FMFDUJPOT  7FSUJDBM MJOFT DPWFS  DSFEJCMF JOUFSWBMT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 37 of 76
 FTUJNBUFT PG &( SBOHF GSPN ๞ UP  XJUI BO BWFSBHF WBMVF PG ๞
 5IF MPXFTU WBMVF ๞ JT GSPN %FMBXBSF JO  5IFSF XFSF  VODPO UFTUFE TFBUT JO UIF FMFDUJPO UP UIF  TFBU TUBUF MFHJTMBUVSF %FNPDSBUT XPO  TFBUT 4    
 * FTUJNBUF 7 UP CF  7JB FRVBUJPO  UIJT HFOFSBUFT &(  ๞ $POTJEFSBCMF VODFSUBJOUZ BDDPNQBOJFT UIJT FT UJNBUF HJWFO UIF MBSHF OVNCFS PG VODPOUFTUFE TFBUT 5IF  DSFEJCMF JOUFSWBM GPS 7 JT ๢  QFSDFOUBHF QPJOUT BOE UIF  DSFEJCMF JOUFSWBM GPS UIF BDDPNQBOZJOH &( FTUJNBUF JT ๢ 
 5IF IJHIFTU WBMVF PG &( JT  JT GSPN (FPSHJB JO  5IFSF XFSF  VODPOUFTUFE TFBUT JO UIF FMFDUJPO UP UIF  TFBU TUBUF MFHJTMBUVSF %FNPDSBUT XPO  TFBUT 4    
 * FTUJNBUF 7 UP CF  "HBJO VTJOH FRVBUJPO  UIJT HFOFSBUFT &(   $POTJEFSBCMF VODFSUBJOUZ BMTP BDDPNQBOJFT UIJT FTUJNBUF HJWFO UIF MBSHF OVNCFS PG VODPOUFTUFE TFBUT 5IF  DSFEJCMF JOUFSWBM GPS 7 JT ๢  QFSDFOUBHF QPJOUT BOE UIF  DSFEJCMF JOUFSWBM GPS UIF BDDPNQBOZJOH &( FTUJNBUF JT ๢  'JHVSF  DPOUSBTUT UIF TFBUT BOE WPUFT SFDPSEFE JO (FPSHJB BHBJOTU UIPTF GPS UIF FOUJSF EBUB TFU QVUUJOH (FPSHJBT MBSHF &( FTUJNBUFT JO DPOUFYU
 /FX :PSL IBT UIF MPXFTU NFEJBO &( FTUJNBUFT SBOHJOH GSPN  
 UP  
 4UBUFXJEF 7 SBOHFT GSPN  UP  CVU %FNPDSBUT POMZ XJO  
 UP  
 TFBUT JO UIF  TFBU TUBUF MFHJTMBUVSF TP 4 SBOHFT GSPN  UP  DPOTJEFSBCMZ CFMPX UIBU XFE FYQFDU UP TFF HJWFO UIF WPUF TIBSFT SFDPSEFE CZ %FNPDSBUT JG UIF FGàDJFODZ HBQ XFSF [FSP 4FF 'JHVSF 
 "SLBOTBT IBT UIF IJHIFTU NFEJBO &( TDPSF CZ TUBUF  TFF 'JHVSF 
 $POOFDUJDVU IBT UIF NFEJBO XJUIJOTUBUF NFEJBO &( TDPSF PG BQQSPYJ NBUFMZ [FSP 'JHVSF  TIPXT $POOFDUJDVUT TFBUT BOE WPUFT IBWF HFOFSBMMZ TUBZFE DMPTF UP UIF &(   CFODINBSL
 .JDIJHBO IBT UIF UIJSE MPXFTU NFEJBO &( TDPSFT CZ TUBUF TVSQBTTFE POMZ CZ /FX :PSL BOE 8ZPNJOH .JDIJHBOT &( TDPSFT SBOHF GSPN  
 UP  
 7 SBOHFT GSPN  UP  B àHVSF XF FTUJNBUF DPOà EFOUMZ HJWFO MPX BOE PDDBTJPOBMMZ FWFO [FSP MFWFMT PG VODPOUFTUFE EJTUSJDUT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 38 of 76
JO .JDIJHBO TUBUF MFHJTMBUJWF FMFDUJPOT :FU 4 SBOHFT GSPN  %FNPDSBUT XPO  PVU PG  TFBUT JO   BOE 
 UP  %FNPDSBUT XPO  PVU PG  TFBUT JO 
 4FF 'JHVSF 
 8JTDPOTJOT &( FTUJNBUFT SBOHF GSPN  
 UP  
 "MUIPVHI UIF &( FTUJNBUFT GPS 8* BSF OPU WFSZ MBSHF SFMBUJWF UP PUIFS TUBUFT JO PUIFS ZFBST 8JTDPOTJO IBT SFDPSEFE BO VOCSPLFO SVO PG OFHBUJWF &( FTUJNBUFT GSPN  UP  BOE SFDPSET UXP WFSZ MBSHF FTUJNBUFT PG UIF FGàDJFODZ HBQ JO FMFDUJPOT IFME VOEFS JUT DVSSFOU QMBO  
 BOE  
 *O TIPSU %FNPDSBUT BSF VOEFSQFSGPSNJOH JO TUBUF MFHJTMBUJWF FMFDUJPOT JO 8JTDPOTJO XJOOJOH GFXFS TFBUT UIBO B [FSP FGàDJFODZ HBQ CFODINBSL XPVME JNQMZ HJWFO UIFJS TUBUFXJEF MFWFM PG TVQQPSU 4FF 'JHVSF 
 "SF FöDJFODZ HBQ FTUJNBUFT TUBUJTUJDBMMZ TJHOJmDBOU
3FDBMM UIBU &(   NFBOT UIBU %FNPDSBUT BSF EJTBEWBOUBHFE XJUI SFMBUJWFMZ NPSF XBTUFE WPUFT UIBO 3FQVCMJDBOT DPOWFSTFMZ &(   NFBOT UIBU %FNPDSBUT BSF UIF CFOFàDJBSJFT PG BO FGàDJFODZ HBQ JO UIBU %FNPDSBUT IBWF GFXFS XBTUFE WPUFT UIBO 3FQVCMJDBOT #VU &( EPFT WBSZ GSPN FMFDUJPO UP FMFDUJPO FWFO XJUI UIF TBNF EJTUSJDUJOH QMBO JO QMBDF BOE &( JT BMNPTU BMXBZT OPU NFBTVSFE QFSGFDUMZ CVU JT FTUJNBUFE XJUI JNQVUBUJPOT GPS VODPOUFTUFE TFBUT
*O 'JHVSF  XF QMPU UIF JNQSFDJTJPO PG FBDI FGàDJFODZ HBQ FTUJNBUF UIF IBMG XJEUI PG JUT  DSFEJCMF JOUFSWBM
 BHBJOTU UIF FTUJNBUFE &( WBMVF JUTFMG 1PJOUT MZJOH JOTJEF UIF DPOFT IBWF &( FTUJNBUFT UIBU BSF TNBMM SFMBUJWF UP UIFJS DSFEJCMF JOUFSWBMT TVDI UIBU XF XPVME OPU EJTUJOHVJTI UIFN GSPN [FSP BU DPOWFOUJPOBM MFWFMT PG TUBUJTUJDBM TJHOJàDBODF /PU BMM &( FTUJNBUFT DBO CF EJTUJOHVJTIFE GSPN [FSP BU DPOWFOUJPOBM MFWFMT PG TUBUJTUJDBM TJHOJàDBODF OPS TIPVME UIFZ #VU NBOZ FTUJNBUFT PG UIF &( BSF VOBNCJHVPVTMZ OPO[FSP $SJUJDBMMZ UIF UXP NPTU SFDFOU 8JTDPOTJO &( FTUJNBUFT  JO   JO 
 BSF DMFBSMZ OPOOFHBUJWF MZ JOH GBS BXBZ GSPN UIF iDPOF PG BNCJHVJUZu TIPXO JO 'JHVSF  UIF  DSFEJCMF JOUFSWBM GPS UIF  FTUJNBUFT SVOT GSPN  UP  BOE GSPN  UP  GPS UIF  FTUJNBUF


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 39 of 76

Democratic seat shares by vote shares, 1972-2014: Georgia in red, 2014 solid point

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average District Two-Party Vote

'JHVSF  (FPSHJB %FNPDSBUJD TFBU TIBSF BOE BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPS SFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 40 of 76

Democratic seat shares by vote shares, 1972-2014: Arkansas in red, 2014 solid point

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average District Two-Party Vote

'JHVSF  "SLBOTBT %FNPDSBUJD TFBU TIBSF BOE BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPS SFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 41 of 76

Democratic seat shares by vote shares, 1972-2014: New York in red, 2014 solid point

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average District Two-Party Vote

'JHVSF  /FX :PSL %FNPDSBUJD TFBU TIBSF BOE BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPS SFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 42 of 76

Democratic seat shares by vote shares, 1972-2014: Connecticut in red, 2014 solid point

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average District Two-Party Vote

'JHVSF  $POOFDUJDVU %FNPDSBUJD TFBU TIBSF BOE BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPSSFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 43 of 76

Democratic seat shares by vote shares, 1972-2014: Michigan in red, 2014 solid point

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average District Two-Party Vote

'JHVSF  .JDIJHBO %FNPDSBUJD TFBU TIBSF BOE BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPS SFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 44 of 76

Democratic seat shares by vote shares, 1972-2014: Wisconsin in red, 2014 solid point

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

40

40

30

30

20

20

40

50

60

70

Average District Two-Party Vote

'JHVSF  8JTDPOTJO %FNPDSBUJD TFBU TIBSF BOE BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPS SFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 45 of 76

0.075

1972-1991

0.050

Half-width of 95% credible interval

0.025

0.000 0.075

1992-2014

0.050

0.025

0.000

-0.2

-0.1

0.0

0.1

0.2

Efficiency gap

'JHVSF  6ODFSUBJOUZ JO UIF FGàDJFODZ HBQ BHBJOTU UIF &( FTUJNBUF JUTFMG 5IF WFSUJDBM BYJT JT UIF IBMGXJEUI PG UIF  DSFEJCMF JOUFSWBM GPS FBDI &( FTUJNBUF QMPUUFE BHBJOTU UIF IPSJ[POUBM BYJT
 QPJOUT MZJOH JOTJEF UIF DPOFT IBWF &( FTUJ NBUFT UIBU BSF TNBMM SFMBUJWF UP UIFJS DSFEJCMF JOUFSWBMT TVDI UIBU XF XPVME OPU EJTUJOHVJTI UIFN GSPN [FSP BU DPOWFOUJPOBM MFWFMT PG TUBUJTUJDBM TJHOJàDBODF &( FTUJNBUFT GSPN 8JTDPOTJO JO  BOE  BSF TIPXO BT SFE QPJOUT JO UIF MPXFS QBOFM /PUF UIF HSFBUFS QSFWBMFODF PG MBSHF OFHBUJWF BOE QSFDJTFMZ FTUJNBUFE &( NFBTVSFT JO SFDFOU EFDBEFT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 46 of 76
 0WFSUJNF DIBOHF JO UIF FöDJFODZ HBQ
"SF MBSHF WBMVFT PG UIF FGàDJFODZ HBQ MFTT MJLFMZ UP CF PCTFSWFE JO SFDFOU EFDBEFT 5IJT JT SFMFWBOU UP BOZ EJTDVTTJPO PG B TUBOEBSE CZ XIJDI UP BTTFTT SFEJTUSJDUJOH QMBOT *G SFDFOU EFDBEFT IBWF HFOFSBMMZ TFFO TNBMMFS WBMVFT PG UIF FGàDJFODZ HBQ SFMBUJWF UP QBTU EFDBEFT UIFO UIJT NJHIU CF JOGPSNBUJWF BT UP IPX XF TIPVME BTTFTT DPOUFNQPSBSZ EJTUSJDUJOH QMBOT BOE UIFJS DPSSFTQPOEJOH WBMVFT PG UIF &(
'JHVSF  QMPUT &( FTUJNBUFT PWFS UJNF PWFSMBZJOH FTUJNBUFT PG UIF TNPPUIFE XFJHIUFE RVBOUJMFT UI UI BOE UI
 PG UIF &( NFBTVSFT UIF XFJHIUT DBQUVSF UIF VODFSUBJOUZ BDDPNQBOZJOH FBDI FTUJNBUF PG UIF &(
 5IF EJTUSJCVUJPO PG &( NFBTVSFT JO UIF T BOE T BQQFBSFE UP TMJHIUMZ GBWPS %FNPDSBUT BCPVU UXPUIJSET PG BMM &( NFBTVSFT JO UIJT QFSJPE XFSF QPTJUJWF 5IF EJTUSJCVUJPO PG &( NFBTVSFT USFOET JO B QSP3FQVCMJDBO EJSFDUJPO UISPVHI UIF T TVDI UIBU CZ UIF T &( NFBTVSFT XFSF NPSF MJLFMZ UP CF OFHBUJWF 3FQVCMJDBO FGàDJFODZ BEWBOUBHF PWFS %FNPDSBUT
 TFF 'JHVSF 
5IFSF JT TPNF FWJEFODF UIBU UIF  SPVOE PG SFEJTUSJDUJOH IBT HFOFSBUFE BO JODSFBTF JO UIF NBHOJUVEF PG UIF FGàDJFODZ HBQ JO TUBUF MFHJTMBUJWF FMFDUJPOT 'PS NPTU PG UIF QFSJPE VOEFS TUVEZ UIFSF TFFNT UP CF OP EJTUJODU USFOE JO UIF NBHOJ UVEFT PG UIF FGàDJFODZ HBQ PWFS UJNF TFF 'JHVSF  5IF NFEJBO BCTPMVUF WBMVF PG UIF FGàDJFODZ HBQ IBT TUBZFE BSPVOE  PWFS NVDI PG UIF QFSJPE TQBOOFE CZ UIJT BOBMZTJT FMFDUJPOT TJODF  BSF QSPEVDJOH IJHIFS MFWFMT PG &( JO NBHOJUVEF
*U JT BMTP JOUFSFTUJOH UP OPUF UIBU UIF FTUJNBUF PG UIF UI QFSDFOUJMF PG UIF EJTUSJ CVUJPO PG &( NBHOJUVEFT KVNQT NBSLFEMZ BGUFS  TVHHFTUJOH UIBU EJTUSJDUJOH QMBOT FOBDUFE BGUFS UIF  DFOTVT BSF TZTUFNBUJDBMMZ NPSF HFSSZNBOEFSFE UIBO JO QSFWJPVT EFDBEFT 0G UIF BMNPTU  &( FTUJNBUFT JO UIF BOBMZTJT TQBOOJOH  ZFBST PG FMFDUJPOT UIF MBSHFTU OFHBUJWF FTUJNBUFT BO FGàDJFODZ HBQ EJTBEWBOUBH JOH %FNPDSBUT
 BSF NPSF MJLFMZ UP CF SFDPSEFE JO UIF TIPSU TFSJFT PG FMFDUJPOT BGUFS  5IFTF JODMVEF "MBCBNB JO  
 'MPSJEB JO  
 7JSHJOJB JO  
 /PSUI $BSPMJOB JO  
 BOE .JDIJHBO JO  
 UIFTF àWF FMFDUJPOT BSF BNPOH UIF  MFBTU GBWPSBCMF UP %FNPDSBUT XF PCTFSWF JO UIF FOUJSF TFU PG FMFDUJPOT "NPOH UIF  NPTU QSP%FNPDSBUJD &( TDPSFT OPOF XFSF SFDPSEFE BGUFS  5IF NPTU GBWPSBCMF FMFDUJPO UP %FNPDSBUT JO UFSNT PG &( TJODF  JT UIF  FMFDUJPO JO 3IPEF *TMBOE &(  
 XIJDI JT POMZ UIF UI MBSHFTU QSP%FNPDSBUJD
 &( JO UIF FOUJSF BOBMZTJT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 47 of 76

Efficiency gap

0.2 0.1 0.0 -0.1

1970

1980

1990

2000

2010

'JHVSF  &GàDJFODZ HBQ FTUJNBUFT PWFS UJNF 5IF MJOFT BSF TNPPUIFE FTUJNBUFT PG UIF UI UI BOE UI RVBOUJMFT PG UIF FGàDJFODZ HBQ NFBTVSFT XFJHIUFE CZ UIF QSFDJTJPO PG FBDI &( NFBTVSF



Pr(EG>0)

Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 48 of 76
0.50
0.25
72 74 76 78 80 82 84 86 88 90 92 94 96 98 00 02 04 06 08 10 12 14
'JHVSF  1SPQPSUJPO PG FGàDJFODZ HBQ NFBTVSFT UIBU BSF QPTJUJWF CZ UXP ZFBS JOUFSWBMT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 49 of 76

0.20

0.15

Absolute value of the efficiency gap

0.10

0.05

0.00

1970

1980

1990

2000

2010

'JHVSF  "CTPMVUF WBMVF PG FGàDJFODZ HBQ NFBTVSFT PWFS UJNF 5IF MJOFT BSF TNPPUIFE FTUJNBUFT PG UIF UI UI BOE UI RVBOUJMFT PG UIF BCTPMVUF WBMVF PG UIF FGàDJFODZ HBQ NFBTVSF XFJHIUFE CZ UIF QSFDJTJPO PG FBDI &( NFBTVSF



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 50 of 76
 8JUIJOQMBO WBSJBUJPO JO UIF FöDJFODZ HBQ
5IF FGàDJFODZ HBQ JT NFBTVSFE BU FBDI FMFDUJPO XJUI B HJWFO EJTUSJDUJOH QMBO UZQJDBMMZ HFOFSBUJOH VQ UP àWF FMFDUJPOT BOE IFODF àWF FGàDJFODZ HBQ NFBTVSFT &GàDJFODZ HBQ NFBTVSFT XJMM DIBOHF GSPN FMFDUJPO UP FMFDUJPO BT UIF EJTUSJCVUJPO PG EJTUSJDUMFWFM WPUF TIBSFT WBSJFT PWFS FMFDUJPOT 4PNF PG UIJT WBSJBUJPO JT UP CF FYQFDUFE &WFO XJUI UIF TBNF EJTUSJDUJOH QMBO JO QMBDF EJTUSJDUT XJMM EJTQMBZ iEF NPHSBQIJD ESJGUu HSBEVBMMZ DIBOHJOH UIF QPMJUJDBM DPNQMFYJPO PG UIPTF EJTUSJDUT *ODVNCFOUT MPTF SFUJSF PS EJF JO PGàDF TPNFUJNFT JODVNCFOUT GBDF NBKPS PQQP TJUJPO TPNFUJNFT UIFZ EPOU 7BSJBUJPO JO UVSOPVU  NPTU QSPNJOFOUMZ GSPN POZFBS UP PGGZFBS  XJMM BMTP DBVTF UIF EJTUSJCVUJPO PG WPUF TIBSFT UP WBSZ GSPN FMFDUJPO UP FMFDUJPO FWFO XJUI UIF EJTUSJDUJOH QMBO VODIBOHFE "MM UIFTF FMFDUJPO TQFDJàD GBDUPST XJMM DPOUSJCVUF UP FMFDUJPOUPFMFDUJPO WBSJBUJPO JO UIF FGàDJFODZ HBQ
1SFDJTFMZ CFDBVTF XF FYQFDU B SFBTPOBCMF EFHSFF PG FMFDUJPOUPFMFDUJPO WBSJ BUJPO JO UIF FGàDJFODZ HBQ XF BTTFTT UIF NBHOJUVEF PG UIJT iXJUIJOQMBOu WBSJ BCJMJUZ JO UIF NFBTVSF *G B QMBO JT B QBSUJTBO HFSSZNBOEFS  XJUI B TZTUFNBUJD BEWBOUBHF GPS POF QBSUZ PWFS UIF PUIFS  UIFO UIF iCFUXFFOQMBOu WBSJBUJPO JO &( TIPVME CF SFMBUJWFMZ MBSHF SFMBUJWF UP UIF iXJUIJOQMBOu WBSJBUJPO JO &(
"CPVU  PG UIF WBSJBUJPO JO UIF &( FTUJNBUFT JT CFUXFFOQMBO WBSJBUJPO 5IF &( NFBTVSF EPFT WBSZ FMFDUJPOUPFMFDUJPO CVU UIFSF JT B NPEFSBUF UP TUSPOH iQMBOTQFDJàDu DPNQPOFOU UP WBSJBUJPO JO UIF &( TDPSFT 8F DPODMVEF UIBU UIF FGàDJFODZ HBQ JT NFBTVSJOH BO FOEVSJOH GFBUVSF PG B EJTUSJDUJOH QMBO
8F FYBNJOF TPNF QBSUJDVMBS EJTUSJDUJOH QMBOT 5IF  FMFDUJPOT JO UIJT BOBMZ TJT TQBO  EJTUSJDUJOH QMBOT 'PS QMBOT XJUI NPSF UIBO POF FMFDUJPO XF DPNQVUF UIF TUBOEBSE EFWJBUJPO PG UIF TFRVFODF PG FMFDUJPOTQFDJàD &( NFBTVSFT PCTFSWFE VOEFS UIF QMBO 5IFTF TUBOEBSE EFWJBUJPOT SBOHF GSPN  ,FOUVDLZT QMBO JO QMBDF GPS KVTU UXP FMFDUJPOT JO  BOE  PS *OEJBOBT QMBO 
 UP  %FMBXBSFT QMBO CFUXFFO  BOE 

" IJHIMZ WBSJBCMF QMBO %FMFXBSF  'JHVSF  TIPXT UIF TFBUT WPUFT BOE &( FTUJNBUFT QSPEVDFE VOEFS UIF %FMBXBSF  QMBO 5IJT JT BNPOH UIF NPTU WBSJBCMF QMBOT XF PCTFSWF XJUI SFTQFDU UP UIF &( NFBTVSF "O FGàDJFODZ HBQ SVOOJOH BHBJOTU UIF %FNPDSBUT GPS   BOE  UIF MBUUFS FMFDUJPO TBX %FNPDSBUT XJO POMZ  TFBUT PVU PG  XJUI  PG UIF TUBUF XJEF WPUF
 GBMMT UP B TNBMM HBQ JO  7   4     &(  ๞
 BOE


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 51 of 76
%FMBXBSF FOET UIF EFDBEF XJUI B QPTJUJWF FGàDJFODZ HBQ JO  5IF %FNPDSBUJD EJTUSJDUBWFSBHF UXPQBSUZ WPUF TIBSF GFMM UP 7   JO  CVU USBOTMBUFE JOUP 4     &(  
" QMBO XJUI NPEFSBUF WBSJBCJMJUZ JO UIF &( 5IF NFEJBO XJUIJOQMBO TUBOEBSE EFWJBUJPO PG UIF &( JT BCPVU  5IJT SPVHIMZ DPSSFTQPOET UP UIF XJUIJOQMBO TUBOEBSE EFWJBUJPO PG UIF &( PCTFSWFE VOEFS UIF QMBO JO QMBDF GPS àWF 8JTDPOTJO TUBUF MFHJTMBUJWF FMFDUJPOT  QSFTFOUFE JO 'JHVSF  5IJT XBT B QMBO UIBU HFOFSBUFE SFMBUJWFMZ TNBMM WBMVFT PG &( UIBU BMUFSOBUFE TJHO PWFS UIF MJGF PG UIF QMBO OFHBUJWF JO  QPTJUJWF JO  BOE  BOE OFHBUJWF JO  BOE 
" MPX WBSJBODF QMBO *OEJBOB  4FF 'JHVSF  5IF &( NFB TVSFT SFDPSEFE VOEFS UIJT QMBO BSF BMM SFMBUJWFMZ TNBMM BOE QPTJUJWF SBOHJOH GSPN  UP  BOE DPSSFTQPOE UP BO JOUFSFTUJOH QFSJPE JO *OEJBOB TUBUF QPMJUJDT %FNPDSBUT XPO  PG UIF  TFBUT JO UIF *OEJBOB TUBUF IPVTF JO UIF  FMFD UJPO XJUI XIBU * FTUJNBUF UP CF KVTU PWFS  PG UIF EJTUSJDUBWFSBHF WPUF  PG  TFBUT XFSF VODPOUFTUFE
 %FNPDSBUJD WPUF TIBSF GFMM UP BCPVU  JO UIF  FMFDUJPO  VODPOUFTUFE TFBUT
 BOE %FNPDSBUT MPTU DPOUSPM PG UIF MFHJTMB UVSF 5IF  FMFDUJPO SFTVMUFE JO B  TQMJU JO UIF MFHJTMBUVSF %FNPDSBUT XPO MFHJTMBUJWF NBKPSJUJFT JO UIF  BOE  FMFDUJPOT XIJMF UIF MBTU FMFDUJPO NJHIU IBWF CFFO XPO CZ %FNPDSBUT XJUI KVTU MFTT UIBO  PG UIF EJTUSJDUWPUF * FTUJNBUF 7   ๢  BOE &(  


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 52 of 76

Highlighting Delaware plan 4

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

5

60

4

60

50

50

40

0.153

Efficiency gap and 95% CI

0.10

40

2 0.05

0.00

30

1

-0.05

30

-0.10

20

-0.15 1

2

3

4

5 20

40

50

60

70

Average District Two-Party Vote

'JHVSF  4FBUT WPUFT BOE UIF FGàDJFODZ HBQ SFDPSEFE VOEFS UIF %FMBXBSF QMBO  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPSSF TQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VO DPOUFTUFE EJTUSJDUT 5IF JOTFU JO UIF MPXFS SJHIU TIPXT UIF TFRVFODF PG FGàDJFODZ HBQ NFBTVSFT SFDPSEFE VOEFS UIF QMBO WFSUJDBM MJOFT BSF  DSFEJCMF JOUFSWBMT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 53 of 76

Highlighting Wisconsin plan 3

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

1

50 40

23
5 4 0.15 0.10

Efficiency gap and 95% CI

50 40

0.05

30

0.00 -0.05

30

-0.10

20

-0.15 1

2

3

4

5 20

40

50

60

70

Average District Two-Party Vote

'JHVSF  4FBUT WPUFT BOE UIF FGàDJFODZ HBQ SFDPSEFE VOEFS UIF 8JTDPOTJO QMBO  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPSSF TQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VO DPOUFTUFE EJTUSJDUT 5IF JOTFU JO UIF MPXFS SJHIU TIPXT UIF TFRVFODF PG FGàDJFODZ HBQ NFBTVSFT SFDPSEFE VOEFS UIF QMBO WFSUJDBM MJOFT BSF  DSFEJCMF JOUFSWBMT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 54 of 76

Highlighting Indiana plan 3

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

5 41

50

3

50

40

2

Efficiency gap and 95% CI

0.15 0.10

40

0.05

30

0.00 -0.05

30

-0.10

20

-0.15 1

2

3

4

5 20

40

50

60

70

Average District Two-Party Vote

'JHVSF  4FBUT WPUFT BOE UIF FGàDJFODZ HBQ SFDPSEFE VOEFS UIF *OEJBOB QMBO  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPSSF TQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VO DPOUFTUFE EJTUSJDUT 5IF JOTFU JO UIF MPXFS SJHIU TIPXT UIF TFRVFODF PG FGàDJFODZ HBQ NFBTVSFT SFDPSEFE VOEFS UIF QMBO WFSUJDBM MJOFT BSF  DSFEJCMF JOUFSWBMT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 55 of 76
 )PX PGUFO EPFT UIF FöDJFODZ HBQ DIBOHF TJHO
)BWJOH PCTFSWFE B QBSUJDVMBS WBMVF PG &( IPX DPOàEFOU BSF XF UIBU
r UIF &( NFBTVSF JT EJTUJOHVJTIBCMF GSPN [FSP BU DPOWFOUJPOBM MFWFMT PG TUBUJT UJDBM TJHOJàDBODF 5IBU JT IPX TVSF BSF XF BT UP UIF TJHO PG BOZ QBSUJDVMBS &( FTUJNBUF 8F BEESFTTFE UIJT RVFTUJPO JO TFDUJPO 
r JU XJMM CF GPMMPXFE CZ POF PS NPSF FTUJNBUFT PG &( UIBU BSF PG UIF TBNF TJHO
r PWFS UIF MJGF PG B EJTUSJDUJOH QMBO &( SFNBJOT PO POF TJEF PG [FSP PS UIF PUIFS
5IF MBUUFS UXP RVFTUJPOT BSF LFZ *U JT FTQFDJBMMZ JNQPSUBOU UIBU XF BTTFTT UIF EVSBCJMJUZ PG UIF TJHO PG UIF &( NFBTVSF VOEFS B EJTUSJDUJOH QMBO JG XF TFFL UP BTTFSU UIBU B EJTUSJDUJOH QMBO JT B QBSUJTBO HFSSZNBOEFS 8F XJMM TFF UIBU NBHOJUVEF BOE EVSBCJMJUZ PG UIF FGàDJFODZ HBQ HP UPHFUIFS MBSHF WBMVFT PG UIF FGàDJFODZ HBQ EPOU TFFN UP CF DBQSJDJPVT CVU MJLFMZ UP CF SFQFBUFE PWFS UIF MJGF PG B EJTUSJDUJOH QMBO DPOTJTUFOU XJUI QBSUJTBO EJTBEWBOUBHF CFJOH B TZTUFNBUJD GFBUVSF PG UIF QMBO
8F CFHJO UIJT QBSU PG UIF BOBMZTJT CZ DPOTJEFSJOH UFNQPSBMMZ BEKBDFOU QBJST PG &( FTUJNBUFT $BO XF CF DPOàEFOU UIBU UIFTF IBWF UIF TBNF TJHO *O HFOFSBM ZFT 0G UIF GVMM TFU PG  FMFDUJPOT GPS XIJDI XF DPNQVUF BO FGàDJFODZ HBQ FTUJNBUF  BSF UFNQPSBMMZ BEKBDFOU XJUIJO TUBUF BOE EJTUSJDUJOH QMBO 'JHVSF  TIPXT UIBU XF VTVBMMZ TFF FGàDJFODZ HBQ NFBTVSFT XJUI UIF TBNF TJHO UIJT QSPCBCJMJUZ FYDFFET  GPS BMNPTU IBMG PG UIF UFNQPSBMMZ BEKBDFOU QBJST PG FGàDJFODZ HBQ NFBTVSFT "WFSBHFE PWFS BMM QBJST UIJT iTBNF TJHOu QSPCBCJMJUZ JT  8IJMF UIF FGàDJFODZ HBQ EPFT WBSZ FMFDUJPO UP FMFDUJPO UIFTF áVDUVBUJPOT BSF OPU TP MBSHF UIBU UIF TJHO PG UIF FGàDJFODZ HBQ JT MJLFMZ UP DIBOHF FMFDUJPO UP FMFDUJPO
8IBU BCPVU PWFS UIF MJGF PG BO FOUJSF SFEJTUSJDUJOH QMBO )PX MJLFMZ JT JU UIBU UIF FGàDJFODZ HBQ SFUBJOT UIF TBNF TJHO PWFS TBZ UISFF UP àWF FMFDUJPOT JO B HJWFO TUBUF UBLJOH JOUP BDDPVOU FMFDUJPOUPFMFDUJPO WBSJBUJPO BOE VODFSUBJOUZ BSJTJOH GSPN UIF JNQVUBUJPO QSPDFEVSFT VTFE GPS VODPOUFTUFE EJTUSJDUT
8F IBWF  QMBOT UIBU TVQQMZ UISFF PS NPSF FMFDUJPOT XJUI FTUJNBUF PG UIF FGàDJFODZ HBQ 0G UIFTF  QMBOT BSF VUUFSMZ VOBNCJHVPVT XJUI SFTQFDU UP UIF TJHO PG UIF FGàDJFODZ HBQ FTUJNBUFT SFDPSEFE PWFS UIF MJGF PG UIF QMBO GPS FBDI PG UIFTF QMBOT XF FTUJNBUF UIF QSPCBCJMJUZ UIBU UIF &( IBT UIF TBNF TJHO PWFS UIF MJGF PG UIF QMBO UP CF  5IFTF QMBOT BSF MJTUFE CFMPX JO 5BCMF 


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 56 of 76

Percent of Total

Probabilities that efficiency gap has the same sign as in previous election
40

30

20

10

0

0.0

0.2

0.4

0.6

0.8

1.0

'JHVSF  4UBCJMJUZ JO  TVDDFTTJWF QBJST PG FGàDJFODZ HBQ NFBTVSFT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 57 of 76

4UBUF

1MBO 4UBSU &OE &( BWH &( NJO &( NBY

'MPSJEB

     

/FX :PSL

     

*MMJOPJT

     

.JDIJHBO

     

/FX :PSL

     

/FX :PSL

     

.JTTPVSJ

     

0IJP

     

/FX :PSL

     

0IJP

     

.JDIJHBO

     

8JTDPOTJO

     

$PMPSBEP

     

$PMPSBEP

     

$BMJGPSOJB

     

1FOOTZMWBOJB      

'MPSJEB

     

5BCMF  1MBOT XJUI OP EPVCU BT UP UIF TJHO PG UIF FGàDJFODZ HBQ PWFS UIF MJGF PG UIF QMBO  FMFDUJPOT


*OUFSFTUJOHMZ UIFTF QMBOT XJUI BO VUUFSMZ VOBNCJHVPVT IJTUPSZ PG POFTJEFE &( NFBTVSFT BSF BMNPTU BMM QMBOT XJUI FGàDJFODZ HBQT UIBU BSF EJTBEWBOUBHPVT UP %FNPDSBUT .JDIJHBOT  QMBO JT PO UIJT MJTU BT JT UIF QMBO JO QMBDF JO 8JTDPOTJO  BWFSBHF &( PG 

8F FYBNJOF UIJT QSPCBCJMJUZ PG i DPOTFDVUJWF &( NFBTVSFT XJUI UIF TBNF TJHOu GPS BMM PG UIF QMBOT XJUI  PS NPSF FMFDUJPOT JO UIJT BOBMZTJT  PG  QMBOT XJUI  PS NPSF FMFDUJPOT IBWF BU MFBTU B  QSPCBCJMJUZ PG SFDPSEJOH QMBOT XJUI &( NFBTVSFT XJUI UIF TBNF TJHO *G XF SFMBY UIJT UISFTIPME UP  UIFO  PG QMBOT XJUI  PS NPSF FMFDUJPOT FYIJCJU &( NFBTVSFT XJUI UIF TBNF TJHO "HBJO UIFSF JT B SFBTPOBCMF BNPVOU PG XJUIJOQMBO NPWFNFOU JO &( CVU JO B MBSHF QSPQPSUJPO PG QMBOT UIF FGàDJFODZ HBQ BQQFBST UP CF B TUBCMF BUUSJCVUF PG UIF QMBO



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 58 of 76
 " UISFTIPME GPS UIF FöDJFODZ HBQ
8F OPX UVSO UP UIF RVFTUJPO PG XIBU NJHIU EFUFSNJOF B UISFTIPME GPS EFUFS NJOJOH JG UIF &( JT B MBSHF BOE FOEVSJOH DIBSBDUFSJTUJD PG B QMBO 8F QPTF UIF QSPCMFN BT GPMMPXT
GPS B HJWFO UISFTIPME &(ຆ   XIBU JT UIF QSPCBCJMJUZ UIBU IBWJOH PCTFSWFE B WBMVF PG &( ཏ &(ຆ XF UIFO TFF &(   JO UIF SFNBJOEFS PG UIF QMBO
5P BOTXFS UIJT XF DPNQVUF
r JG BOE PQUJPOBMMZ XIFO
 B QMBO IBT &( ཏ &(ຆ
r DPOEJUJPOBM PO TFFJOH &( ཏ &(ຆ EP XF BMTP PCTFSWF &(   B TJHO áJQ
 JO UIF TBNF EJTUSJDUJOH QMBO
'PS &(   UIF DPNQVUBUJPOT BSF SFWFSTFE DPOEJUJPOBM PO TFFJOH &(  &(ຆ EP XF BMTP TFF &(   VOEFS UIF TBNF QMBO
'JHVSF  EJTQMBZT UXP QSPQPSUJPOT QMPUUFE BHBJOTU B TFSJFT PG QPUFOUJBM UISFTI PMET PO UIF IPSJ[POUBM BYJT 5IF UXP QMPUUFE QSPQPSUJPOT BSF
r UIF QSPQPSUJPO PG QMBOT JO XIJDI XF PCTFSWF BO &( NPSF FYUSFNF UIBO UIF TQFDJàFE UISFTIPME &(ຆ PO UIF IPSJ[POUBM BYJT

r BNPOH UIF QMBOT UIBU USJQ UIF TQFDJàFE UISFTIPME UIF QSPQPSUJPO JO XIJDI XF TFF B &( JO UIF TBNF QMBO XJUI B EJGGFSFOU TJHO UP &(ຆ
1MBOT XJUI BU MFBTU POF FMFDUJPO XJUI ]&(]   BSF SFBTPOBCMZ DPNNPO PWFS UIF FOUJSF TFU PG QMBOT BOBMZ[FE IFSF  BOE BHBJO XJUI UIF VODFSUBJOUZ JO &( FTUJNBUFT UBLFO JOUP BDDPVOU  UIFSF JT BCPVU B  DIBODF UIBU B QMBO XJMM IBWF BU MFBTU POF FMFDUJPO XJUI ]&(]  
0CTFSWJOH &(   JT OPU B QBSUJDVMBSMZ JOGPSNBUJWF TJHOBM XJUI SFTQFDU UP UIF PUIFS FMFDUJPOT JO UIF QMBO $POEJUJPOBM PO PCTFSWJOH BO FMFDUJPO XJUI &(   BO FGàDFODZ HBQ GBWPSJOH %FNPDSBUT
 UIFSF JT BO B  DIBODF UIBU VOEFS UIF TBNF QMBO XF XJMM PCTFSWF &(   5IBU JT NBLJOH BO JOGFSFODF BCPVU B QMBO PO UIF CBTJT PG POF FMFDUJPO XJUI &(   XPVME CF RVJUF SJTLZ &TUJNBUFT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 59 of 76

Proportion of plans with EG in excess of threshold Proportion of plans exceeding threshold that have an EG with opposite sign

0.7 Wisconsin 2012

0.6

0.5

Proportion of plans

0.4

0.3

0.2

0.1

0.0

-0.15

-0.10

-0.05

0.00

0.05

0.10

0.15

Efficency gap threshold

'JHVSF  1SPQPSUJPO PG QMBOT UIBU B
 SFDPSE BO FGàDJFODZ HBQ NFBTVSF BU MFBTU BT FYUSFNF BT UIF WBMVF PO UIF IPSJ[POUBM BYJT BOE C
 DPOEJUJPOBM PO BU MFBTU POF FMFDUJPO XJUI &( JO FYDFTT PG UIJT UISFTIPME OPU OFDFTTBSJMZ UIF àSTU FMFDUJPO
 UIF QSPQPSUJPO PG QMBOT XIFSF UIFSF JT BOPUIFS FMFDUJPO JO UIF QMBO XJUI BO &( PG UIF PQQPTJUF TJHO



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 60 of 76
PG UIF iTJHO áJQu SBUF DPOEJUJPOBM PO B QMBO HFOFSBUJOH B SFMBUJWFMZ MBSHF QSP %FNPDSBUJD &( FTUJNBUFT BSF RVJUF VOSFMJBCMF CFDBVTF UIFSF BSF TP GFX QMBOT HFO FSBUJOH MBSHF QSP%FNPDSBUJD &( FTUJNBUFT UP CFHJO XJUI OPUF UIF DPOàEFODF JOUFSWBMT PO UIF iTJHO áJQu SBUF HFU WFSZ XJEF BT UIF EBUB CFDPNF NPSF TDBSDF PO UIF SJHIU IBOE TJEF PG UIF HSBQI
5IJT àOEJOH JT OPU TZNNFUSJD 5IF iTJHOBMu &(  ๞ BO FGàDJFODZ HBQ EJTBEWBOUBHFPVT UP %FNPDSBUT
 JT NVDI NPSF JOGPSNBUJWF BCPVU PUIFS FMFDUJPOT JO UIF QMBO UIBO UIF PQQPTJUF TJHOBM &(   B QSP%FNPDSBUJD FGàDJFODZ HBQ
 *G BOZ TJOHMF FMFDUJPO JO UIF QMBO IBT &(  ๞ UIFO UIF QSPCBCJMJUZ UIBU BMM FMFDUJPOT JO UIF QMBO IBWF &(   JT BCPVU  5IBU JT UIFSF JT B TNBMMFS EF HSFF PG XJUIJOQMBO WPMBUJMJUZ JO QMBOT UIBU EJTBEWBOUBHF %FNPDSBUT 0CTFSWJOH B SFMBUJWFMZ MPX WBMVF PG UIF &( TVDI BT &(  ๞ JT NVDI NPSF QSFTVNQUJWF PG B TZTUFNBUJD BOE FOEVSJOH GFBUVSF PG B SFEJTUSJDUJOH QMBO UIBO UIF PQQPTJUF TJH OBM &(   &GàDJFODZ HBQ NFBTVSFT UIBU BQQFBS UP JOEJDBUF B EJTBEWBOUBHF GPS %FNPDSBUT BSF UIVT NPSF SFMJBCMF TJHOBMT BCPVU UIF SFTQFDUJWF EJTUSJDUJOH QMBO UIBO FGàDJFODZ HBQ NFBTVSFT JOEJDBUJOH BO BEWBOUBHF GPS %FNPDSBUT
8F SFQFBU UIJT QSFWJPVT FYFSDJTF CVU SFTUSJDUJOH BUUFOUJPO UP NPSF SFDFOU FMFD UJPOT BOE QMBOT XJUI UIF SFTVMUT EJTQMBZFE JO 'JHVSF  "HBJO XF TFF UIBU QMBOT XJUI QSP%FNPDSBUJD &( NFBTVSFT BSF RVJUF MJLFMZ UP BMTP HFOFSBUF BO FMFDUJPO XJUI &(   BOE BHBJO OPUF UIBU FTUJNBUFT PG UIF iTJHO áJQu SBUF BSF RVJUF VOSFMJBCMF CFDBVTF UIFSF BSF TP GFX QMBOT HFOFSBUJOH MBSHF QSP%FNPDSBUJD &( FTUJNBUFT UP CFHJO XJUI


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 61 of 76

Proportion of plans with EG in excess of threshold Proportion of plans exceeding threshold that have an EG with opposite sign

1.0

0.9

0.8
0.7 Wisconsin 2012

Proportion of plans

0.6

0.5

0.4

0.3

0.2

0.1

0.0

-0.15

-0.10

-0.05

0.00

0.05

0.10

0.15

Efficency gap threshold

'JHVSF  1SPQPSUJPO PG QMBOT JO XIJDI B
 UIF FGàDJFODZ HBQ NFBTVSF JT BU MFBTU BT FYUSFNF BT UIF WBMVF PO UIF IPSJ[POUBM BYJT BOE C
 PG UIFTF QMBOT XJUI BU MFBTU POF FMFDUJPO XJUI &( JO FYDFTT PG UIJT UISFTIPME OPU OFDFTTBSJMZ UIF àSTU FMFDUJPO
 UIF QSPQPSUJPO PG QMBOT JO XIJDI UIFSF JT BOPUIFS FMFDUJPO JO UIF QMBO XJUI BO &( PG UIF PQQPTJUF TJHO "OBMZTJT PG TUBUF MFHJTMBUJWF FMFDUJPOT JO  QMBOT QSFTFOU



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 62 of 76
 $POEJUJPOJOH PO UIF mSTU FMFDUJPO JO B EJTUSJDUJOH QMBO
8F BMTP DPNQVUF UIJT QSPCBCJMJUZ PG B TJHO áJQ JO &( DPOEJUJPOBM PO UIF NBH OJUVEF PG UIF &( PCTFSWFE XJUI UIF àSTU FMFDUJPO VOEFS B EJTUSJDUJOH QMBO 8F QFSGPSN UIJT BOBMZTJT UXJDF 
 GPS BMM FMFDUJPOT JO UIF EBUB TFU BOE 
 GPS FMFD UJPOT IFME VOEFS QMBOT BEPQUFE JO  PS MBUFS
'JHVSFT  BOE  EJTQMBZ UIF SFTVMUT PG UIFTF BOBMZTFT 'JSTU PWFS UIF GVMM TFU PG EBUB 'JHVSF 
 XF PCTFSWF B SPVHIMZ TZNNFUSJD TFU PG &( TDPSFT JO UIF àSTU FMFDUJPO VOEFS B QMBO #VU XF TFMEPN TFF QMBOT JO UIF T PS MBUFS UIBU DPNNFODF XJUI B MBSHF QSP%FNPDSBUJD FGàDJFODZ HBQ UIF QSPCBCJMJUZ PG B àSTU FMFDUJPO IBWJOH &(   JT [FSP BOE UIF QSPCBCJMJUZ PG B àSTU FMFDUJPO IBWJOH &(   IJTUPSJDBMMZ OPU B MBSHF &(
 JT POMZ BCPVU  /FHBUJWF FGàDJFODZ HBQT OPU GBWPSJOH %FNPDSBUT
 BSF NVDI NPSF MJLFMZ VOEFS UIF àSTU FMFDUJPO JO UIF QPTU QMBOT BMNPTU  PG QMBOT PQFO XJUI &(  ๞ BOE BCPVU  PG QMBOT PQFO XJUI &(  ๞
"T OPUFE FBSMJFS QSP%FNPDSBUJD FGàDJFODZ HBQT TFFN NVDI NPSF áFFUJOH UIBO QSP3FQVCMJDBO FGàDJFODZ HBQT $POEJUJPOBM PO B QSP3FQVCMJDBO FTUJNBUF PG &(   JO UIF àSTU FMFDUJPO VOEFS B QMBO UIF QSPCBCJMJUZ PG TFFJOH &( DIBOHF TJHO PWFS UIF MJGF PG UIF QMBO JT BMNPTU BMXBZT BSPVOE   'JHVSF 
 PS  QSFTFOU 'JHVSF 

" WFSZ EJGGFSFOU DPODMVTJPO IPMET JG UIF àSTU FMFDUJPO PCTFSWFE VOEFS B QMBO JOEJDBUFT B TJ[FBCMF FGàDJFODZ HBQ XPSLJOH UP EJTBEWBOUBHF %FNPDSBUT *O GBDU UIF NPSF OFHBUJWF UIF JOJUJBM &( PCTFSWFE VOEFS B QMBO UIF NPSF DPOàEFOU XF DBO CF UIBU XF XJMM DPOUJOVF UP PCTFSWF &(   PWFS UIF TFRVFODF PG FMFDUJPOT UP GPMMPX VOEFS UIF QMBO $POEJUJPOBM PO B àSTU FMFDUJPO XJUI &(  ๞ UIF QSPCBCJMJUZ PG BMM TVCTFRVFOU FGàDJFODZ HBQT CFJOH OFHBUJWF JT BCPVU  *OEFFE JU JT NPSF MJLFMZ UIBO OPU UIBU JG UIF àSTU FMFDUJPO IBT &(   OP NBUUFS IPX TNBMM
 UIFO TP UPP XJMM BMM TVCTFRVFOU FMFDUJPOT B  DIBODF PG UIJT FWFOU

/PUF UIBU UIF $VSSFOU 8JTDPOTJO 1MBO PQFOT XJUI &(  ๞ JO UIF  FMFDUJPO "OBMZTJT PG FGàDJFODZ HBQ NFBTVSFT JO UIF QPTU FSB 'JHVSF 
 JO EJDBUFT UIBU DPOEJUJPOBM PO BO &( NFBTVSF PG UIJT TJ[F BOE TJHO UIFSF JT B  QSPCBCJMJUZ UIBU BMM TVCTFRVFOU FMFDUJPOT IFME VOEFS UIBU QMBO XJMM BMTP IBWF FG àDJFODZ HBQT EJTBEWBOUBHFPVT UP %FNPDSBUT 5IBU JT JO UIF QPTU FSB JG B QMBOT àSTU FMFDUJPO ZJFMET &( ཎ ๞ XF OFWFS TFF B TVCTFRVFOU FMFDUJPO VO EFS UIBU QMBO ZJFMEJOH B QSP%FNPDSBUJD FGàDJFODZ HBQ *O TIPSU B TJHOBM TVDI BT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 63 of 76

Proportion of plans with EG in excess of threshold Proportion of plans exceeding threshold that have an EG with opposite sign
0.7 Wisconsin 2012

0.6

0.5

Proportion of plans

0.4

0.3

0.2

0.1

0.0

-0.15

-0.10

-0.05

0.00

0.05

0.10

0.15

Efficency gap threshold

'JHVSF  1SPQPSUJPO PG QMBOT JO XIJDI UIF àSTU FMFDUJPO B
 IBT BO FGàDJFODZ HBQ NFBTVSF BU MFBTU BT FYUSFNF BT UIF WBMVF PO UIF IPSJ[POUBM BYJT BOE C
 DPOEJUJPOBM PO UIF àSTU FMFDUJPO IBWJOH BO &( JO FYDFTT PG UIJT UISFTIPME UIF QSPQPSUJPO PG UIPTF QMBOT JO XIJDI B TVCTFRVFOU FMFDUJPO IBT BO &( PG UIF PQQPTJUF TJHO "OBMZTJT PG BMM TUBUF MFHJTMBUJWF FMFDUJPOT JO BMM QMBOT XJUI NPSF UIBO POF FMFDUJPO QSFTFOU



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 64 of 76

Proportion of plans with EG in excess of threshold Proportion of plans exceeding threshold that have an EG with opposite sign

1.0

0.9

0.8
0.7 Wisconsin 2012

Proportion of plans

0.6

0.5

0.4

0.3

0.2

0.1

0.0

-0.15

-0.10

-0.05

0.00

0.05

0.10

0.15

Efficency gap threshold

'JHVSF  1SPQPSUJPO PG QMBOT JO XIJDI UIF àSTU FMFDUJPO B
 IBT BO FGàDJFODZ HBQ NFBTVSF BU MFBTU BT FYUSFNF BT UIF WBMVF PO UIF IPSJ[POUBM BYJT C
 DPOEJUJPOBM PO UIF àSTU FMFDUJPO IBWJOH BO &( JO FYDFTT PG UIJT UISFTIPME UIF QSPQPSUJPO PG UIPTF QMBOT JO XIJDI B TVCTFRVFOU FMFDUJPO IBT BO &( PG UIF PQQPTJUF TJHO "OBMZTJT PG TUBUF MFHJTMBUJWF FMFDUJPOT JO  QMBOT QSFTFOU



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 65 of 76
&( ཎ ๞ JT FYUSFNFMZ SFMJBCMF XJUI SFTQFDU UP UIF EJTUSJDUJOH QMBO UIBU HFOFSBUFE JU BU MFBTU HJWFO UIF QPTU SFDPSE
 $POEJUJPOJOH PO UIF mSTU UXP FMFDUJPOT JO B EJTUSJDUJOH QMBO
5IF EJGàDVMUZ XJUI DPOEJUJPOJOH PO UIF àSTU UXP FMFDUJPOT PG B EJTUSJDUJOH QMBO JT UIBU UIF EBUB TUBSU UP UIJO PVU *O UIF FOUJSF EBUB TFU UIFSF TJNQMZ BSFOU NBOZ EJTUSJDUJOH QMBOT UIBU FRVBM PS TVSQBTT UIF UXP SFMBUJWFMZ MBSHF WBMVFT PG &( PC TFSWFE JO 8JTDPOTJO JO UIF àSTU UXP FMFDUJPOT PG UIF DVSSFOU QMBO *OEFFE UIF POMZ DBTFT XJUI B TJNJMBS IJTUPSZ PG &( NFBTVSFT MJLF 8JTDPOTJOT JO  BOE  BSF DPOUFNQPSBOFPVT DBTFT 'MPSJEB .JDIJHBO BOE /PSUI $BSPMJOB JO  BOE 
8F SFMBY UIF UISFTIPME PG XIBU DPVOUT BT B TJNJMBS DBTF UP FODPNQBTT QMBOT XIPTF àSTU UXP FGàDJFODZ HBQ NFBTVSFT BSF XJUIJO  PG UIF NBHOJUVEF PG 8JT DPOTJOT  BOE  &( NFBTVSFT XF OPX QJDL VQ  SPVHIMZ DPNQBSBCMF DBTFT  PG XIJDI EBUF GSPN FBSMJFS EFDBEFT "HBJO UIJT JT UFTUBNFOU UP IPX SF DFOU EFDBEFT IBWF TFFO BO JODSFBTF JO UIF QSFWBMFODF PG MBSHFS OFHBUJWF WBMVFT PG UIF FGàDJFODZ HBQ
'PS UIF GPVS QSJPS DBTFT XF QMPU UIF TFRVFODF PG &( FTUJNBUFT JO 'JHVSF  8JUI UIF FYDFQUJPO PG UIF MBTU FMFDUJPO JO UIF IJHIMZ VOVTVBM %FMBXBSF TFRVFODF BNPOH UIF NPTU WPMBUJMF PCTFSWFE JO UIF EBUB TFU TFF TFDUJPO 
 UIF PUIFS QSPYJNBUF DBTFT BMM HP PO UP SFDPSE FGàDJFODZ HBQ NFBTVSFT UIBU BSF CFMPX [FSP PWFS UIF CBMBODF PG UIF QMBO 8F TUSFTT UIBU GPVS DBTFT EPFTOU QSPWJEF NVDI CBTJT GPS DPNQBSJTPO CVU UIJT POMZ TQFBLT UP UIF GBDU UIBU UIF TFRVFODF PG UXP MBSHF OFHBUJWF WBMVFT PG UIF FGàDJFODZ HBQ JO 8JTDPOTJO JO  BOE  BSF WJSUVBMMZ XJUIPVU IJTUPSJDBM QSFDFEFOU 8F IBWF MJUUMF HVJEFODF GSPN UIF IJTUPSJDBM SFDPSE BT UP XIBU UP FYQFDU HJWFO BO PQFOJOH TFRVFODF PG &( NFBTVSFT MJLF UIF POFT PCTFSWFE JO 8JTDPOTJO #VU UIF MJUUMF FWJEFODF XF EP IBWF TVHHFTUT UIBU B TUSFBN PG TJNJMBSMZ TJ[FE OFHBUJWF WBMVFT PG UIF FGàDJFODZ HBQ BSF RVJUF MJLFMZ PWFS UIF CBMBODF PG UIF EJTUSJDUJOH QMBO
 "O BDUJPOBCMF &( UISFTIPME
8F OPX DPOTJEFS B NPSF HFOFSBM RVFTUJPO XIBU JT BO BDUJPOBCMF UISFTIPME GPS UIF FGàDJFODZ HBQ


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 66 of 76

Efficiency gap

DE 4

MI 4

NY 1

0.05

0.00

-0.05

-0.10

-0.15

-0.20

WI 5

WY 3

0.05

0.00

-0.05

-0.10

-0.15

-0.20

1

2

3

4

51

2

3

4

5

Election, sequence in plan

'JHVSF  4FRVFODF PG &( FTUJNBUFT PCTFSWFE PWFS UIF MJGF PG EJTUSJDUJOH QMBOT GPS QSF QMBOT XJUI àSTU UXP &( TDPSFT XJUIJO  PG UIF NBHOJUVEF PG UIF &( TDPSFT PCTFSWFE JO 8JTDPOTJO JO  BOE 



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 67 of 76
'JSTU SFDBMM UIBU SFMBUJWFMZ TNBMM &( FTUJNBUFT BSF MJLFMZ UP CF TXBNQFE CZ UIFJS FTUJNBUJPO VODFSUBJOUZ EFQFOEJOH PO UIF QSPQPSUJPO PG VODPOUFTUFE EJTUSJDUT JO UIF HJWFO FMFDUJPO BOE UIF TUBUJTUJDBM QSPDFEVSFT *O FWFSZ JOTUBODF UIPVHI UIJT JT BO FNQJSJDBM RVFTUJPO BU MFBTU JO UIF BQQSPBDI * QSFTFOU IFSF FBDI &( FTUJNBUF * HFOFSBUF JT BDDPNQBOJFE XJUI VODFSUBJOUZ CPVOET MFUUJOH VT BTTFTT UIF QSPCBCJMJUZ UIBU B HJWFO FTUJNBUF JT QPTJUJWF PS OFHBUJWF 'JHVSF  QSPWJEFT B TVNNBSZ PG UIF SFMBUJPOTIJQ CFUXFFO UIF TJ[F PG UIF &( FTUJNBUF BOE UIF iTUBUJTUJDBM TJHOJàDBODFu PG UIF FTUJNBUF JO UIF TFOTF UIBU UIF  DSFEJCMF JOUFSWBM GPS FBDI FTUJNBUF EPFT OPU PWFSMBQ [FSP

4FDPOE UIF EJTUSJCVUJPO PG &( TUBUJTUJDT JO UIF  QFSJPE JT SPVHIMZ TZNNFUSJD BSPVOE [FSP 3FGFSFODF UP UIJT FNQJSJDBM EJTUSJCVUJPO NJHIU BMTP CF IFMQGVM JO TFUUJOH BDUJPOBCMF UISFTIPMET BOE BOTXFSJOH UIF RVFTUJPO iJT UIF &( NFBTVSF BU JTTVFT MBSHF SFMBUJWF UP UIPTF PCTFSWFE JO UIF QSFWJPVT  ZFBST PG TUBUF MFHJTMBUJWF FMFDUJPOT u %PVCMF EJHJU &( NFBTVSFT  PS CFMPX  PS BCPWF
 BSF QVTIJOH PVU JOUP UIF FYUSFNFT PG UIF PCTFSWFE EJTUSJCVUJPO PG &( FTUJNBUFT &( FTUJNBUFT PG UIJT NBHOJUVEF BSF DPNGPSUBCMZ QBTU UIF RVFTUJPO PG iTUBUJTUJDBM TJHOJàDBODFu +VTU  PG UIF  &( NFBTVSFT HFOFSBUFE JO UIJT BOBMZTJT BSF CFMPX  GFXFS UIBO  BSF HSFBUFS UIBO 
8F EP OFFE UP CF DBSFGVM XIFO NBLJOH UIFTF LJOET PG SFMBUJWF BTTFTTNFOUT BCPVU UIF NBHOJUVEF PG UIF FGàDJFODZ HBQ *G QSP3FQVCMJDBO HFSSZNBOEFSJOH JT XJEFTQSFBE UIFO JU XJMM CF MFTT VOVTVBM UP TFF B MBSHF OFHBUJWF &( FTUJNBUF BU MFBTU DPOUFNQPSBOFPVTMZ JO GBDU UIJT BQQFBST UP UIF DBTF JO UIF QPTU TFU PG FMFDUJPOT XIFSF UIF MPOHFSUFSN EJTUJODUJWFOFTT PG UIF 8JTDPOTJO OVNCFST JT NBUDIFE BOE JO TPNF DBTFT FYDFFEFE CZ PUIFS TUBUFT BMTP SFDPSEJOH VOVTVBMMZ MBSHF OFHBUJWF &( FTUJNBUFT FH 'MPSJEB .JDIJHBO 7JSHJOJB BOE /PSUI $BS PMJOB
 5IJT TQFBLT UP UIF VUJMJUZ PG UIF MPOHFSUFSN IJTUPSJDBM BOBMZTJT JO CPUI 4UFQIBOPQPMPVT BOE .D(IFF 
 BOE JO UIJT SFQPSU *U JU JT JNQPSUBOU UP SF NFNCFS UIBU &(   DPSSFTQPOET UP B QBSUJTBO TZNNFUSZ JO XBTUFE WPUF SBUFT XF TIPVME CF XBSZ PG BSHVNFOUT UIBU XPVME MFBE VT UP UPMFSBUF TNBMM UP NPEFSBUF MFWFMT PG UIF FGàDJFODZ HBQ CFDBVTF UIFZ BQQFBS UP CF UIF OPSN JO TPNF QFSJPE PG UJNF PS JO TPNF TFU PG KVSJTEJDUJPOT
*O BOZ MJUJHBUJPO NVDI XJMM UVSO PO UIF RVFTUJPO PG EVSBCJMJUZ JO UIF FGàDJFODZ HBQ BOE UIJT DPODFSO NPUJWBUFT NVDI PG UIF QSFDFFEJOH BOBMZTJT 8F DBOOPU XBJU VOUJM UISFF GPVS PS NPSF FMFDUJPOT IBWF USBOTQJSFE VOEFS B QMBO JO PSEFS UP


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 68 of 76
BTTFTT JUT QSPQFSUJFT $PVSUT XJMM CF BTLFE UP BTTFTT B QMBO CBTFE PO POMZ POF &( FTUJNBUF PS UXP "OBMZTJT PG UIF TPSU * QSPWJEF IFSF XJMM CF JOGPSNBUJWF JO UIFTF DBTFT BTTFTTJOH XIFUIFS UIF FTUJNBUF JT TP MBSHF UIBU UIF IJTUPSJDBM SFDPSE TVHHFTUT UIBU UIF àSTU FMFDUJPOT &( FTUJNBUF JT B SFMJBCMF JOEJDBUPS BT BO FOEVSJOH GFBUVSF PG UIF QMBO BOE OPU BO FMFDUJPOTQFDJàD BCFSSBUJPO
 $POmEFODF JO B HJWFO UISFTIPME
'JHVSFT  BOE  QSFTFOU NZ FTUJNBUF PG B iDPOàEFODF SBUFu BTTPDJBUFE XJUI B SBOHF PG QPTTJCMF iBDUJPOBCBMF UISFTIPMETu GPS UIF FGàDJFODZ HBQ 5IFTF àHVSFT FTTFOUJBMMZ SFQBDLBHF UIF JOGPSNBUJPO TIPXO JO 'JHVSFT  BOE  4VQQPTF B DPVSU SFKFDUT PS BNFOET FWFSZ QMBO XJUI B àSTU FMFDUJPO &( NPSF FYUSFNF GVSUIFS BXBZ GSPN [FSP
 UIBO UIF QSPQPTFE UISFTIPME TIPXO PO UIF IPSJ[POUBM BYJT PG UIFTF HSBQIT " DFSUBJO OVNCFS PG QMBOT GBJM UP USJQ UIJT UISFTIPME BOE TP BSF VQIFME CZ UIF DPVSUT JG UIFZ BSF DIBMMFOHFE 0G UIPTF UIBU EP USJQ UIF UISFTIPME BOE BSF SFKFDUFE CZ B DPVSU XIBU JT PVS DPOàEFODF UIBU UIF QMBO JG MFGU VOEJTUVSCFE XPVME HP PO UP QSPEVDF B TFRVFODF PG &( NFBTVSFT UIBU MJF PO UIF TBNF TJEF PG [FSP BT UIF UISFTIPME $PNCJOJOH UIFTF UXP QSPQPSUJPOT HJWFT VT BO PWFSBMM DPOàEFODF NFBTVSF BTTPDJBUFE XJUI B QBSUJDVMBS UISFTIPME
5IJT BOBMZTJT QPJOUT UP B CFODINBSL PG BCPVU  PS  BT UIF BDUJPOBCMF UISFTIPME HJWFO B àSTU FMFDUJPO XJUI &(   %FNPDSBUJD EJTBEWBOUBHF
 PS  PS  XIFO XF PCTFSWF &(   JO UIF àSTU FMFDUJPO VOEFS B SFEJTUSJDUJOH QMBO %FNPDSBUJD BEWBOUBHF
 UIF BTZNNFUSZ IFSF SFáFDUT UIF GBDU UIBU EJTUSJDUJOH QMBOT FWJODJOH BQQBSFOU %FNPDSBUJD BEWBOUBHFT BSF OPU BT EVSBCMF PS BT DPNNPO JO SFDFOU EFDBEFT
 BT QMBOT QSFTFOUJOH FWJEFODF PG QSP3FQVCMJDBO HFSSZNBOEFST "U UIFTF QSPQPTFE CFODINBSLT UIF PWFSBMM DPOàEFODF SBUFT BSF FTUJNBUFE UP CF  XJUI UIJT DPOàEFODF SBUF DPSSFTQPOEJOH UP B CFODINBSL VTFE XJEFMZ JO TUBUJTUJDBM EFDJTJPONBLJOH JO NBOZ àFMET PG TDJFODF
'JHVSFT  BOE  BMTP IJHIMJHIU UIBU &(  ๞ PS &(   XPVME CF BO FYUSFNFMZ DPOTFSWBUJWF UISFTIPME 0O UIF QSP%FNPDSBUJD TJEF &(   JT B SBSF FWFOU %JTUSJDUJOH QMBOT VOGBWPSBCMF UP %FNPDSBUT XJUI &(  ๞ BSF OPU VOVTVBM BCPVU  PG QPTU QMBOT HFOFSBUF &( NFBTVSFT CFMPX  UIF QSPQPSUJPO PG UIFTF QMBOT UIBU UIFO SFDPSE B TJHO áJQ JT POMZ BCPVU  TFF 'JHVSF  *G UIF QSFTVNQUJPO XBT UIBU BOZ QMBO XJUI B àSTU FMFDUJPO TIPXJOH


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 69 of 76
1.00 0.95 0.90 0.85 0.80 0.75
-0.15 -0.12 -0.09 -0.06 -0.03 0.00 0.03 0.06 0.09 0.12 0.15
Efficiency Gap Threshold 'JHVSF  1SPQPSUJPO PG QMBOT CFJOH FJUIFS B
 VOEJTUVSCFE PS C
 JG MFGU VOEJT UVSCFE XPVME DPOUJOVF UP QSPEVDF POFTJEFE QBSUJTBO BEWBOUBHF OP TJHO DIBOHF JO TVCTFRVFOU &( NFBTVSFT
 BT B GVODUJPO PG UIF QSPQPTFE iàSTU FMFDUJPOu FG àDJFODZ HBQ UISFTIPME IPSJ[POUBM BYJT
 CBTFE PO BOBMZTJT PG BMM NVMUJFMFDUJPO EJTUSJDUJOH QMBOT  5IF QSPQPSUJPO PO UIF WFSUJDBM BYJT JT UIVT JOUFS QSFUBCMF BT UIF iDPOàEFODF MFWFMu BTTPDJBUFE XJUI JOUFSWFOUJPO BU B HJWFO àSTU FMFDUJPO &( UISFTIPME 7FSUJDBM MJOFT JOEJDBUF  DSFEJCMF JOUFSWBMT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 70 of 76
1.00 0.95 0.90 0.85 0.80 0.75
-0.15 -0.12 -0.09 -0.06 -0.03 0.00 0.03 0.06 0.09 0.12 0.15
Efficiency Gap Threshold 'JHVSF  1SPQPSUJPO PG QMBOT CFJOH FJUIFS B
 VOEJTUVSCFE PS C
 JG MFGU VOEJT UVSCFE XPVME DPOUJOVF UP QSPEVDF POFTJEFE QBSUJTBO BEWBOUBHF OP TJHO DIBOHF JO TVCTFRVFOU &( NFBTVSFT
 BT B GVODUJPO PG UIF FGàDJFODZ HBQ UISFTIPME IPSJ [POUBM BYJT
 CBTFE PO BOBMZTJT PG QPTU QMBOT BOE FMFDUJPOT 5IF QSPQPSUJPO PO UIF WFSUJDBM BYJT JT UIVT JOUFSQSFUBCMF BT UIF iDPOàEFODF MFWFMu BTTPDJBUFE XJUI JOUFSWFOUJPO BU B HJWFO àSTU FMFDUJPO &( UISFTIPME 7FSUJDBM MJOFT JOEJDBUF  DSFEJCMF JOUFSWBMT


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 71 of 76
&(  ๞ XPVME CF SFKFDUFE UIFO XFE CF iXSPOHu UP EP TP JO BCPVU  PG UIPTF DBTFT JO UIF TFOTF UIBU JG MFGU JO QMBDF UIF QMBO XPVME HP PO UP QSPEVDF BU MFBTU POF FMFDUJPO XJUI &(  
 5IF UPUBM FSSPS SBUF JO UIJT DBTF XPVME CF  PG BMM QMBOT &RVJWBMFOUMZ  PG BMM QMBOT XPVME CF FJUIFS MFGU VOEJTUVSCFE PS BQQSPQSJBUFMZ TUSVDL EPXO PS BNFOEFE CZ B DPVSU HJWFO UIF IJTUPSJDBM SFMBUJPO TIJQ CFUXFFO iàSTU FMFDUJPOu &( NFBTVSFT BOE UIF TFRVFODF PG &( NFBTVSFT UIBU GPMMPX
 $PODMVTJPO UIF 8JTDPOTJO QMBO
8JTDPOTJO IBT IBE UXP FMFDUJPOT GPS JUT MFHJTMBUVSF VOEFS UIF QMBO DVSSFOUMZ JO QMBDF JO  BOE  #PUI FMFDUJPOT XFSF TVCKFDU UP DPOTJEFSBCMF SBUFT PG VODPOUFTUFEOFTT  PG  TFBUT JO  BOE  PG  TFBUT JO 
 CVU UIFTF SBUFT BSF IBSEMZ VOVTVBM 8JTDPOTJOT SBUFT PG VODPOUFTUFE EJTUSJDUT JO UIFTF UXP FMFDUJPOT BSF MPX UP NPEFSBUF DPNQBSFE UP PUIFS TUBUFT 8F VTF UIF SFMBUJPOTIJQ CFUXFFO TUBUF MFHJTMBUJWF FMFDUJPO SFTVMUT BOE QSFTJEFOUJBM FMFDUJPO SFTVMUT JO TUBUF MFHJTMBUJWF EJTUSJDUT BOE JODVNCFODZ
 UP JNQVUF UXPQBSUZ WPUF TIBSFT JO VODPO UFTUFE TFBUT TFF TFDUJPO 
 8JUI B DPNQMFUF TFU PG WPUF TIBSFT XF UIFO DPNQVUF BWFSBHF EJTUSJDUMFWFM %FNPDSBUJD UXPQBSUZ WPUF TIBSF 7
 BOE OPUF UIF TIBSF PG TFBUT DPOUFTUFE BOE VODPOUFTUFE
 XPO CZ %FNPDSBUJD DBOEJEBUFT 4

*O 8JTDPOTJO JO  BOE BGUFS JNQVUBUJPOT GPS VODPOUFTUFE TFBUT 7 JT FT UJNBUFE UP CF  ๢
 SFDBMM UIBU 0CBNB XPO  PG UIF UXPQBSUZ QSFTJEFOUJBM WPUF JO 8JTDPOTJO JO  :FU %FNPDSBUT XPO POMZ  TFBUT JO UIF  TFBU MFHJTMBUVSF 4  
 NBLJOH 8JTDPOTJO POF PG  TUBUFT JO  XIFSF XF FTUJNBUF 7   CVU 4   BOE XIFSF %FNPDSBUT GBJMFE UP XJO B NBKPSJUZ PG MFHJTMBUJWF TFBUT EFTQJUF 7   UIF PUIFS TUBUFT BSF 'MPSJEB *PXB .JDIJHBO /PSUI $BSPMJOB BOE 1FOOTZMWBOJB
 *O  7 JT FTUJNBUFE UP CF  ๢
 BOE %FNPDSBUT XPO  PG  TFBUT 4  

5IJT QSPWJEFT UIF SBX JOHSFEJFOUT GPS DPNQVUJOH UIF FGàDJFODZ HBQ &(
 GPS UIFTF UXP FMFDUJPOT SFDBMMJOH FRVBUJPO 
 3FQFBUJOH UIFTF DBMDVMBUJPOT BDSPTT B MBSHF TFU PG TUBUF FMFDUJPOT QSPWJEFT B CBTJT GPS BTTFTTJOH XIFUIFS UIF FGàDJFODZ HBQ FTUJNBUFT GPS 8JTDPOTJO JO  BOE  BSF OPUFXPSUIZ
8JTDPOTJOT FGàDJFODZ HBQ NFBTVSFT JO  BOE  BSF  BOE  UP UXP EJHJUT PG QSFDJTJPO
 5IFTF OFHBUJWF FTUJNBUFT JOEJDBUF UIF EJTQBSJUZ CFUXFFO


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 72 of 76

Highlighting Wisconsin plan 5

40

50

60

70

100

100

90

90

80

80

Democratic Share of Major-Party Seat Wins

70

70

60

60

50

50

Efficiency gap and 95% CI

40

0.15 1 0.10

40

2

0.05

30

0.00 -0.05

30

-0.10

-0.15

20

1

2 20

40

50

60

70

Average District Two-Party Vote

'JHVSF  4FBUT WPUFT BOE UIF FGàDJFODZ HBQ SFDPSEFE VOEFS UIF 8JTDPOTJO QMBO  BOE  0SBOHF MJOF TIPXT UIF TFBUTWPUFT DVSWF JG UIF FGàDJFODZ HBQ XFSF [FSP UIF FGàDJFODZ HBQ JO BOZ FMFDUJPO JT UIF WFSUJDBM EJTUBODF GSPN UIF DPS SFTQPOEJOH EBUB QPJOU UP UIF PSBOHF MJOF (SBZ QPJOUT JOEJDBUF FMFDUJPOT GSPN PUIFS TUBUFT BOE FMFDUJPOT 
 )PSJ[POUBM MJOFT DPWFS B  DSFEJCMF JOUFSWBM GPS %FNPDSBUJD BWFSBHF EJTUSJDU UXPQBSUZ WPUF TIBSF HJWFO JNQVUBUJPOT JO VODPOUFTUFE EJTUSJDUT 5IF JOTFU JO UIF MPXFS SJHIU TIPXT UIF TFRVFODF PG FG àDJFODZ HBQ NFBTVSFT SFDPSEFE VOEFS UIF QMBO WFSUJDBM MJOFT BSF  DSFEJCMF JOUFSWBMT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 73 of 76
WPUF TIBSFT BOE TFBU TIBSFT JO UIFTF FMFDUJPOT XIJDI JO UVSO JT DPOTJTUFOU XJUI QBSUJTBO HFSSZNBOEFSJOH 5IF OFHBUJWF &( FTUJNBUFT HFOFSBUFE JO  BOE  BSF VOVTVBM SFMBUJWF UP 8JTDPOTJOT QPMJUJDBM IJTUPSZ TFF 'JHVSF 
 5IF  FTUJNBUF JT UIF MBSHFTU &( FTUJNBUF JO 8JTDPOTJO PWFS UIF  ZFBS QFSJPE TQBOOFE CZ UIJT BOBMZTJT 
 UIF  FTUJNBUF JT UIF GPVSUI MBSHFTU CF IJOE   BOE  BMUIPVHI JU JT FTTFOUJBMMZ JOEJTUJOHVJTIBCMF GSPN UIF  FTUJNBUF
 5IF KVNQ GSPN UIF &( WBMVFT CFJOH SFDPSEFE UPXBSET UIF FOE PG UIF QSFWJPVT EJTUSJDUJOH QMBO JO 8JTDPOTJO 
 UP UIF  BOE  WBMVFT TUSPOHMZ TVHHFTUT UIBU UIF EJTUSJDUJOH QMBO BEPQUFE JO  JT B ESJWFS PG UIF DIBOHF TZTUFNBUJDBMMZ EFHSBEJOH UIF FGàDJFODZ XJUI XIJDI %FNPDSBUJD WPUFT USBOTMBUF JOUP %FNPDSBUJD TFBUT JO UIF 8JTDPOTJO TUBUF MFHJTMBUVSF
8JTDPOTJOT  BOE  &( FTUJNBUFT BSF BMTP MBSHF SFMBUJWF UP UIF &( TDPSFT CFJOH HFOFSBUFE DPOUFNQPSBOFPVTMZ JO PUIFS TUBUF MFHJTMBUJWF FMFDUJPOT 'JH VSF  TIPXT &( FTUJNBUFT SFDPSEFE VOEFS QMBOT JO QMBDF TJODF UIF QPTU DFOTVT SPVOE PG SFEJTUSJDUJOH UIF &( FTUJNBUFT BSF HSPVQFE CZ TUBUF BOE PSEFSFE XJUI 8JTDPOTJO IJHIMJHIUFE 8F IBWF  &( TDPSFT GSPN FMFDUJPOT IFME TJODF UIF MBTU SPVOE PG SFEJTUSJDUJOH "NPOH UIFTF  TDPSFT 8JTDPOTJOT &( TDPSFT SBOL FJHUI   $*  UP 
 BOE TFWFOUFFOUI   $*  UP 

5IF IJTUPSJDBM BOBMZTJT SFQPSUFE BCPWF TVQQPSUT UIF QSPQPTJUJPO UIBU 8JTDPO TJOT &( TDPSFT BSF MJLFMZ UP FOEVSF PWFS UIF DPVSTF PG UIF QMBO 'FX TUBUFT FWFS SFDPSE &( TDPSFT BT MBSHF BT UIPTF PCTFSWFE JO 8JTDPOTJO JOEFFE UIFSF JT WJSUV BMMZ OP QSFDFEFOU GPS UIF MPQTJEFE UXP FMFDUJPO TFRVFODF PG &( TDPSFT HFOFSBUFE JO 8JTDPOTJO JO  BOE  JO UIF EBUB * BOBMZ[F IFSF 
 5IF DMPT FTU IJTUPSJDBM BOBMPHT TVHHFTU UIBU B EJTUSJDUJOH QMBO UIBU HFOFSBUFT BO PQFOJOH UXPFMFDUJPO TFRVFODF PG &( TDPSFT MJLF UIPTF GSPN 8JTDPOTJO XJMM DPOUJOVF UP EP TP HFOFSBUJOH TFBU TIBSFT GPS %FNPDSBUT UIBU BSF XFMM CFMPX UIPTF XF XPVME FYQFDU GSPN B OFVUSBM QMBO
5IF $VSSFOU 8JTDPOTJO 1MBO JT HFOFSBUJOH FTUJNBUFT PG UIF FGàDJFODZ HBQ GBS JO FYDFTT PG UIF QSPQPTFE BDUJPOBCMF UISFTIPME TFF TFDUJPO 
 *O  FMFDUJPOT UP UIF 8JTDPOTJO TUBUF MFHJTMBUVSF UIF FGàDJFODZ HBQ JT FTUJNBUFE UP CF  JO  UIF FGàDJFODZ HBQ JT FTUJNBUFE UP CF  #PUI NFBTVSFT BSF TFQBSBUFMZ XFMM CFZPOE UIF DPOTFSWBUJWF  UISFTIPME TVHHFTUFE CZ UIF BOBMZTJT PG FGàDJFODZ HBQ NFBTVSFT PCTFSWFE GSPN  UP UIF QSFTFOU


Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 74 of 76

Efficiency gap

0.05

0.00

-0.05

-0.10

-0.15

1970

1980

1990

2000

2010

'JHVSF  )JTUPSZ PG FGàDJFODZ HBQ FTUJNBUFT JO 8JTDPOTJO  7FSUJDBM MJOFT JOEJDBUF  DSFEJCMF JOUFSWBMT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 75 of 76

RI VT
CO AK
HI ME KY
OR CA MA MT UT NV AR IL WA CT WV NM DE TN IA SC TX
OK PA MN GA
MO
OH WY NY IN KS WI NC VA MI FL

-0.2

-0.1

0.0

0.1

0.2

Efficiency Gap measures, 2011-2014

'JHVSF  &( FTUJNBUFT JO  BOE  HSPVQFE CZ TUBUF BOE PSEFSFE )PS J[POUBM CBST JOEJDBUF  DSFEJCMF JOUFSWBMT



Case: 3:15-cv-00421-bbc Document #: 1-3 Filed: 07/08/15 Page 76 of 76
3FGFSFODFT
#VUMFS %BWJE BOE %POBME 4UPLFT  1PMJUJDBM DIBOHF JO #SJUBJO UIF FWPMVUJPO PG FMFDUPSBM DIPJDF -POEPO .BDNJMMJBO
&EHFXPSUI ':  i"QQMJDBUJPOT PG UIF 5IFPSZ PG 1SPCBCJMJUZu +3 4UBUJTU 4PD 
(FMNBO "OESFX BOE (BSZ ,JOH  i&TUJNBUJOH UIF $POTFRVFODFT PG &MFD UPSBM 3FEJTUSJDUJOHu +PVSOBM PG UIF "NFSJDBO 4UBUJTUJDBM "TTPDJBUJPO m
,FOEBMM . ( BOE " 4UVBSU  i5IF -BX PG $VCJD 1SPQPSUJPO JO &MFDUJPO 3FTVMUTu 5IF #SJUJTI +PVSOBM PG 4PDJPMPHZ  
m
.D(IFF &SJD  i.FBTVSJOH 1BSUJTBO #JBT JO 4JOHMF.FNCFS %JTUSJDU &MFD UPSBM 4ZTUFNTu -FHJTMBUJWF 4UVEJFT 2VBSUFSMZ  
m
/JFNJ 3JDIBSE ( BOE 1BUSJDL 'FUU  i5IF 4XJOH 3BUJP "O &YQMBOBUJPO BOE BO "TTFTTNFOUu -FHJTMBUJWF 4UVEJFT 2VBSUFSMZ m
/JFNJ 3JDIBSE ( BOE 4JNPO +BDLNBO  i#JBT BOE 3FTQPOTJWFOFTT JO 4UBUF -FHJTMBUJWF %JTUSJDUJOHu -FHJTMBUJWF 4UVEJFT 2VBSUFSMZ m
4UFQIBOPQPMPVT /JDIPMBT 0 BOE &SJD . .D(IFF  i1BSUJTBO (FSSZNBO EFSJOH BOE UIF &GàDJFODZ (BQu 6OJWFSTJUZ PG $IJDBHP -BX 3FWJFX  'PSUI DPNJOH
5VGUF &EXBSE 3  i5IF 3FMBUJPOTIJQ #FUXFFO 4FBUT BOE 7PUFT JO 5XP1BSUZ 4ZTUFNTu "NFSJDBO 1PMJUJDBM 4DJFODF 3FWJFX m


Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 1 of 11
1. Each of the 17 Republican senators signed the secrecy agreements as follows: a) Robert Cowles, the elected Republican Senator from the 2nd Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 26, 2011. b) Alberta Darling, the elected Republican Senator from the 8th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011. c) Michael Ellis, the elected Republican Senator from the 19th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 26, 2011. d) Glenn Grothman, the elected Republican Senator from the 4th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 21, 2011. e) Sheila Harsdorf, the elected Republican Senator from the 10th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011. f) Neal Kedzie, the elected Republican Senator from the 11th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011. g) Frank Lasee, the elected Republican Senator from the 1st Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 21, 2011.
EXHIBIT 4

Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 2 of 11

!

!

h) Mary Lazich, the elected Republican Senator from the 28th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011.
i) Joseph Leibham, the elected Republican Senator from the 9th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 21, 2011.
j) Terry Moulton, the elected Republican Senator from the 23rd Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 10, 2011.
k) Luther S. Olson, the elected Republican Senator from the 14th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 10, 2011.
l) Leah Vukmir, the elected Republican Senator from the 5th Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 4, 2011.
m) Van H. Wanggaard, the elected Republican Senator from the 21st Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 28, 2011.
n) Rich Zipperer, the elected Republican Senator from the 33rd Senate District, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011.
2. Under the direction and supervision of Mr. McLeod, Adam Foltz met with 58 Republican members of the Wisconsin State Assembly and asked that each representative sign a secrecy

[Type!text]!

[Type!text]!

[Type!text]!

Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 3 of 11

!

!

agreement captioned “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the development of the legislative reapportionment plan for which Michael, Best & Friedrich had been hired to supervise. The secrecy agreement indicated that McLeod had “instructed” Mr. Foltz to meet with certain members of the Assembly to discuss the reapportionment process and that said conversations were to be considered subject to the attorney client and attorney work product privileges. Each of the 58 representatives signed the secrecy agreements between March 31, 2011 and June 2, 2011, and each thereby agreed not to disclose the fact and/or contents of the discussions or any draft documents within their possession related to reapportionment. The individual meetings occurred at Mr. Foltz’s office at Michael, Best and Friedrich. Each of the 58 Republican representatives signed the secrecy agreements as follows:
a) Tyler August, the elected Republican Representative from Assembly District 32, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 26, 2011.
b) Joan Ballweg, the elected Republican Representative from Assembly District 41, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011.
c) Kathleen M. Bernier, the elected Republican Representative from Assembly District 68, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 4, 2011.
d) Garey Bies the elected Republican Representative from Assembly District 1, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 12, 2011.

[Type!text]!

[Type!text]!

[Type!text]!

Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 4 of 11

!

!

e) Ed Brooks, the elected Republican Representative from Assembly District 50, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 26, 2011.
f) David Craig, the elected Republican Representative from Assembly District 83, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on June 1, 2011.
g) Michael Endsley, the elected Republican Representative from Assembly District 26, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 4, 2011.
h) Paul Farrow, the elected Republican Representative from Assembly District 98, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
i) Mark Honadel, the elected Republican Representative from Assembly District 21, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011.
j) Andre Jacque, the elected Republican Representative from Assembly District 2, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 26, 2011.
k) Chris Kapenga, the elected Republican Representative from Assembly District 33, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 27, 2011.

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l) Dean R. Kaufert, the elected Republican Representative from Assembly District 55, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011.
m) Samantha Kerkman, the elected Republican Representative from Assembly District 66, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 19, 2011.
n) Steve Kestell, the elected Republican Representative from Assembly District 27, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 12, 2011.
o) Joel Kleefisch, the elected Republican Representative from Assembly District 38, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 5, 2011.
p) John L. Klenke, the elected Republican Representative from Assembly District 88, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.
q) Joseph K. Knilans, the elected Republican Representative from Assembly District 44, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
r) Dan Knodl, the elected Republican Representative from Assembly District 24, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.

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Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 6 of 11

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s) Dean Knudson, the elected Republican Representative from Assembly District 30, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
t) Dale Kooyenga, the elected Republican Representative from Assembly District 14, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 4, 2011.
u) William F. Kramer, the elected Republican Representative from Assembly District 97, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.
v) Scott Krug, the elected Republican Representative from Assembly District 72, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 11, 2011.
w) Michael Kuglitsch, the elected Republican Representative from Assembly District 84, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 5, 2011.
x) Tom Larson, the elected Republican Representative from Assembly District 67, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011.
y) Daniel R. LeMahieu, the elected Republican Representative from Assembly District 59, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 4, 2011.

[Type!text]!

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Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 7 of 11

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z) Michelle Litgens, in her individual and official capacity as the elected Republican Representative from Assembly District 56, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011.
aa) Amy Loudenbeck, in her individual and official capacity as the elected Republican Representative from Assembly District 45, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
bb) Howard Marklein, the elected Republican Representative from Assembly District 51, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.
cc) Dan Meyer, the elected Republican Representative from Assembly District 34, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 20, 2011.
dd) Jeffrey Mursau, the elected Republican Representative from Assembly District 36, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 27, 2011.
ee) John Murtha, the elected Republican Representative from Assembly District 29, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011.
ff) Steven L. Nass, the elected Republican Representative from Assembly District 31, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 26, 2011.

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Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 8 of 11

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gg) Lee Nerison, the elected Republican Representative from Assembly District 96, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 4, 2011.
hh) John Nygren, the elected Republican Representative from Assembly District 89, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 12, 2011.
ii) Alvin R. Ott, the elected Republican Representative from Assembly District 3, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 27, 2011.
jj) Jim Ott, the elected Republican Representative from Assembly District 23, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on June 2, 2011.
kk) Kevin David Peterson, the elected Republican Representative from Assembly District 40, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 5, 2011.
ll) Jerry Petrowski, the elected Republican Representative from Assembly District 86, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 27, 2011.
mm) Warren Petryck, the elected Republican Representative from Assembly District 93, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011.

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Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 9 of 11

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nn) Don Pridemore, the elected Republican Representative from Assembly District 99, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on March 31, 2011.
oo) Keith Ripp, the elected Republican Representative from Assembly District 47, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.
pp) Roger Rivard, the elected Republican Representative from Assembly District 75, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 4, 2011.
qq) Eric Severson, the elected Republican Representative from Assembly District 28, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
rr) Richard Spanbauer, the elected Republican Representative from Assembly District 53, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 12, 2011.
ss) Jim Steineke, the elected Republican Representative from Assembly District 5, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 14, 2011.
tt) Jeff Stone, the elected Republican Representative from Assembly District 82, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on June 2, 2011.

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Case: 3:15-cv-00421-bbc Document #: 1-4 Filed: 07/08/15 Page 10 of 11

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uu) Pat Strachota, the elected Republican Representative from Assembly District 58, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 4, 2011.
vv) Dewey Stroebel, the elected Republican Representative from Assembly District 60, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on June 1, 2011.
ww) Scott Suder, the elected Republican Representative from Assembly District 69, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 6, 2011.
xx) Gary Tauchen, the elected Republican Representative from Assembly District 6, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.
yy) Jeremy Theisfeldt, the elected Republican Representative from Assembly District 52, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 12, 2011.
zz) Thomas P. Tiffany, the elected Republican Representative from Assembly District 35, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
aaa) Travis Tramel, the elected Republican Representative from Assembly District 49, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 9, 2011.

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bbb) Karl Van Roy, the elected Republican Representative from Assembly District 90, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 13, 2011.
ccc) Chad Weininger, the elected Republican Representative from Assembly District 4, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 21, 2011.
ddd) Mary L. Williams, in her individual and official capacity as the elected Republican Representative from Assembly District 87, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on April 7, 2011.
eee) Evan Wynn, the elected Republican Representative from Assembly District 43, signed a secrecy agreement with Michael Best and Friedrich by Eric M. McLeod on May 3, 2011.

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JS 44 (Rev. )

Case: 3:15-cv-00421-bbCc IVDIoLcuCmOenVt E#:R1-S5HFEiEleTd: 07/08/15 Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS See attached

DEFENDANTS See attached

(b) County of Residence of First Listed Plaintiff DANE
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant DANE

(IN U.S. PLAINTIFF CASES ONLY)

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) See attached

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

u 110 Insurance

PERSONAL INJURY

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excl. Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

Med. Malpractice

REAL PROPERTY

CIVIL RIGHTS

u 210 Land Condemnation

u 440 Other Civil Rights

u 220 Foreclosure

u 441 Voting

u 230 Rent Lease & Ejectment u 442 Employment

u 240 Torts to Land

u 443 Housing/

u 245 Tort Product Liability

Accommodations

u 290 All Other Real Property u 445 Amer. w/Disabilities -

Employment

u 446 Amer. w/Disabilities -

Other

u 448 Education

PERSONAL INJURY u 625 Drug Related Seizure

u 422 Appeal 28 USC 158

u 365 Personal Injury -

of Property 21 USC 881 u 423 Withdrawal

Product Liability u 690 Other

28 USC 157

u 367 Health Care/

Pharmaceutical

PROPERTY RIGHTS

Personal Injury

u 820 Copyrights

Product Liability

u 830 Patent

u 368 Asbestos Personal

u 840 Trademark

Injury Product

Liability

LABOR

SOCIAL SECURITY

PERSONAL PROPERTY u 710 Fair Labor Standards

u 861 HIA (1395ff)

u 370 Other Fraud

Act

u 862 Black Lung (923)

u 371 Truth in Lending u 720 Labor/Mgmt. Relations u 863 DIWC/DIWW (405(g))

u 380 Other Personal

u 740 Railway Labor Act

u 864 SSID Title XVI

Property Damage u 751 Family and Medical

u 865 RSI (405(g))

u 385 Property Damage

Leave Act

Product Liability u 790 Other Labor Litigation

u 791 Empl. Ret. Inc.

PRISONER PETITIONS

Security Act

FEDERAL TAX SUITS

u 510 Motions to Vacate

u 870 Taxes (U.S. Plaintiff

Sentence

or Defendant)

Habeas Corpus:

u 871 IRS—Third Party

u 530 General

26 USC 7609

u 535 Death Penalty

IMMIGRATION

u 540 Mandamus & Other u 462 Naturalization Application

u 550 Civil Rights

u 463 Habeas Corpus -

u 555 Prison Condition

Alien Detainee

u 560 Civil Detainee -

(Prisoner Petition)

Conditions of

u 465 Other Immigration

Confinement

Actions

u 6 u6
OTHER STATUTES
u 375 False Claims Act u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters u 895 Freedom of Information
Act u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of Agency Decision u 950 Constitutionality of State Statutes

V. ORIGIN
u 1 Original Proceeding

(Place an “X” in One Box Only)

u 2 Removed from

u 3 Remanded from

State Court

Appellate Court

u 4 Reinstated or Reopened

u

5

Transferred from another district

(specify)

u 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 USC 1983 VI. CAUSE OF ACTION Brief description of cause:

Unconstitutional partisan gerrymandering

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
07/07/2015
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Peter G. Earle

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case: 3:15-cv-00421-bbc Document #: 1-5 Filed: 07/08/15 Page 2 of 2
Attachment to Civil Cover Sheet
Plaintiffs
Whitford, William; Anclam, Roger; Bunting, Emily; Donohue, Mary Lynne; Harris, Helen; Jensen, Wayne; Johnson, Wendy Sue; Mitchell, Janet; Seaton, Allison; Seaton, James; Wallace, Jerome; Winter, Donald
Defendants
Wisconsin Government Accountability Board, Nichol, Gerald C., Chair; Barland, Thomas, Secretary; Franke, John, Member; Harold, Froehlich, Member; Kennedy, Kevin J., Executive Director; Lamelas, Elsa, Vice Chair; Vocke, Timothy, Member
Plaintiffs’ Attorneys
Peter G. Earle Law Office of Peter G. Earle 839 North Jefferson Street Suite 300 Milwaukee, WI 53202 (414) 276-1076
Michele Odorizzi Mayer Brown LLP 71 S. Wacker Dr. Chicago, IL 60606 (312) 701-7309
Nicholas O. Stephanopoulos Assistant Professor University of Chicago Law School 1111 E. 60th St., Suite 510 Chicago, IL 60637 (773) 702-4226
Paul Strauss Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. 100 N. LaSalle St., Suite 600 Chicago, IL 60602 (312) 202-3649
Ruth Greenwood Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. 100 N. LaSalle St., Suite 600 Chicago, IL 60602 (312) 888-4194

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

WILLIAM WHITFORD, ROGER ANCLAM, EMILY BUNTING, MARY LYNNE DONOHUE, HELEN HARRIS, WAYNE JENSEN, WENDY SUE JOHNSON, JANET MITCHELL, ALLISON SEATON, JAMES SEATON, JEROME WALLACE and DONALD WINTER,
Plaintiffs,

OPINION and ORDER 15-cv-421-bbc

v.

BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, STEVE KING, DON MILLIS, and MARK L. THOMSEN,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
On November 21, 2016, we issued our opinion and order holding that the redistricting plan embodied in Act 43 constituted an unconstitutional partisan gerrymander. We also solicited the views of the parties as to the appropriate

2 remedy. Having received and considered the parties’ submissions, we now address the issue of remedy.
OPINION The parties agree that the appropriate remedy in this case is to enter an injunction prohibiting the use of Act 43’s districting plan in future elections.1 The parties dispute, however, who should draft a remedial map, how that map should be drafted, and when it should be implemented. It is the prerogative of the State to determine the contours of a new map setting forth the electoral districts of the Assembly. The Supreme Court has made it clear that “[w]hen a federal court declares an existing apportionment scheme unconstitutional, it is … appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan.” Wise v. Lipscomb, 437 U.S. 535, 540 (1978).2 The plaintiffs nevertheless urge that providing the Legislature an opportunity to enact a remedial plan is impracticable here because Wisconsin’s elected branches have compiled an
1 See R.169 (Defendants’ Brief on Remedies) at 5 (“The proper remedy is for the Court to enter an injunction directing the Legislature to draft a new map consistent with its opinion.”); R.170 (Plaintiffs’ Brief on Remedies) at 2 (“To begin with, as soon as possible, the Court should enter an injunction barring any further use of the Current Plan.”). 2 See also R.170 at 5 (citing same).

3 “objectionable” record of defending its unconstitutional plan.3 In some cases, such an exception to the general rule may be appropriate.4 The record in our case, however, contains no evidence of the malice or intransigence that would justify our abrogating such a fundamental principle. Although the state actors in this case certainly intended the partisan effect that they in fact produced, the record does not permit us to ascribe to them an unwillingness to adhere to an order of this Court or to conform the allocation of seats in the state legislature to constitutional requirements.
The plaintiffs further submit that, if we permit the Wisconsin legislature to redistrict, we should give it “[d]etailed [i]nstructions.”5 Several considerations militate against such a course. Consistent with our approach to remedying other constitutional violations, our only interest in the redistricting of the State is to “correct … the condition that offends the Constitution.” Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971). “[A] state’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.” Wise, 437 U.S. at 540 (alteration in original) (quoting Burns v.
3 Id. at 7. 4 See Hays v. Louisiana, 936 F. Supp. 360, 372 (W.D. La. 1996) (refusing to give the Louisiana legislature an opportunity to pass a third remedial plan); Terrazas v. Slagle, 789 F. Supp. 828, 838–39 (W.D. Tex. 1991) (noting the “unusually lethargic” pace of the state legislature’s actions). 5 R.170 at 10.

4 Richardson, 384 U.S. 73, 85 (1966)). This very basic principle is grounded not only on the constitutional limitations of federal authority but also on the practical reality that it is the state legislature, not the federal court, that is “the best institution ‘to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality.’” Gorin v. Karpan, 775 F. Supp. 1430, 1445–46 (D. Wyo. 1991) (quoting Connor v. Finch, 431 U.S. 407, 414–15 (1977)). The record in this case makes abundantly clear that the drafters of the 2010 reapportionment labored intensely over their project. Although, in the end, they produced what we have found to be an unconstitutional result, they wrestled along the way with many legitimate political considerations. Indeed, the record reveals that they produced many alternate maps, some of which may conform to constitutional standards. In any event, with the benefit of our ruling, state officials should be able to produce a map that, while conforming to the Constitution, will allow them to attain their legitimate political objectives. In our ruling on the merits, we set forth, at length, the nature of the constitutional violation at issue and the basis for our determination.6 Within this framework, it is the prerogative of the State to reapportion as it sees fit. It is neither necessary nor appropriate for us to embroil the Court in the Wisconsin Legislature’s deliberations.
6 See R.166.

5 Whether we should set a deadline for the State to enact a remedial plan is a question for which there are only imperfect answers. The plaintiffs ask us to set a “[s]trict [d]eadline” of April 1, 2017.7 They invite our attention to examples of courts giving state legislatures little time within which to pass remedial plans. See, e.g., Larios v. Cox, 305 F. Supp. 2d 1335, 1336 (N.D. Ga. 2004). All of those situations occurred during election years when “time [wa]s of the essence.” Johnson v. Mortham, 926 F. Supp. 1460, 1494 (N.D. Fla. 1996). For their part, the defendants maintain that, given “the uncertain nature of the law on partisan gerrymandering,” we should not require the Legislature to act until after the Supreme Court has ruled on this case.8 In a perfect world, the defendants’ suggestion would make sense and would permit us to remove ourselves even further from the State’s deliberative process. But there are several countervailing considerations that we must consider. Members of the Wisconsin Assembly are elected for a term of two years. Under the prevailing view in this Court, the people of Wisconsin already have endured several elections under an unconstitutional reapportionment scheme. If they are to be spared another such event, a new map must be drawn in time for the preparatory steps leading up to the election, such as candidate petition circulations in
7 R.170 at 10. 8 R.169 at 1.

6 mid-Spring 2018. At the same time, the defendants’ right of appeal must be protected. We also must take into consideration the drain on legislative resources and energy in enacting a new plan and be cognizant that the Supreme Court has many other important issues on its docket and may well need a significant amount of time to finish its work on this case.
We think that all of these competing considerations can best be accommodated by requiring that the Legislature enact, and the Governor approve, a new redistricting map by November 1, 2017. This deadline affords the Legislature ample time to enact a plan contingent on the Supreme Court’s affirmance of our judgment. While it allows the defendants and the candidates to make plans for the November 2018 election only on a contingent basis, at least they will be able to prepare for that contingency in the context of a concrete alternate map.
The considerations that we just have discussed make it clear that we do not believe that we ought to stay our judgment pending appeal, as the defendants request. In assessing the probability of success on the merits, while the majority of the Court remains firm in its belief of the correctness of the decision, “the absence of a well-trodden path”9 is no doubt of some relevance in considering the appropriateness of a stay. See, e.g., Ctr. for Int’l Envtl. Law v. Office of the U.S.
9 R.166 at 31.

7 Trade Representative, 240 F. Supp. 2d 21, 22–23 (D.D.C. 2003) (considering, among other factors, that “this case presents an issue of first impression”). We also must take into respectful consideration the dissent of our number on the merits. Nevertheless, the defendants also must establish irreparable injury absent a stay. See, e.g., Larios, 305 F. Supp. 2d at 1336–37. Here, we must balance the harm to the defendants against the harm to the plaintiffs. Much of our earlier discussion is pertinent here. In setting a November 1, 2017 deadline for the enactment of at least a contingent replacement map, we considered the State’s burden in enacting even a contingent remedial plan and have concluded that the State’s thorough earlier work may significantly assuage the task now before them. Additionally, by choosing to enact a plan contingent on the Supreme Court’s affirming our judgment, the defendants will retain easily the present map if the Supreme Court does not agree with our disposition.
ORDER IT IS ORDERED that the defendants are enjoined from using the districting plan embodied in Act 43 in all future elections. IT IS FURTHER ORDERED that the defendants have a remedial redistricting plan for the November 2018 election, enacted by the Wisconsin Legislature and signed by the Governor, in place no later than November 1, 2017.

8 This plan must comply with our November 21, 2016 order but may be contingent upon the Supreme Court’s affirmance of our November 21, 2016 order.
The clerk of the court is directed to enter judgment in favor of the plaintiffs. Entered this 27th day of January, 2017.
BY THE COURT:
/s/ KENNETH F. RIPPLE Circuit Judge
/s/ BARBARA B. CRABB District Judge
/s/ WILLIAM C. GRIESBACH District Judge

 
 No. 16-1161
IN THE
Supreme Court of the United States

BEVERLY R. GILL, ET AL., v.

Appellants,

WILLIAM WHITFORD, ET AL., Appellees.

On Appeal From The United States District Court For The Western District Of Wisconsin

BRIEF OF THE WISCONSIN INSTITUTE FOR LAW AND LIBERTY AS AMICUS CURIAE IN SUPPORT
OF APPELLANTS

RICHARD M. ESENBERG WISCONSIN INSTITUTE FOR
LAW AND LIBERTY 1139 East Knapp Street Milwaukee, WI 53202 (414) 727-9455 rick@will-law.org

DOUGLAS R. COX Counsel of Record
AMIR C. TAYRANI BRIAN M. LIPSHUTZ DAVID W. CASAZZA* GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500 dcox@gibsondunn.com

* Admitted only in New York; practicing under the supervision of principals of the firm.
Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii
Interest of Amicus Curiae ...........................................1
Summary of Argument................................................2
Argument ..................................................................... 3
I. Partisan Gerrymandering Claims Are Not Justiciable................................................5
A. This Court’s Attempts To Wrestle With Political Gerrymandering Claims Provide Conflicting Precedents And Inadequate Guidance To District Courts....................6
B. The Thirteen Years Of Confusion Following This Court’s Decision In Vieth v. Jubelirer Demonstrate That No Manageable Standard Will Emerge..............................................9
C. Repeated Litigation Over Redistricting Damages The Political Process And The Courts ..........12
D. Holding Partisan Gerrymandering Claims Nonjusticiable Reaffirms The Outcome Of Vieth And Would Not Implicate Stare Decisis Concerns .................................................15
II. A Plan That Complies With Traditional Redistricting Criteria Is Not An Unconstitutional Political Gerrymander ................................................17
Conclusion .................................................................23

ii
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) .............................. 21, 22, 23
Ala. Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285 (M.D. Ala. 2013) ........................................................... 4, 10, 11
Ala. Legislative Black Caucus v. Alabama, No. 2:12-cv-691, 2017 WL 378674 (M.D. Ala. Jan. 20, 2017) .....................................15
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ...................................... 4, 14
Baker v. Carr, 369 U.S. 186 (1962)................................................6
Burns v. Richardson, 384 U.S. 73 (1966)..................................................7
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................................5
Cox v. Larios, 542 U.S. 947 (2004)................................................5
Davis v. Bandemer, 478 U.S. 109 (1986) ...................................... 7, 8, 11
Ferrell v. Hall, 406 U.S. 939 (1972)................................................7

iii
Ferrell v. Hall, 339 F. Supp. 73 (W.D. Okla. 1972)........................7
Fortson v. Dorsey, 379 U.S. 433 (1965) .......................................... 7, 22
Gaffney v. Cummings, 412 U.S. 735 (1973) .......................................... 7, 22
Gomillion v. Lightfoot, 364 U.S. 339 (1960)................................................6
INS v. Chadha, 462 U.S. 919 (1983)................................................4
Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976)................................................6
Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 68 F.R.D. 668 (S.D. Tex. 1975) ..............................7
Jones v. United States, 137 U.S. 202 (1890)................................................4
Kerr v. Hickenlooper, 759 F.3d 1186 (10th Cir. 2014)............................15
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) .......................... 8, 9, 11, 14, 23
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)................................................5
Miller v. Johnson, 515 U.S. 900 (1995) .............................. 2, 20, 21, 24
Montejo v. Louisiana, 556 U.S. 778 (2009) ........................................ 16, 17
Nixon v. United States, 506 U.S. 224 (1993)................................................4

iv
Pearson v. Callahan, 555 U.S. 223 (2009) ........................................ 16, 17
Perez v. Texas, No. 11-360, 2011 WL 9160142 (W.D. Tex. Sept. 2, 2011)................................................11
Radogno v. Ill. State Bd. of Elections, No. 11-4884, 2011 WL 5868225 (N.D. Ill. Nov. 22, 2011) ............................................. 4, 10
Radogno v. Ill. State Bd. of Elections, No. 11-4884, 2011 WL 5025251 (N.D. Ill. Oct. 21, 2011)........................................6, 10, 14
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016)................................10
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 166 F. Supp. 3d 553 (E.D.N.C. 2016) ..................10
Republican Party of N.C. v. Hunt, No. 94-2410, 1996 WL 60439 (4th Cir. Feb. 12, 1996)................................................15
Reynolds v. Sims, 377 U.S. 533 (1964)............................................2, 6
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974)................................................4
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)................................................17
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) ......................10
Shaw v. Reno, 509 U.S. 630 (1993) .................................. 19, 21, 23

v
Vieth v. Jubelirer, 541 U.S. 267 (2004) ..... 3, 5, 8, 9, 10, 11, 14, 15, 16, 17, 19, 20, 21, 23, 24
Wells v. Rockefeller, 398 U.S. 901 (1970)................................................7
Wells v. Rockefeller, 311 F. Supp. 48 (S.D.N.Y. 1970)............................7
Wesberry v. Sanders, 376 U.S. 1 (1964)....................................................6
Whitcomb v. Chavis, 403 U.S. 124 (1971)................................................7
WMCA, Inc. v. Lomenzo, 382 U.S. 4 (1965)....................................................6
WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965)..........................6
Zivotofsky v. Clinton, 566 U.S. 189 (2012)................................................2
Federal Constitutional Provisions U.S. Const. art. I, § 4.................................................14 State Constitutional Provisions Alaska Const. art. VI, § 8..........................................14 Cal. Const. art. XXI, §§ 1–3 ......................................14 Wash. Const. art. II, § 43 ..........................................14 Wis. Const. art. IV, § 3 ................................................3 Wis. Const. art. IV, § 4 ..............................................18 Statutes 2 U.S.C. § 2c...............................................................14 Apportionment Act of 1842, 5 Stat. 491 ...................14

vi
Apportionment Act of 1872, 17 Stat. 28 ...................14
Idaho Code Ann. §§ 72-1501 et seq. ..........................14
Wis. Stat. Ann. § 120.02(2) .........................................3
Proposed Legislation
H.R. 145, 115th Cong., 1st Sess. (2017) ...................14
H.R. 151, 115th Cong., 1st Sess. (2017) ...................14
H.R. 711, 115th Cong., 1st Sess. (2017) ...................14
H.R. 713, 115th Cong., 1st Sess. (2017) ...................14
H.R. 1102, 115th Cong., 1st Sess. (2017) .................14
Other Authorities
Michael Barone, Straight-Ticket Voting in Divided Government, in THE ALMANAC OF AMERICAN POLITICS 2016 (Richard E. Cohen & James A. Barnes eds., 2015)................................................12
Bill Bishop, THE BIG SORT (2009)..............................12
Jesse Sussell & James A. Thomson, ARE CHANGING CONSTITUENCIES DRIVING RISING POLARIZATION IN THE U.S. HOUSE OF REPRESENTATIVES? (Rand 2015) .....................................................................12
David Wasserman, Purple America Has All But Disappeared, FIVETHIRTYEIGHT (Mar. 8, 2017) .................. 12, 13
Hearing on Wisconsin Redistricting Plan Before the Wisconsin Legislature, 100th Leg., Extraordinary Sess. 61 (Wis. 2011).....................13

INTEREST OF AMICUS CURIAE1
The Wisconsin Institute for Law and Liberty (“WILL”) is a nonprofit organization that supports and promotes the public interest in the rule of law, individual liberty, constitutional government, and a robust civil society.
WILL is an active participant in issues of public concern to the State of Wisconsin. WILL has represented plaintiffs in election law and free speech cases. Among other matters, it successfully challenged Wisconsin laws limiting aggregate campaign contributions and donations from political committees. It also obtained a favorable settlement in a challenge to a local sign ordinance. In addition, WILL’s president and general counsel testified at a joint public hearing on redistricting before the Wisconsin Legislature in 2011. WILL strives to advance the debate concerning law and public policy in these and other areas.
1 Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae states that no counsel for a party authored this brief in whole or in part and no party or counsel for a party made a monetary contribution to fund the preparation or submission of this brief. A contribution to fund the submission of this brief was made by the Freedom Partners Institute. Pursuant to Supreme Court Rule 37.2, counsel for amicus curiae states that counsel for appellants and appellees received timely notice of intent to file this brief. Appellants have entered consent to the filing of amicus curiae briefs on the docket; appellees have consented in writing to the filing of this brief.

2
SUMMARY OF ARGUMENT
“[L]egislative reapportionment is primarily a matter for legislative consideration and determination,” Reynolds v. Sims, 377 U.S. 533, 586 (1964), because “federalism and the slim judicial competence to draw district lines weigh heavily against judicial intervention in apportionment decisions,” Miller v. Johnson, 515 U.S. 900, 934–35 (1995) (Ginsburg, J., dissenting).
Federal courts “lac[k] the authority to decide” disputes that raise political questions. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). A dispute asks a political question when there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Id.
In Wisconsin, federal courts have played a heavy hand in the redistricting process since the 1980s, imposing court-ordered plans in 1982, 1992, and 2002. See App. 9a–11a. The district court in this case struck down Wisconsin’s legislatively enacted redistricting plan without articulating a manageable standard for deciding claims of political gerrymandering. It found no departure from traditional redistricting principles, but nevertheless invalidated the plan because the election results were insufficiently proportional to the aggregated votes for Republican and Democratic candidates statewide—an election that Wisconsin does not hold.
As this case, and others like it, demonstrate, there is no settled, workable standard by which to decide how much disproportionality is too much. Therefore, federal courts have no jurisdiction. This Court should remove any lingering uncertainty by noting probable

3
jurisdiction and holding that “political gerrymandering claims are nonjusticiable.” Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion).
Even if this Court decides that a judicially manageable standard can be devised for political gerrymandering claims, it should reverse the district court because apportionment plans that adhere to traditional redistricting criteria are constitutionally permitted. The opinions in Vieth reflect a consensus that such districts cannot be challenged. See, e.g., Vieth, 541 U.S. at 306 (plurality opinion); id. at 307 (Kennedy, J., concurring in the judgment); id. at 318 (Stevens, J., dissenting); id. at 347 (Souter, J., dissenting). To affirm the district court on this issue “would commit federal and state courts to unprecedented intervention in the American political process,” id. at 306 (Kennedy, J., concurring in the judgment), and require those courts to draw district lines for everything from Congress to the State Senate to the local school board. See, e.g., Wis. Const. art. IV, § 3 (providing for political apportionment of State Senate districts); Wis. Stat. Ann. § 120.02(2) (providing for political apportionment of school boards). This would be both unwise and unworkable.
ARGUMENT
This case provides an opportunity for this Court to address a confusing area of law that has harmed the political institutions of the States and left district courts struggling to answer “unsolvable” questions, Radogno v. Ill. State Bd. of Elections, No. 11-4884, 2011 WL 5868225, at *2 (N.D. Ill. Nov. 22, 2011) (Radogno II), by employing “unknowable” standards, Ala. Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285, 1296 (M.D. Ala. 2013) (ALBC I).

4
The limit on the judicial power imposed by the political question doctrine is jurisdictional—the court has no power to render judgment in a dispute if there is no standard. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (“The concept of justiciability expresses the jurisdictional limitations imposed upon federal courts by the ‘case or controversy’ requirement of Article III.”). The political question doctrine does not prevent courts from asserting jurisdiction merely “because the issues have political implications,” INS v. Chadha, 462 U.S. 919, 943 (1983), but it does prevent a court from usurping the prerogatives of the political branches when the constitutional basis for the claim “lacks sufficient precision to afford any judicially manageable standard of review.” Nixon v. United States, 506 U.S. 224, 230 (1993); see also, e.g., Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2660 n.3 (2015) (sovereign right of the people to “reserv[e] for themselves the power to adopt laws and to veto measures passed by elected representatives” presents a nonjusticiable political question); Jones v. United States, 137 U.S. 202, 216–17 (1890) (courts have no means of reviewing executive’s determination of sovereignty over a territory).
Appellees grounded their arguments below on the First Amendment and the Equal Protection Clause. Neither provides a clear or appropriate standard to judge their claims. Appellees’ First Amendment claim is unworkable because it would subject all apportionment plans to strict scrutiny as restrictions on core political speech or associational interests, McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995), which then would preclude all political considerations. That is hard to square with the

5
position of a majority of this Court that “‘politics as usual’ is . . . itself a ‘traditional’ redistricting criterion.” Cox v. Larios, 542 U.S. 947, 952 (2004) (Scalia, J., dissenting) (citing Vieth, 541 U.S. at 285 (plurality opinion); Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment); id. at 344 (Souter, J., dissenting); id. at 355 (Breyer, J., dissenting)).
An Equal Protection Clause claim similarly provides no workable standard because partisanship is neither an immutable characteristic nor a protected classification. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (classifications by race, alienage or national origin are subject to strict scrutiny). Nothing in the Equal Protection Clause requires state governments to act in a way that minimizes the political consequences of the geographic concentration of voters by party.
After more than fifty years of wrangling with these challenges, this Court should acknowledge that there is no determinable legal standard by which a court can consistently and impartially determine whether partisan reapportionment goes “too far.” These cases are nonjusticiable.
I. PARTISAN GERRYMANDERING CLAIMS ARE NOT JUSTICIABLE
After this Court entered the redistricting fray in Baker v. Carr, 369 U.S. 186 (1962), district courts have come to anticipate apportionment litigation “[l]ike a periodic comet, once every ten years.” Radogno v. Ill. State Bd. of Elections, No. 11-4884, 2011 WL 5025251, at *1 (N.D. Ill. Oct. 21, 2011) (Radogno I). When plaintiffs allege a political gerrymander, courts struggle to make sense of the claim.

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A. This Court’s Attempts To Wrestle With Political Gerrymandering Claims Provide Conflicting Precedents And Inadequate Guidance To District Courts
This Court first held that apportionment plans were susceptible to constitutional challenges in Baker v. Carr. 369 U.S. at 187. The Court also held that apportionment plans must distribute the population in roughly equivalent districts, Reynolds v. Sims, 377 U.S. 533, 568 (1964); Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964), and cannot divide racial groups to “depriv[e members of one race] of the municipal franchise,” Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).
Soon this Court was called on to decide whether the Constitution permitted politically motivated apportionment plans. Its early decisions were inconsistent. Compare WMCA, Inc. v. Lomenzo, 382 U.S. 4 (1965), summarily aff’g 238 F. Supp. 916 (S.D.N.Y. 1965) (political apportionment claim is not justiciable); Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976), summarily aff’g 68 F.R.D. 668 (S.D. Tex. 1975) (same); Ferrell v. Hall, 406 U.S. 939 (1972), summarily aff’g 339 F. Supp. 73 (W.D. Okla. 1972) (same); Wells v. Rockefeller, 398 U.S. 901 (1970), summarily aff’g 311 F. Supp. 48 (S.D.N.Y. 1970) (same), with Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (plans that “minimize or cancel out the voting strength of racial or political elements of the voting population” are invalid); Burns v. Richardson, 384 U.S. 73, 88 (1966) (quoting Fortson); Whitcomb v. Chavis, 403 U.S. 124, 143 (1971) (same); and Gaffney v. Cummings, 412 U.S. 735, 751 (1973) (adjudicating claim of political apportionment without assessing justiciability).

7
After years of conflicting decisions, a fractured majority of this Court held that assertions of partisan apportionment presented a justiciable question in Davis v. Bandemer, 478 U.S. 109 (1986), but neither the Bandemer Court nor any subsequent Court has been able to agree on a standard for such cases.
Bandemer’s plurality opinion suggested a twopart test, with plaintiffs “required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” 478 U.S. at 127 (White, J., concurring). For the plurality, that an apportionment plan emerged from a political process was almost per se proof of discriminatory intent. Id. The plurality’s proposed test for discriminatory effect was more demanding than its intent test but less precise—the “mere lack of proportional representation” was not sufficient; rather, plaintiffs had to show that the plan “consistently degrade[d] a voter’s or a group of voters’ influence on the political process as a whole.” Id. at 131–32. Justice Powell proposed an alternative standard that considered “a number of other relevant neutral factors,” including “the configuration of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of districting”—in short, traditional redistricting criteria. Id. at 161–62, 165 (Powell, J., concurring in part and dissenting in part).
Bandemer proved difficult in application. Vieth v. Jubelirer, 541 U.S. 267, 283 (2004) (cataloging confusion in both courts and scholarship caused by Bandemer).
This Court once again considered justiciability in Vieth. The Court explicitly retreated from Bandemer, and a majority of the Justices agreed that partisan

8
gerrymandering claims could be considered only rarely, if at all. A plurality concluded “that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.” Id. at 281. The concurrence “would not foreclose all possibility of judicial relief” but agreed that, after nearly twenty years, no manageable standard had been identified, which “make[s] our intervention improper.” Id. at 306, 317 (Kennedy, J., concurring in the judgment). The four dissenting Justices authored three opinions, each proposing a different standard, none of which replicated the Bandemer plurality’s test.
Two years after Vieth, this Court returned to the question of political apportionment and once again failed to provide any standard. League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (LULAC). The Court observed that “disagreement persists” regarding the justiciability of political gerrymandering claims but declined to revisit Vieth. LULAC, 548 U.S. at 414. None of the Court’s six opinions garnered a majority. Nevertheless, a majority of the Court agreed that the plaintiffs had not identified constitutionally flawed partisanship in the mid-decade redistricting plan even though “[t]he legislature [did] seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority.” Id. at 417; see id. at 423 (plurality opinion); id. at 483 (Souter, J., concurring in part); id. at 511 (Scalia, J., concurring in the judgment in part).

9
B. The Thirteen Years Of Confusion Following This Court’s Decision In Vieth v. Jubelirer Demonstrate That No Manageable Standard Will Emerge
Bandemer’s legacy proved to be “one long record of puzzlement and consternation.” Vieth, 541 U.S. at 282; see also id. at 283. While the plurality in Vieth took this puzzlement as proof that these cases have no workable standard, the concurrence argued that district courts between Bandemer and Vieth were bound to “do no more than follow” the “single, apparently insuperable standard” described by the Bandemer plurality. Id. at 312 (Kennedy, J., concurring in the judgment). The concurrence suggested that district courts might be more successful devising a standard once freed from Bandemer. Id. They have not been. Instead, they struggle to apply caselaw that is “foggy at best,” and consists mainly of “cobbled-together plurality opinions that place district courts in the untenable position of evaluating political gerrymandering claims without any definitive standards.” Radogno I, 2011 WL 5025251, at *4.
When last this Court considered the justiciability of partisan gerrymandering, the Vieth plurality concluded that “[e]ighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application.” Vieth, 541 U.S. at 306. “[E]ssentially pointless litigation” has now continued for thirteen more years. The nine opinions in Vieth and Bandemer could not identify a rule of decision with support from a majority of the Justices. Nor did any standard obtain a majority across the six opinions authored in LULAC.

10
The predictable outcome is confusion and disquiet in the lower courts. See, e.g., Shapiro v. McManus, 203 F. Supp. 3d 579, 594 (D. Md. 2016) (“while political gerrymandering claims premised on the Equal Protection Clause remain justiciable in theory, it is presently unclear whether an adequate standard to assess such claims will emerge”); Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 166 F. Supp. 3d 553, 591 n.15 (E.D.N.C.) (observing the “extraordinary tension” among this Court’s partisan gerrymandering decisions), aff’d in part, 827 F.3d 333, 348 (4th Cir. 2016) (“the Supreme Court has not yet clarified when exactly partisan considerations cross the line from legitimate to unlawful”); ALBC I, 988 F. Supp. 2d at 1296 (“the standard for adjudication of [plaintiffs’] claim of partisan gerrymandering is ‘unknowable’”); Radogno II, 2011 WL 5868225, at *2 (“political gerrymandering claims . . . are currently ‘unsolvable’ based on the absence of any workable standard for addressing them”); Perez v. Texas, No. 11-360, 2011 WL 9160142, at *11 (W.D. Tex. Sept. 2, 2011) (dismissing political gerrymandering claims due to absence of “a reliable standard by which to measure the redistricting plan’s alleged burden on . . . representational rights”).
In short, the Supreme Court has left lower courts “ask[ing] . . . how we could ‘allow a claim to go forward that no one understands?’” ALBC I, 988 F. Supp. 2d at 1296. Predictably, “the results from one gerrymandering case to the next” have proven “disparate and inconsistent.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment).
The “efficiency gap” metric proposed by the appellees here is no solution. It is neither novel nor rooted in any constitutional right. This measure is

11
merely a dressed-up form of proportionality analysis, and even the Bandemer plurality agreed that “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” Bandemer, 478 U.S. at 132; see also LULAC, 548 U.S. at 419–20 (Kennedy, J., concurring in the judgment) (“there is no constitutional requirement of proportional representation, and equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best”).
Furthermore, the “efficiency gap” identified by the district court is attributable not to nefarious political gerrymandering but to changing political geography. Parties suffer large numbers of “wasted” votes because like-minded voters increasingly live in close proximity to each other. App. 307a–11a (discussing Wisconsin’s political geography); see also Michael Barone, Straight-Ticket Voting in Divided Government, in THE ALMANAC OF AMERICAN POLITICS 2016, at 19 (Richard E. Cohen & James A. Barnes eds., 2015) (Electoral outcomes are “largely the result of demographic clustering, the fact that heavily Democratic voting groups—blacks, Hispanics (in many states) and gentry liberals—tend to be clustered in most central cities, many sympathetic suburbs and most university towns, while Republican voters are spread more evenly around the rest of the country. . . . [C]lustering helps Republicans in elections held in equal-population districts, since Democratic votes are clustered in relatively few districts and Republican votes are more evenly spread around in the rest.”); Bill Bishop, THE BIG SORT (2009); Jesse Sussell & James A. Thomson, ARE CHANGING CONSTITUENCIES DRIVING RISING POLARIZATION IN THE U.S. HOUSE OF REPRESENTATIVES?, at 5–8 (Rand 2015).

12
Nationwide, in the 2016 election, 61% of voters cast ballots in counties that went at least 60-40 to one presidential candidate, up from 50% of voters living in such counties in 2012 and 39% of voters in 1992. David Wasserman, Purple America Has All But Disappeared, FIVETHIRTYEIGHT (Mar. 8, 2017), https://fivethirtyeight.com/features/purple-americahas-all-but-disappeared/. In 2016, only 303 of America’s 3,113 counties were decided by a singledigit margin, while in 1992, 1,096 counties were decided by single-digit margins. Id. Over the same period, the number of counties decided by margins greater than 50 percentage points increased from 96 to 1,196. Id. Minimizing the “efficiency gap” in this rapidly changing political landscape would require legislatures to draw tortured districts in a fruitless, open-ended quest for some notion of competitiveness. Nor is there any neutral way for courts to superintend such a process or to impartially redraw districts after invalidating a politically drafted plan.
Advancing technology, far from assisting reviewing courts, merely increases the challenge of identifying a standard. Legislatures (and litigants) are now able to draw an infinite variety of potential maps with a few keystrokes, each marginally different in its balancing of the traditional voting criteria. District courts are not authorized or equipped to draw sharp lines separating the constitutionally permissible from the impermissible among an infinite variety of computer-generated plans.
C. Repeated Litigation Over Redistricting Damages The Political Process And The Courts
Judicial micromanagement of the redistricting process destabilizes the political branches. The

13
district court’s “efficiency gap” test boils down to a proportionality requirement that would undermine single-member districts. App. 276a–79a. If legislative representation must match statewide voter preferences, courts will eventually require a proportional representation system (particularly as minor-party or special-interest plaintiffs bring claims). See Joint Public Hearing on Wisconsin Redistricting Plan Before the Wisconsin Legislature, 100th Leg., Extraordinary Sess. 61 (Wis. 2011) (statement of Professor Richard Esenberg). That system will diminish electoral accountability and increase legislative gridlock as shifting coalitions transition in and out of power. See Vieth, 541 U.S. at 357–58 (Breyer, J., dissenting).
There is no need for this. Citizens can use the political process to restrain partisan apportionment. Vieth, 541 U.S. at 362–63 (Breyer, J., dissenting); see also Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015) (upholding redistricting commission adopted through initiative process); Cal. Const. art. XXI, §§ 1–3 (establishing redistricting commission); Alaska Const. art. VI, § 8 (same); Wash. Const. art. II, § 43 (same); Idaho Code Ann. §§ 72-1501 et seq. (same). Even in States where the political branches conduct apportionment, state law and electoral accountability provide a check on partisan gerrymanders. At the federal level, Congress has the authority to police apportionment of congressional districts. U.S. Const. art. I, § 4; see also 2 U.S.C. § 2c; Apportionment Act of 1842, 5 Stat. 491; Apportionment Act of 1872, 17 Stat. 28. And there are five bills currently pending in Congress that propose to regulate apportionment. H.R. 1102, H.R. 711, H.R. 713, H.R. 151, H.R. 145, 115th Cong., 1st Sess. (2017).

14
Political apportionment challenges also impose serious burdens on judicial resources. Redistricting litigation bursts into the federal courts at the conclusion of each Census cycle. Radogno I, 2011 WL 5025251, at *1. Mid-cycle redistricting generates further litigation. LULAC, 548 U.S. at 409–10. Nor is litigation limited to only a handful of States— apportionment lawsuits are filed across the nation. Because these lawsuits are heard by three-judge district courts and require exhaustive judicial factfinding, they impose unusually high demands on judges. See, e.g., Ala. Legislative Black Caucus v. Alabama, No. 2:12-cv-691, 2017 WL 378674 (M.D. Ala. Jan. 20, 2017) (457-page slip opinion); App. 1a– 315a (116-page slip opinion).2 Apportionment challenges drag on for years, often reaching resolution only as the next Census approaches.
A fractured result, as in Bandemer and Vieth, affirming the decision below would put district courts in “litigation limbo,” condemning them to “many more years wrestling with [these cases] all without a wisp of an idea what rule of law might govern [their] disposition.” Kerr v. Hickenlooper, 759 F.3d 1186, 1195 (10th Cir. 2014) (Gorsuch, J., dissenting from
2 The Vieth plurality identified a perfect example of the futile burdens these cases place on district courts. A North Carolina district court considered 311 stipulations, 132 witness statements, and 300 exhibits, and heard two days of oral argument, before concluding that the State’s system of statewide election of superior court judges “resulted in Republican candidates experiencing a consistent and pervasive lack of success and exclusion from the electoral process as a whole” and that “these effects were likely to continue unabated into the future.” Republican Party of N.C. v. Hunt, No. 94-2410, 1996 WL 60439, at *1 (4th Cir. Feb. 12, 1996). Five days after the district court’s ruling, every Republican candidate running for superior court under that same electoral system prevailed. Vieth, 541 U.S. at 287 n.8. The circuit court remanded for reconsideration. Id.

15
denial of reh’g en banc). Recognizing that these questions are nonjusticiable would acknowledge the reality of redistricting and relieve the courts and the political branches of these harms.
D. Holding Partisan Gerrymandering Claims Nonjusticiable Reaffirms The Outcome Of Vieth And Would Not Implicate Stare Decisis Concerns
In Vieth, the entire Court declined to follow the plurality’s standard in Bandemer. A plurality of four Justices concluded “that Bandemer was wrongly decided,” Vieth, 541 U.S. at 281, while another Justice joined the judgment, noting “the shortcomings” of Bandemer and observing that the Court’s inability to describe a standard “make[s] our intervention improper,” see id., at 308, 316 (Kennedy, J., concurring in the judgment).
To the extent that Vieth arguably left open the slender possibility that partisan gerrymandering cases may be justiciable, the doctrine of stare decisis is no barrier to this Court’s holding that they are nonjusticiable. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U.S. 778, 792–93 (2009). This Court also considers whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555 U.S. 223, 233 (2009).
None of these factors counsels in favor of the justiciability of partisan gerrymandering claims, for substantially the same reasons that the Court abrogated Bandemer in Vieth. First, there is no workable test to disturb. See supra § I.B. This Court

16
has not hesitated to overturn fractured decisions that “creat[e] confusion among the lower courts,” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996), or that contain no test at all, see Vieth, 541 U.S. at 305–06 (plurality opinion) (noting “the majority’s inability to enunciate the judicially discernible and manageable standard that it thought existed”). Second, the decision in Vieth is only thirteen years old, which is younger than other decisions that this Court has overturned. See, e.g., Montejo, 556 U.S. at 793 (overturning a decision that was “only two decades old”). Third, the reliance interests are “weak because it is hard to imagine how any action taken in reliance upon [the decision] could conceivably be frustrated— except the bringing of lawsuits, which is not the sort of primary conduct that is relevant.” Vieth, 541 U.S. at 306 (plurality opinion). Fourth, the fractured nature of the decision means that there is no concern with overturning a well-reasoned opinion. Cf. Seminole Tribe, 517 U.S. at 66 (calling a decision “of questionable precedential value, largely because a majority of this Court expressly disagreed with the rationale of the plurality”). And, fifth, thirteen years of confusion in the district courts have “pointed up the precedent’s shortcomings.” Pearson, 555 U.S. at 233; see supra § I.B.
* * *
Consequently, the Court should note probable jurisdiction and provide authoritative guidance to district courts by holding that assertions of partisan gerrymandering present a nonjusticiable question.

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II. A PLAN THAT COMPLIES WITH TRADITIONAL REDISTRICTING CRITERIA IS NOT AN UNCONSTITUTIONAL POLITICAL GERRYMANDER
Another question raised by this case is whether a district can be a political gerrymander when it complies with traditional, politically neutral redistricting criteria. For example, the majority party in the legislature might draw a district that it hopes will favor its constituency in the next election, but the map also might contain compact, contiguous districts that respect political subdivisions and communities of interest. See Wis. Const. art. IV, § 4 (“such districts [are] to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable”).
Even if a claim of political gerrymandering is justiciable, this Court should note probable jurisdiction and hold that a district that complies with traditional redistricting criteria is not an unconstitutional partisan gerrymander. The district court reached the opposite conclusion, holding that an unconstitutional gerrymander occurred even though, as the dissent observed, “the plaintiffs did not argue that Act 43 created any districts with unusual shapes or lines” and did not show any “appreciable problems with contiguity, compactness, or regard for political boundaries.” App. 250a–51a. The district court’s reasoning ignores the consensus on this issue in Vieth and the logic of this Court’s other gerrymandering cases.
As the dissent noted below, all but one of the opinions in Vieth adopted the commonsense position that a district that complies with traditional redistricting criteria is not an unconstitutional political gerrymander. True, the plurality rejected the

18
workability of the subordination test as a means of deciding whether a district is a political gerrymander. See Vieth, 541 U.S. at 284–90. But the plurality would not have allowed any challenges to districts as political gerrymanders, which means that they would not strike down a district that complied with traditional redistricting criteria.
Three of the four dissenters—who agreed on little —made clear that they would uphold districts that complied with traditional redistricting criteria. Justice Stevens would have held a district unconstitutional “when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage.” Vieth, 541 U.S. at 318 (Stevens, J., dissenting); see also id. at 335 (“We have explained that ‘traditional principles[]’ . . . ‘may serve to defeat a claim that a district has been gerrymandered on racial lines.’” (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993))); id. at 339 (“[I]f no neutral criterion can be identified to justify the lines drawn . . . then no rational basis exists to save the district from an equal protection challenge.”). Justice Souter, joined by Justice Ginsburg, proposed a fivepart prima facie case that a plaintiff must make, including that “the district of his residence paid little or no heed to . . . traditional districting principles.” Id. at 347–48 (Souter, J., dissenting) (citation omitted); see also id. at 349 (requiring the plaintiffs to “establish specific correlations between the district’s deviations from traditional districting principles and the distribution of the population” and to “present the court with a hypothetical district” that “deviated less from traditional districting principles than the actual district”).

19
Justice Kennedy’s concurring opinion also leads to the conclusion that a district that complies with traditional redistricting criteria is constitutional. He stated that “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Under this test, a district that complies with traditional redistricting criteria would pass muster because it would be “[r]elated to [] legitimate legislative objective[s].” Even though the Court agreed on little in Vieth, all but one Justice explicitly stated that a district is not an unconstitutional partisan gerrymander when it complies with traditional redistricting criteria.
This rule is consistent with the caselaw on racial gerrymandering. In those cases, “a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests.” Miller v. Johnson, 515 U.S. 900, 916 (1995). Under this “subordination test,” “[w]here these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can ‘defeat a claim that a district has been gerrymandered on racial lines.’” Id. (quoting Shaw, 509 U.S. at 647); see also Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1270 (2015) (“[T]he ‘plaintiff must prove that the legislature subordinated traditional districting

20
principles . . . to racial considerations.’” (quoting Miller, 515 U.S. at 916 (emphasis omitted)) (ALBC II).
The Court has applied the subordination test in the context of racial gerrymandering for reasons that apply to all claims of gerrymandering. First, “[e]lectoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests.” Miller, 515 U.S. at 915; see also id. at 916 (referring to “the sensitive nature of redistricting”). Second, this Court has recognized a “presumption of good faith that must be accorded legislative enactments.” Id. Third, there is an “evidentiary difficulty” in establishing whether a legislature was motivated by impermissible considerations or was merely aware of them. Id.; see also Shaw, 509 U.S. at 646 (referring to the “difficulty of proof”). These three factors “requir[e] courts to exercise extraordinary caution,” Miller, 515 U.S. at 916, in all partisan gerrymandering cases that turn on proof of alleged discriminatory effect. See also Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment) (affording “judicial relief” in political gerrymandering cases only “if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” (emphasis added)); id. at 307 (noting the risk for the courts of “assuming political, not legal, responsibility for a process that often produces ill will and distrust”).
The district court in this case abandoned the restraint counseled by this Court. The majority concluded that “[i]t is entirely possible to conform to legitimate redistricting purposes but still violate the Fourteenth Amendment because the discriminatory

21
action is an operative factor in choosing the plan.” App. 120a. In reaching this conclusion, it relied primarily on inapposite dicta from Fortson v. Dorsey, 379 U.S. 433 (1965), and Gaffney v. Cummings, 412 U.S. 735 (1973), which were one-person, one-vote cases. But “an equal population goal . . . is part of the redistricting background,” not a traditional redistricting principle. ALBC II, 135 S. Ct. at 1270. As a result, these cases do not resolve whether compliance with traditional redistricting principles is sufficient to defeat a claim of political gerrymandering.
If compliance with traditional redistricting criteria is not a floor for political gerrymandering claims, then courts will be propelled deep into the political process. As noted above, passing upon the constitutionality of choices among options that all comply with traditional redistricting criteria will force courts to decide how much partisanship is too much— a subjective political judgment. And a legislature that was impermissibly partisan—however that is defined—when it drew the initial map likely will remain impermissibly partisan when a court orders it to draw a new one. If so, courts will end up drawing more plans themselves and shouldering “the difficulties . . . in drawing a map that is fair and rational.” LULAC, 548 U.S. at 415. These tasks will further burden the district courts in an area where this Court has already expressed doubts about manageability. See, e.g., Vieth, 541 U.S. at 307–08 (Kennedy, J., concurring in the judgment); see also supra § I.C.
Redistricting by a legislature has always been an unavoidably political process. Vieth, 541 U.S. at 274 (plurality opinion); see also ALBC II, 135 S. Ct. at

22
1270 (listing “political affiliation” as a traditional redistricting criterion); Vieth, 541 U.S. at 360 (Breyer, J., dissenting) (“[T]raditional or historically based boundaries are not, and should not be, ‘politics free.’”); Shaw, 509 U.S. at 646 (noting that the legislature “is aware of . . . political persuasion” when it redistricts). And what history has sanctioned, modern thought has ratified. “[D]rawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican selfgovernance.” LULAC, 548 U.S. at 416. And “purely political boundary-drawing, even where harmful to the members of one party, will often nonetheless find justification in other desirable democratic ends, such as maintaining relatively stable legislatures in which a minority party retains significant representation.” Vieth, 541 U.S. at 360 (Breyer, J., dissenting).
Because of the political nature of redistricting and general principles about the limited role of our federal judiciary, the courts cannot plausibly require the legislature to redraw every politically motivated district. “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to an unprecedented intervention in the American political process.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment); see also Miller, 515 U.S. at 916 (stating that “courts must . . . recognize . . . the intrusive potential of judicial intervention into the legislative realm” in redistricting cases). The task of the courts—if these claims are even justiciable—is to regulate political gerrymanders in which “legislative restraint was abandoned.” Vieth, 541 U.S. at 316 (Kennedy, J., concurring in the judgment). Restraint has not been abandoned when traditional redistricting principles are observed.

23

* * *

As noted above, the Court should put an end to the confusion in the district courts by noting probable jurisdiction and holding that political gerrymandering claims are nonjusticiable. Even if this Court were not satisfied with thirteen years of trial and error on that point, it should at least clarify that a district that complies with traditional redistricting criteria cannot be an unconstitutional partisan gerrymander.

CONCLUSION

For the foregoing reasons, this Court should note probable jurisdiction and hold that assertions of political gerrymandering present a nonjusticiable question.

Respectfully submitted,

RICHARD M. ESENBERG WISCONSIN INSTITUTE FOR LAW
AND LIBERTY 1139 East Knapp Street Milwaukee, WI 53202 (414) 727-9455 rick@will-law.org

DOUGLAS R. COX Counsel of Record
AMIR C. TAYRANI BRIAN M. LIPSHUTZ DAVID W. CASAZZA* GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500 dcox@gibsondunn.com

* Admitted only in New York; practicing under the supervision of principals of the firm.

Counsel for Amicus Curiae

April 24, 2017

 
 No. 16-1161
In the Supreme Court of the United States
BEVERLY R. GILL, ET AL., APPELLANTS v.
WILLIAM WHITFORD, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR THE STATES OF TEXAS, ARIZONA, ARKANSAS, INDIANA, KANSAS, LOUISIANA,
MICHIGAN, MISSOURI, NEVADA, OKLAHOMA, SOUTH CAROLINA, AND UTAH AS AMICI CURIAE
IN SUPPORT OF APPELLANTS

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant
Attorney General

SCOTT A. KELLER Solicitor General
Counsel of Record
MATTHEW H. FREDERICK Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov (512) 936-1700

[counsel for additional Amici listed at end of brief]

TABLE OF CONTENTS
Page
Table of Authorities ........................................................ IIII Interest of amici curiae........................................................ 1 Summary of argument......................................................... 2 Argument .............................................................................. 3
I. The District Court’s Opinion Warrants This Court’s Review Because It Threatens Every State’s Ability to Reapportion Legislative Seats. ....................................................................... 3 A. Partisan purpose is easy to prove when the redistricting process involves partisan actors and necessarily produces partisan effects. .............................................................. 4 B. The district court’s indeterminate standard does not draw a clear line between permissible and impermissible partisan effects. .............................................................. 8
II. The District Court’s Partisan-Gerrymandering Standard Rests on Unfounded Conceptions of Proportional Representation and Vote Dilution. ....................................................... 11 A. The district court’s expectation that single-member districts will result in proportional representation is unfounded. ..................................................... 11 B. The district court’s analysis reflects an expansion of vote-dilution claims from
(I)

II
individuals’ ability to elect to groupbased statewide political influence. ............ 14 Conclusion ........................................................................... 18

TABLE OF AUTHORITIES

Page(s)

Cases: Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).................................................................... 15 Anderson v. Celebrezze, 460 U.S. 780 (1983) ................ 17 Brown v. Thomson, 462 U.S. 835 (1983) ................. 15, 16 Chapman v. Meier, 420 U.S. 1 (1975) ............................. 2 Common Cause v. Rucho, No. 16-cv-1026, 2017 WL 876307 (M.D.N.C. March 3, 2017) (per curiam) ................................................................. 8 Davis v. Bandemer, 478 U.S. 109 (1986)............. 5, 10, 12 Gaffney v. Cummings, 412 U.S. 735 (1973) ................ 2, 4 Growe v. Emison, 507 U.S. 25 (1993) .............................. 2 Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301 (2016) .................................................. 8 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................................................... 17 LULAC v. Perry, 548 U.S. 399 (2006) ..................... 12, 14 Miller v. Johnson, 515 U.S. 900 (1995) ........................... 6 Reynolds v. Sims, 377 U.S. 533 (1964).......................... 15 Shaw v. Hunt, 517 U.S. 899 (1996) ................................ 14 Shaw v. Reno, 509 U.S. 630 (1993) .................................. 7

III
Cases – Continued:
Vieth v. Jubelirer, 541 U.S. 267 (2004)................ 7, 12, 13 Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252 (1977) .............................. 4, 7 Other Authorities
Paul A. Diller, Reorienting Home Rule: Part 1—The Urban Disadvantage in National and State Lawmaking, 77 La. L. Rev. 287 (2016) .......................................................................... 13

In the Supreme Court of the United States
No. 16-1161 BEVERLY R. GILL, ET AL., APPELLANTS
v. WILLIAM WHITFORD, ET AL., APPELLEES
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
BRIEF FOR THE STATES OF TEXAS, ARIZONA, ARKANSAS, INDIANA, KANSAS, LOUISIANA,
MICHIGAN, MISSOURI, NEVADA, OKLAHOMA, SOUTH CAROLINA, AND UTAH AS AMICI CURIAE
IN SUPPORT OF APPELLANTS
INTEREST OF AMICI CURIAE1
Amici are the States of Texas, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina, and Utah. The States have a vital interest in the rules that govern apportionment of seats for state legislative bodies and the United States House of Representatives. This Court has repeatedly held that “reapportionment is primarily the duty and responsibility of the State through its legislature or other
1 Counsel of record received timely notice of intent to file this brief, as required by Rule 37.2(a).
(1)

2
body, rather than of a federal court.” Growe v. Emison, 507 U.S. 25, 34 (1993) (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)).
And the Court has recognized that reapportionment by state legislatures is an inherently political task. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 749 (1973). It has never held that a State violates the Constitution by pursuing or achieving political goals through reapportionment.
Yet in this case, the district court held that Wisconsin violated the Constitution when it passed Act 43, the reapportionment plan for its Assembly and Senate, because that plan was purportedly a partisan gerrymander. The district court’s decision invites openly partisan policy battles in the courtroom. This will expose every State to litigation under a legal standard so indeterminate that any party that loses in the statehouse has a fighting chance of overriding that policy decision in the courthouse. The Constitution does not support, let alone compel, this result. The district court’s decision therefore warrants review by this Court.
SUMMARY OF ARGUMENT
This Court has repeatedly stated that legislative reapportionment is an inherently partisan task. And the Court has made clear that partisan-gerrymandering claims are not cognizable based on a measure of proportional representation between the votes and seats obtained by a political party.
Nevertheless, the split decision of the district court here recognized a partisan-gerrymandering claim under

3
an amorphous test that could be used to threaten countless state legislative reapportionment plans. Partisan purpose is inherent in the nature of legislative reapportionment, and the district court’s indeterminate standard does not draw a predictable line between permissible and impermissible partisan effects. Furthermore, the district court’s analysis is predicated on an expectation that single-member districts should produce proportional representation—a concept this Court has expressly rejected multiple times. And the district court’s reliance on vote-dilution cases fundamentally misunderstands the difference between those claims regarding individual rights versus the novel group-based right recognized here. The Court’s review is necessary to reject the district court’s flawed analysis before it spreads to other jurisdictions and interferes with the States’ fundamental political responsibilities.
ARGUMENT
I. The District Court’s Opinion Warrants This Court’s Review Because It Threatens Every State’s Ability to Reapportion Legislative Seats.
The district court majority held that a redistricting plan violates the First Amendment and the Equal Protection Clause when it “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” J.S. App. 109-10a. That holding will be quite disruptive in practice. First, partisan motivation will be easy to prove because, unlike race or

4
other presumptively impermissible criteria, political considerations are unavoidable in legislative reapportionment. Second, political impact is foreseeable in any apportionment plan, but there is no clear standard to distinguish permissible from impermissible partisan effects. The district court’s indeterminate standard of liability warrants review by this Court because it threatens to entangle every State in protracted, politically motivated litigation.
A. Partisan purpose is easy to prove when the redistricting process involves partisan actors and necessarily produces partisan effects.
In an effort to provide structure to its intentional-discrimination test, the majority purported to borrow the framework for judging discriminatory purpose from racial-discrimination cases, J.S. App. 117a, including the nonexhaustive list of factors identified in Arlington Heights. J.S. App. 123-24a (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977)). The problem with this, of course, is that the Court has repeatedly noted that partisan purpose is inherent in legislative reapportionment. So a finding of partisan purpose says nothing about the constitutionality of a reapportionment plan.
This Court has correctly noted that as long as redistricting is carried out by partisan legislatures, partisan intent will be easy to prove. Gaffney v. Cummings, for instance, referred to “the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.” 412 U.S. at 754. Similarly, in

5
Davis v. Bandemer, 478 U.S. 109, 129 (1986), the plurality recognized that partisan intent is inherent in legislative redistricting: “As long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.”
Because some degree of partisanship is inherent in legislative redistricting, the district court had to consider “what kind of partisan intent offends the Constitution.” J.S. App. 111a. The district court’s answer to that question sets an extremely low bar.
The hallmark of excessive partisanship, according to the district court, is “an intent to entrench a political party in power.” J.S. App. 117a. It did not define “entrenchment,” but it described the concept in terms that could apply to any effort to secure an electoral advantage. According to the district court, “excessiveness” or “extreme partisan gerrymanders” do not require any particular distribution of legislative seats. A party with a bare majority of safe seats could be sufficiently “lockedin” to impose “representational harms” on adherents of the other party. J.S. App. 116a.
The district court’s opinion illustrates how easy it will be to establish discriminatory intent. It found that “one purpose of Act 43 was to secure the Republican Party’s control of the state legislature for the decennial period.” J.S. App. 126a. One basis of this finding was the drafters’ consideration of partisan data to predict the outcome of elections. J.S. App. 126-36a. The district court found impermissible partisan purpose because “from the outset of the redistricting process, the drafters sought to understand the partisan effects of the maps they were

6
drawing.” J.S. App. 138a. It also relied on the drafters’ concern with “the durability of their plan,” that is, whether the anticipated advantage would persist over the life of the plan. J.S. App. 139a.2 Ultimately, this was enough to prove “that one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power.” J.S. App. 140a.
Under the district court’s test, any effort to secure a marginal partisan advantage may qualify as prohibited intentional discrimination. It dismissed the argument that drafters “only wanted to improve their position incrementally,” reasoning that if that had been their purpose, “they could have settled on one of the maps that provided a pickup of a smaller number of Republican seats.” J.S. App. 145a n.241. But under the majority’s reasoning, the “pickup” of a smaller number of seats would still support a finding of intent to “entrench”—it would merely be a lesser degree of entrenchment.
The district court’s standard of discriminatory purpose will effectively reverse the presumption of constitutionality afforded to legislative enactments. See, e.g., Miller v. Johnson, 515 U.S. 900, 916 (1995) (noting “the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactments”). After all, “it rarely can ‘be said that a legislature
2 This concern was proven, in part, by signs of optimism—one drafter assured the Republican caucus that “[t]he maps we pass will determine who’s here 10 years from now.” J.S. App. 136a.

7
or administrative body operating under a broad mandate made a decision motivated by a single concern.’” J.S. App. 118-19a (quoting Arlington Heights, 429 U.S. at 265). This is particularly true in redistricting—legislatures typically must consider, among other factors, “traditional districting principles such as compactness, contiguity, and respect for political subdivisions.” J.S. App. 119a (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)). And since this Court has presumed that politics will figure in that mix, the fact of a legislatively enacted plan will almost always suffice to make out a prima facie case of discriminatory intent under the district court’s test.
The States will find no comfort in “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” J.S. App. 123a (quoting Arlington Heights, 429 U.S. at 266), since the circumstantial evidence—and likely the direct evidence—will presumably abound with indicators of political motive. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 347-50 (2004) (Souter, J., dissenting) (“[U]nder a plan devised by a single major party, proving intent should not be hard, . . . politicians not being politically disinterested or characteristically naïve.”). Contrary to the district court’s suggestion, court- or commission-drawn plans will not escape liability if they have a partisan impact. The “components of the analysis” under Arlington Heights can never “prevent a finding of a constitutional violation,” J.S. App. 171a, because they are not necessary elements of proof; they are merely “subjects of proper inquiry.” 429 U.S. at 268. Indeed, a recent case before this Court proves that claims of partisan gerrymandering will not “stall,” J.S. App. 171a, merely because a court or commission drew

8
the challenged plan. See Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307 (2016) (rejecting claim that deviations from absolute population equality resulted from the redistricting commission’s “political efforts to help the Democratic Party”).
B. The district court’s indeterminate standard does not draw a clear line between permissible and impermissible partisan effects.
Just as any effort to favor one political party could support a finding of discriminatory intent, any degree of partisan advantage could lead to a finding of discriminatory effect under the district court’s standard. The district court did not adopt wholesale the plaintiffs’ proposed “efficiency gap” statistical test, instead treating it as corroborating evidence of a purported partisan gerrymander. J.S. App. 176a. But the court nevertheless created an even more open-ended standard that would result in a finding of discriminatory effect whenever a State’s redistricting plan would “place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation.” J.S. App. 109-10a. The district court’s constitutional standard merits this Court’s full review because it places every State at risk of constitutional liability, as the district court’s decision will be—and has been—relied on by other courts in evaluating partisan-gerrymandering claims. See Common Cause v. Rucho, No. 16-cv-1026, 2017 WL 876307 (M.D.N.C. March 3, 2017) (per curiam). This guarantees that every State will face protracted litigation under a test that does not impose clear standards.

9
The plaintiffs’ proposed “efficiency gap” test for partisan gerrymandering shows the extent of the threat to the States. Plaintiffs’ “efficiency gap” test attempts to measure the difference between the percentage of statewide votes for legislative seats for a political party compared to the actual percentage of seats held by that party. J.S. App. 159-61a. The plaintiffs’ expert Dr. Jackman applied this efficiency-gap test to elections in 41 States over a 43-year period, finding impermissible partisan discrimination whenever the first election produced an efficiency gap greater than 7%.3 The appellants note that this test would condemn approximately one third of all plans considered. J.S. 14-15. Indeed, considering all elections in the analysis, the plaintiffs’ test would have found an impermissible partisan effect in at least one plan in 36 States—including Alabama, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Montana, North Carolina, New Mexico, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Washington, Wisconsin, West Virginia, and Wyoming. See Jackman Rpt. at 34. Confining the analysis to elections held in
3 See Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan at 20 (July 7, 2015), ECF No. 1-3 [hereinafter “Jackman Report”]. Dr. Jackman excluded 9 States—Arizona, Idaho, Louisiana, Maryland, Nebraska, New Hampshire, New Jersey, North Dakota, and South Dakota— from his analysis because they had “exceedingly high rates of uncontested races” or because they used multi-member districts, non-partisan elections, or a run-off system. Id.

10
2012 and 2014, Dr. Jackman found an efficiency gap greater than 10% in Florida, Indiana, Kansas, Michigan, Missouri, North Carolina, New York, Ohio, Rhode Island Virginia, Wisconsin, and Wyoming. See id. at 73. In addition, Dr. Jackman found consistent partisan bias in post-2010 redistricting plans in Alaska, Colorado, Georgia, Maine, Minnesota, Oregon, Pennsylvania, and Vermont. Id.
The district court’s standard is even more openended. Eschewing the plaintiffs’ efficiency-gap metric and its 7% threshold, the district court found that Wisconsin “burden[ed] the representational rights of Democratic voters in Wisconsin by impeding their ability to translate their votes into legislative seats, not simply for one election but throughout the life of Act 43.” J.S. App. 176-77a.
The logic of the district court’s opinion would permit a finding of partisan gerrymandering based on any degree of disproportionality between statewide votes and legislative seats, provided only that the seats-to-votes gap persisted over the life of the plan. A smaller number of safer seats would arguably provide even stronger evidence of a partisan effect. A narrower majority would allow a greater margin of safety, thereby increasing the durability of the alleged gerrymander. See, e.g., Bandemer, 478 U.S. at 152 (O’Connor, J., concurring in the judgment) (“[A]n overambitious gerrymander can lead to disaster for the legislative majority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more

11
and more seats as the gerrymander becomes more ambitious.”). As long as the legislature intended to create some degree of electoral advantage—and it is difficult to imagine how this could not be proven—liability would be established. The potential for interference with State redistricting efforts merits review by this Court.
II. The District Court’s Partisan-Gerrymandering Standard Rests on Unfounded Conceptions of Proportional Representation and Vote Dilution.
A. The district court’s expectation that single-member districts will result in proportional representation is unfounded.
The majority based its partisan-gerrymandering test on the notion that the proportion of statewide votes for a major party’s candidates should match the proportion of legislative seats won in single-member legislative districts. As the district court put it, the plaintiffs’ proposed test—the efficiency gap—“measures the magnitude of a plan’s deviation from the relationship we would expect to observe between votes and seats.” J.S. App. 169a. But there is no reason to expect proportional representation in a system based on single-member districts. More importantly, there is no constitutional basis to compel the States to achieve proportional partisan representation in their legislatures.
The premise underlying the majority’s decision— “the normative judgment that a party’s seats won must be proportional to the party’s statewide vote totals,” J.S. App. 273a (Griesbach, J., dissenting)—stands at odds with the nature of single-district, winner-take-all elections. This conflict was apparent, and clearly noted, in

12
Bandemer, where the plurality explained that disproportionality “is inherent in winner-take-all, district-based elections.” 478 U.S. at 130 (plurality opinion); id at 159 (O’Connor, J., concurring) (explaining that when “voters cast votes for candidates in their districts . . . efforts to determine party voting strength presuppose a norm that does not exist—statewide elections for representatives along party lines”).
The district court failed to locate a right to proportional representation in the Constitution. That failure is significant given this Court’s prior decisions. See, e.g., Vieth, 541 U.S. at 308 (Kennedy, J., concurring) (finding “no authority” for the notion “that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth’s congressional delegation”); id. at 358 (Breyer, J., dissenting) (explaining that systems designed to produce more proportional representation simply “reflect different conclusions about the proper balance of different elements of a workable democratic government”); LULAC v. Perry, 548 U.S. 399, 419 (2006) (opinion of Kennedy, J.) (“[T]here is no constitutional requirement of proportional representation, and equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best.”). The dissent below noted correctly that “the efficiency gap—or any measure that simply compares statewide votes to seats—is little more than an enshrinement of a phantom constitutional right.” J.S. App. 235a (Griesbach, J., dissenting).
The majority’s opinion also downplays the impact of geographic clustering, where Democratic-leaning voters tend to concentrate in high-density urban areas. This

13
well-documented phenomenon exists across the country, with predictable effects on district-level elections. See, e.g., Vieth, 541 U.S. at 290 (plurality opinion) (recognizing that “political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a ‘natural’ packing effect”); Paul A. Diller, Reorienting Home Rule: Part 1—The Urban Disadvantage in National and State Lawmaking, 77 La. L. Rev. 287, 336 (2016) (“The same overlap of residential demography and political preference that skews the U.S. House in favor of Republicans operates, perforce, at the state level because a vast majority use contiguous, single-member, winner-take-all districts to elect legislators.”). The majority acknowledged, and the plaintiffs conceded, that “Wisconsin’s political geography affords Republicans a modest natural advantage in districting.” J.S. App. 200a. Indeed, the plaintiffs’ demonstration plan, which was drawn to minimize the efficiency gap, still showed an efficiency gap of 2.2% to 3.89% in favor of Republicans under their measure. J.S. App. 202a, 203a n.355.4
The majority discounted this factor on the ground that geography alone “cannot explain the burden that Act 43 imposes on Democratic voters in Wisconsin.” J.S. App. 217-18a. But other factors, such as larger numbers of uncontested elections and variations in turnout, may correlate with and magnify the effects of geographic clustering. See J.S. App. 243a, 309-11a (Griesbach, J.,
4 To reach the 2.2% efficiency gap, the plaintiffs’ expert assumed that there were no incumbents. Accounting for incumbency, the figure rose to 3.89%. J.S. App. 203a n.355.

14
dissenting). Without controlling for those factors, the district court had no basis to assume that the responsibility for Act 43’s partisan impact lay exclusively, or even primarily, with its drafters.
B. The district court’s analysis reflects an expansion of vote-dilution claims from individuals’ ability to elect to group-based statewide political influence.
The opinion below also raises a substantial question about the nature and source of vote-dilution claims. The district court majority appeared to leverage constitutional claims based on the rights of individual voters to participate in the political process—the traditional focus of vote-dilution claims—into a constitutional standard based on the right of a group to achieve a certain measure of political success. That marks a significant departure from this Court’s jurisprudence.
The district court claimed that “one-person, one-vote and vote-dilution cases provide the foundation for evaluating claims of political gerrymandering.” J.S. App. 78a. And it recognized that “[t]he gravamen of an equal protection claim is that a state has burdened artificially a voter’s ballot so that it has less weight than another person’s vote.” J.S. App. 100a. The right to cast an undiluted vote belongs to each voter as an individual. LULAC v. Perry, 548 U.S. at 437 (“[T]he right to an undiluted vote does not belong to the ‘minority as a group,’ but rather to ‘its individual members.’” (quoting Shaw v. Hunt, 517 U.S. 899, 917 (1996))); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (citing “the basic principle

15
that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups”). The district court did not explain, however, why or how the individual plaintiffs’ votes had been diluted or assigned unequal weight. It did not identify the particular Assembly districts in which they live, nor did it consider whether they were able to elect their preferred candidates of choice.
The district court looked past the typical elements of vote-dilution because it treated the plaintiffs’ claims as group-based claims, not claims based on individual rights. The concern here, it explained, “is the effect of a statewide districting map on the ability of Democrats to translate their votes into seats. The harm is the result of the entire map, not simply the configuration of a particular district.” J.S. App. 224-25a.
The district court’s willingness to recognize a groupbased right to a specific degree of political power is novel. The district court’s attempt to locate that right in the one-person, one-vote doctrine highlights the fundamental problem with its analysis: the absence of an identifiable constitutional baseline. The majority argued that its analysis of partisan effect “finds a constitutional analogue in the malapportionment context.” J.S. App. 168a n.299 (citing Brown v. Thomson, 462 U.S. 835, 842-43 (1983)). But in malapportionment cases, deviation from population equality makes out a prima facie case of invidious discrimination because the Constitution has been interpreted to require substantially equal population in order to ensure that each individual’s vote is measured with the same weight. Reynolds v. Sims, 377 U.S. 533, 579 (1964) (“[T]he overriding objective must be substantial equality of population among the various districts, so

16
that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.”). Equal population is the constitutional baseline.5 There is no equivalent constitutional baseline for partisan fairness or equal influence for political parties.
The district court attempted to sidestep this problem by invoking “the ability of voters of a certain political persuasion to form a legislative majority.” J.S. App. 106a. According to the majority below, when a group of voters “has a diminished or even no opportunity to effect a legislative majority,” each member of that group is “an unequal participant in the decisions of the body politic.” J.S. App. 107a.
But the notion that an individual voter suffers a constitutional injury because a political party cannot form a legislative majority is hardly self-evident. The district court did not explain why injury to the party necessarily inflicts an injury on the individual voter. It merely argued that the asserted injury was not a generalized grievance because the harm was “shared by Democratic voters in the State of Wisconsin.” J.S. App. 226a. But a wrong shared by the public at large does not confer concrete, individualized injury, e.g., Lujan v. Defenders of
5 The majority was wrong to assert that equal apportionment is “an outcome that the Constitution does not require in the state legislative context.” J.S. App. 168a n.299. The Constitution requires equal population, but States have some latitude to deviate from strict mathematical equality. See Brown, 462 U.S. at 842 (“Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations.”).

17
Wildlife, 504 U.S. 555, 573-74 (1992), and it does not imply that a wrong shared among any smaller subset of the public at large does create an injury sufficient for Article III standing. Cf. J.S. App. 225a (interpreting Lujan to hold that “an injury is not sufficiently particularized only if it is a wrong shared by the ‘public at large’”). In any event, if political affiliation is not an immutable characteristic—and it is not; voters may split their tickets— then “Democratic voters” could include any member of the public at large.
Nor can the individual voter’s injury be defined as a burden on political expression, at least not as that concept has been articulated in this Court’s decisions. Unlike the ballot-access restriction at issue in Anderson v. Celebrezze, 460 U.S. 780, 806 (1983), which prevented independent voters from expressing support for their preferred candidate, assignment of Democratic voters to a Republican-leaning district does not prevent any voter from expressing his or her support for a Democratic candidate or the views he espouses. The boundaries of a single-member district do not create “restrictions on the eligibility of voters and candidates.” Id. at 786 n.7.
* * *
The majority’s reasoning goes well beyond this Court’s vote-dilution jurisprudence, but its partisan-gerrymandering test will not remove partisanship from the redistricting process. Nor will it reduce partisan influence to an acceptable level, as it cannot even identify an acceptable level of partisanship. It is virtually certain,

18

however, that any judicially created standard for detecting partisan gerrymandering will make naked partisanship a prominent and powerful weapon in redistricting litigation. Given the uncertain contours of the district court’s test—not to mention the questionable status of the “rights” it protects—this case suggests strongly that any hypothetical test trying to identify impermissible partisan redistricting will only create unwarranted interference with the States’ fundamental political responsibilities.
CONCLUSION
The Court should note probable jurisdiction and reverse the decision of the district court.
Respectfully submitted.

KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant
Attorney General
APRIL 2017

SCOTT A. KELLER Solicitor General
Counsel of Record
MATTHEW H. FREDERICK Deputy Solicitor General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov (512) 936-1700

19 COUNSEL FOR ADDITIONAL AMICI

Mark Brnovich Arizona Attorney General 1275 W. Washington Phoenix, AZ 85007

Joshua D. Hawley Missouri Attorney General 207 W. High Street Jefferson City, MO 65102

Leslie Rutledge Arkansas Attorney General 323 Center St., Suite 200 Little Rock, AR 72201

Adam Paul Laxalt Nevada Attorney General 100 North Carson Street Carson City, NV 89701

Curtis T. Hill, Jr. Indiana Attorney General 200 West Washington Street Room 219 Indianapolis, IN 46204
Jeff Landry Louisiana Attorney General 1885 N. Third Street Baton Rouge, LA 70802

Mike Hunter Oklahoma Attorney General 313 NE 21st Street Oklahoma City, OK 73105
Alan Wilson South Carolina
Attorney General 1000 Assembly St., Rm. 519 Columbia, SC 29201

Derek Schmidt Kansas Attorney General 120 SW 10th Ave., 2nd Floor Topeka, KS 66612

Sean D. Reyes Utah Attorney General 350 North State St., Ste. 230 Salt Lake City, UT 84114

Bill Schuette Michigan Attorney General P.O. Box 30212 Lansing, MI 48909

 
 No. 16-1161

In the
Supreme Court of the United States
________________

BEVERLY R. GILL, et al.,
Appellants, v.

WILLIAM WHITFORD, et al., Appellees.
________________ On Appeal from the United States District Court for the Western District of Wisconsin
________________

BRIEF FOR AMICI CURIAE
WISCONSIN STATE SENATE AND WISCONSIN STATE ASSEMBLY IN SUPPORT OF APPELLANTS ________________

KEVIN ST. JOHN
BELL GIFTOS ST. JOHN LLP
5325 Wall Street Suite 2200 Madison, WI 53718

PAUL D. CLEMENT
Counsel of Record ERIN E. MURPHY
MICHAEL D. LIEBERMAN KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW
Washington, DC 20005 (202) 879-5000
paul.clement@kirkland.com

Counsel for Amici Curiae April 24, 2017

TABLE OF CONTENTS
STATEMENT OF INTEREST ................................... 1
SUMMARY OF ARGUMENT .................................... 1
REASONS FOR SUMMARILY REVERSING OR NOTING PROBABLE JURISDICTION ................. 4
I. The Decision Below Will Produce Unprecedented Federal Intervention In The State Redistricting Process ................................. 4
II. The Decision Below Rests On A Distorted View Of Electoral Politics And Representative Democracy................................ 11
A. The Constitution Does Not Guarantee Proportional Representation...................... 11
B. Voters Who Support Losing Candidates Are Not Deprived of Representation or Access to the Political Process ................... 16
C. Party Affiliation Is Not an Immutable Characteristic ............................................. 19
III. The Decision Below Fails To Adequately Account For Wisconsin’s Political Geography .. 21
CONCLUSION ......................................................... 26

ii
TABLE OF AUTHORITIES
Cases
Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015).............................................. 5
Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) ......... 6, 13, 15
Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017)............................................ 5, 9
Bush v. Vera, 517 U.S. 952 (1996)................................................ 10
City of Mobile v. Bolden, 446 U.S. 55 (1980)............................................ 17, 18
Davis v. Bandemer, 478 U.S. 109 (1986)........................................ passim
Democratic Party v. Wisconsin, 450 U.S. 107 (1981)................................................ 13
Evenwel v. Abbott, 136 S. Ct. 1120 (2016)............................................ 12
Gaffney v. Cummings, 412 U.S. 735 (1973)............................................ 4, 10
Gomillion v. Lightfoot, 364 U.S. 339 (1960).................................................. 5
Growe v. Emison, 507 U.S. 25 (1993).............................................. 4, 23
Jensen v. Wis. Elections Bd., 639 N.W.2d 537 (Wis. 2002) ........................ 4, 5, 6, 8
Perry v. Perez, 565 U.S. 388 (2012).................................................. 9

iii
Reynolds v. Sims, 377 U.S. 533 (1964).............................................. 5, 8
Shaw v. Reno, 509 U.S. 630 (1993)................................................ 16
State v. Fitzgerald, 798 N.W.2d 436 (Wis. 2011) .................................. 14
Thornburg v. Gingles, 478 U.S. 30 (1986).................................................... 5
Vieth v. Jubelirer, 541 U.S. 267 (2004)........................................ passim
Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (M.D. Pa. 2002) .................... 20
Whitcomb v. Chavis, 403 U.S. 124 (1971).......................................... 16, 17
Constitutional Provisions
Wis. Const. art. IV, §3 ................................................ 8 Wis. Const. art. IV, §4 ................................................ 5 Wis. Const. art. IV, §5 ................................................ 5 Other Authorities Jason Stein, Assembly Speaker Mike
Sheridan acknowledges dating lobbyist, Wisconsin State Journal (Feb. 2, 2010), http://bit.ly/2oEwNyK............................................ 14
Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1 (1985)...................................... 15
Nathaniel Persily, In Defense of Foxes Guarding Henhouses, 116 Harv. L. Rev. 649 (2002)............................... 8, 9

iv
Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731 (1998) ...................................... 8, 9

STATEMENT OF INTEREST1
Amici are the legislative bodies to which the Wisconsin Constitution assigns the task of drawing state and federal legislative districts. Wis. Const. art IV, §3. As the Wisconsin legislature, amici thus have an acute interest in defending the constitutionality of the districting map challenged here. The legislature also has an acute interest in ensuring that the task of redistricting remains, as the people of Wisconsin intended, with the legislature, not the judiciary. Finally, as the body responsible for representing constituents throughout the State, the legislature is uniquely well-positioned to explain the State’s history, geography, and politics, and the myriad ways in which the decision below distorts the nature of representative democracy in Wisconsin.
SUMMARY OF ARGUMENT
For decades, the decennial task of redistricting in Wisconsin has devolved into a decennial chore of litigation. In the 1980s, 1990s, and 2000s, plaintiffs from one party or another sued in federal court, and in the face of divided government and partisan gridlock, federal judges were forced to impose districting plans for use in state legislative elections. In 2011, the Wisconsin legislature finally was able to overcome those obstacles and enact a politically accountable districting plan that, after a tweak to a single line
1 Counsel for all parties have consented to this filing. No counsel for any party authored this brief in whole or in part, and no entity or person, aside from amici curiae, their members, and their counsel, made any monetary contribution toward the preparation or submission of this brief.

2
separating two assembly districts, satisfied all thenextant state and federal requirements. Once again, however, a federal court has intervened, becoming the first court in decades to purport to divine a legal basis to invalidate a districting plan as a partisan gerrymander.
That decision is not only wrong, but dangerously so, as it imposes on legislatures a constitutional requirement so amorphous as to threaten their ability to carry out their constitutionally assigned task of drawing districts. It is already hard enough to draw districts that simultaneously satisfy the competing demands of the myriad state and federal constraints on the districting process. If allowed to stand, the decision below will make it all but impossible for legislatures to perform that task without running afoul of one prohibition or another—or at least without being forced to defend against costly and timeconsuming litigation (even litigation brought, as here, years after maps were enacted). That result would serve only to increase the federal judiciary’s alreadyoutsized role in the redistricting process, a result that this Court has repeatedly discouraged and that inevitably transfers to federal judges and private litigants a power that the people assigned to elected legislators.
Making matters worse, the standard the district court applied allows plaintiffs to bring partisan gerrymandering claims on a statewide basis instead of proceeding district by district. That is no mere foot fault. That statewide approach not only contravenes this Court’s precedents, but is premised on a fundamental misunderstanding of how representative

3
democracy works in Wisconsin. By assessing the plaintiffs’ claims at the statewide level, the court created a right to proportional representation that neither the U.S. Constitution nor the Wisconsin Constitution embraces and incorrectly treated partisan preference as a determinative and immutable characteristic that has little to do with the attractiveness of candidates or the attentiveness of legislators.
Even if statewide gerrymandering claims were viable, the district court’s methodology failed to adequately account for the impact of Wisconsin’s political geography. Democratic voters in Wisconsin are concentrated in urban areas like Madison and Milwaukee, while Republican voters are dispersed more widely throughout the State. As a result, any districting map based on traditional principles like compactness and contiguity (which this map concededly was) will appear to have a pro-Republican bias under the plaintiffs’ “efficiency gap” theory. Indeed, the court-drawn plans over the past three decades produced the same type of pro-Republican “efficiency gap” as the plan challenged here. If there really is a standard by which courts can adjudicate partisan gerrymandering claims, surely it is not one that treats the natural consequences of political geography as evidence of a plan’s unconstitutionality.
The decision below is so profoundly out of step with this Court’s jurisprudence—and with decades of lower court decisions rejecting comparable claims—as to warrant summary reversal. At a minimum, the Court should note probable jurisdiction, as a decision that threatens to wreak such havoc on the ability of

4
state legislatures to fulfill their constitutional responsibility to draw districts readily presents questions sufficiently substantial to warrant this Court’s review.
REASONS FOR SUMMARILY REVERSING OR NOTING PROBABLE JURISDICTION
I. The Decision Below Will Produce Unprecedented Federal Intervention In The State Redistricting Process.
Nearly half a century ago, this Court expressed concern about standards “so difficult to satisfy” that the decennial task of redistricting would be “recurringly removed from legislative hands and performed by federal courts.” Gaffney v. Cummings, 412 U.S. 735, 749 (1973). The decision below makes that fear a reality, adding an amorphous prohibition on partisan gerrymandering to the ever-growing list of constraints. In doing so, the decision below wrests control of districting away from the state legislators to whom the state constitution assigns that task, and hands it to federal judges and opportunistic plaintiffs seeking to accomplish in court what they failed to achieve at the ballot box. This Court should not permit such an unwarranted interference in the core sovereign function of redistricting.
1. Even before the decision below, federal courts had taken up “seemingly permanent residency” in the state redistricting process. Jensen v. Wis. Elections Bd., 639 N.W.2d 537, 540 (Wis. 2002). Although the Constitution leaves States with “primary responsibility for apportionment of their federal congressional and state legislative districts,” Growe v. Emison, 507 U.S. 25, 34 (1993), this Court has

5
imposed at least five federal limitations on state redistricting.
Specifically, under this Court’s precedents interpreting the Equal Protection Clause and the Voting Rights Act (“VRA”), a state legislature must (1) ensure population equality among its districts, Reynolds v. Sims, 377 U.S. 533, 568 (1964), and must not: (2) purposefully discriminate against minority voters, Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960); (3) dilute the voting strength of sufficiently large and politically cohesive minority groups, Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); (4) cause retrogression in minority voting strength in jurisdictions covered by Section 5, Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1273 (2015); or (5) notwithstanding the VRA’s command to consider the impact of district lines on minority voters, allow racial considerations to predominate over traditional districting principles absent a compelling interest, Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 797 (2017).
State legislators not only must reconcile those not-always-harmonious federal requirements, but also must obey state redistricting law. In Wisconsin, state law requires the legislature to draw districts that are “bounded by county, precinct, town or ward lines”; are “in as compact form as practicable”; and “consist of contiguous territory.” Wis. Const. art. IV, §4. The legislature also must keep assembly districts intact when drawing senate districts, id. §5, and comply with a substantial body of case law governing the redistricting process, see generally Jensen, 639 N.W.2d at 543.

6
The overlap and interplay among and between those rules has contributed to the unfortunate reality that redistricting in Wisconsin is “almost always resolved through litigation rather than legislation.” Id. at 540. Indeed, every districting cycle since 1972 has included trips to federal court. Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 843 (E.D. Wis. 2012). In the 1980 cycle, the governor vetoed the legislature’s plan; in the 1990 cycle, another veto threat prevented the legislature from passing a plan; and in the 2000 cycle, no plan materialized because a divided legislature could not overcome partisan gridlock. JS.App.9-11. All three times, plaintiffs filed lawsuits alleging that the prior decade’s plan had become unconstitutional, and all three times, federal courts imposed plans of their own design. Id.
Then, in 2011, after three decades of litigation and court-drawn plans, a minor miracle occurred: The legislature passed a districting plan (“Act 43”) that obtained the governor’s approval and, after tweaks to two districts, survived challenges under state law, the VRA, and this Court’s racial gerrymandering precedents. That plan, moreover, scrupulously complied with traditional districting criteria and compared favorably to prior court-drawn plans in terms of compactness, municipal splits, and population deviations. JS13. Indeed, the plaintiffs in this case have not claimed that a single district failed to comport with traditional districting criteria. JS.App.235.
But not even that once-in-a-generation accomplishment was enough to keep redistricting

7
under state control. Four years and two election cycles after Act 43’s enactment, a group of plaintiffs filed partisan gerrymandering claims in federal court. After trial (and a third election under Act 43), a divided three-judge district court declared that it had divined a workable standard for partisan gerrymandering claims and, applying that standard without any advance warning, invalidated Act 43 as an unconstitutional partisan gerrymander. JS16-18.
That decision, if allowed to stand, would extinguish any last hope for state autonomy in the redistricting process. As difficult as it is for state legislatures to navigate partisan gridlock and legal roadblocks, allowing claims like plaintiffs’ to proceed (much less prevail) would make federal-court litigation unavoidable. After all, just as nature abhors a vacuum, “court action that is available tends to be sought.” Vieth v. Jubelirer, 541 U.S. 267, 300 (2004) (plurality opinion). And given the reality that redistricting is an inherently political task, “there is almost always room for an election-impeding lawsuit” alleging excessive partisan motivation for the boundaries of one district or another. Id. at 286.
Moreover, the indeterminacy of the district court’s test—and of any test attempting to measure whether an inherently partisan body is being “too partisan”— means the outcome of that litigation will inevitably be uncertain, which will incentivize resort to the courts “not just where it is necessary,” but wherever it is “in the interest of the seeking party.” Id. at 300. And such litigation always will be in the interest of whichever party finds itself out of power, as “factions that foresee ultimate defeat in the political process”

8
predictably will “obstruct redistricting in the hope of throwing the enterprise into courts where they may fare better.” Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731, 735 (1998).
2. The regular insertion of the judiciary into the state districting process not only would cause delay and bring “partisan enmity” upon the courts, Vieth, 541 U.S. at 301, but also would transfer power over redistricting from elected state legislators to unaccountable courts and litigants unhappy with electoral outcomes. That would do far more to undermine than to advance the “fair and effective representation” that redistricting is intended to promote. Reynolds, 377 U.S. at 565-66. It is no accident that the Wisconsin Constitution—like that of almost every State—assigns redistricting to the legislative branch. Wis. Const. art. IV, §3. Redistricting is not just about lines on a map; it is a substantive act of policymaking through which legislators “make the tough value-laden decisions as to how communities should be represented,” and foster “relationships between representatives and constituents that fit into larger public policy programs.” Nathaniel Persily, In Defense of Foxes Guarding Henhouses, 116 Harv. L. Rev. 649, 679 (2002).
Because redistricting affects “the political landscape for the ensuing decade and thus public policy for years beyond,” it works best when it goes through the same “give-and-take of the legislative process” as any other act of policymaking. Jensen, 639 N.W.2d at 540. Legislators know every detail of their

9
districts and have unique access to their colleagues’ collective knowledge, allowing them to undertake the “careful assessment of local conditions” necessary to ensure fair and effective representation. BethuneHill, 137 S. Ct. at 801. Federal courts, on the other hand, lack the same intimate knowledge of local conditions. Instead, courts must draw districts from a “cold record” of maps and charts, meaning courts unfortunately are far more likely than legislators to unwittingly disrupt cooperative projects or split communities of interest. See Persily, supra, at 678 n.95.
Redistricting litigation also grants private litigants (and the organizations that fund or control their conduct) outsized control over districting. Courts cannot adjudicate gerrymandering claims until someone files a lawsuit, and even then, must limit their analysis to the challenged aspects of the plan. See Perry v. Perez, 565 U.S. 388, 397 (2012). Private litigants decide which districts to challenge, which legal theories to press, and which remedies to propose. Those litigants almost by definition will be dissatisfied with the outcome of the elections that gave rise to the legislative majorities that drew the challenged maps. See Karlan, supra, at 735. Making matters worse, the procedural safeguards that apply in other types of aggregate litigation are absent from redistricting litigation: There is no opt-out procedure for citizens who prefer the enacted plan, no requirement that litigants’ objections to the plan be typical, and no mechanism to force litigants to reveal their motivations or funding sources.

10
Finally, the threat of partisan gerrymandering claims would have the perverse effect of increasing the legislature’s attention to partisan concerns. After drawing districts to comply with traditional principles, legislators would have to check their work to see whether the resulting map “favored” one party—a common natural consequence of political geography. See infra Part III; Vieth, 541 U.S. at 359 (Breyer, J., dissenting). If so, legislators would then be forced to adjust districts on explicitly partisan terms—i.e., to engage in partisan gerrymandering—to undo the plan’s naturally occurring “partisan slant.” That, of course, would just invite partisan gerrymandering claims from members of the other political party, placing state legislatures in the same damned-if-they-do-damned-if-they-don’t position they often face when trying to comply with both the VRA and this Court’s racial gerrymandering precedents— but without the overriding justification of avoiding racial discrimination. See Bush v. Vera, 517 U.S. 952, 977 (1996).
In short, if the decision below stands, the only guarantees are an increased federal role in the state redistricting process and increased uncertainty for state legislatures drawing district lines. This Court’s decision to enter “the political thicket” of redistricting to adjudicate one-person, one-vote cases and racial gerrymandering cases “does not mean that it should become bogged down in a vast, intractable apportionment slough, particularly when there is little, if anything, to be accomplished by doing so.” Gaffney, 412 U.S. at 749-50.

11
II. The Decision Below Rests On A Distorted View Of Electoral Politics And Representative Democracy.
Even assuming some partisan gerrymandering claims might be justiciable when particular districts foreclose any other rational explanation for their bizarre contours, the district court erred by allowing the plaintiffs to pursue their claim at the statewide level. As the jurisdictional statement explains, five Justices in Vieth held such statewide claims nonjusticiable. JS21-25. And for good reason: Statewide partisan gerrymandering claims are premised on a legal theory that this Court has repeatedly rejected and on factual assumptions that are inconsistent with how representative democracy works in Wisconsin and across the country.
A. The Constitution Does Not Guarantee Proportional Representation.
The district court’s decision is premised on a constitutional right that does not exist. The two measures the court considered were the “entrenchment” test and the “efficiency gap” test, both of which examine the extent to which statewide vote totals for candidates from one party translated into seats for that party in the state legislature as a whole. JS.App.145-77. In the court’s view, too large a discrepancy between statewide votes and statewide seats inflicts constitutional harm upon members of the “underrepresented” party. In effect, then, the court concluded that “there is a right to not have disproportional representation,” which “is tantamount to saying there is a right to have proportional

12
representation.” JS.App.272 (Griesbach, J, dissenting).
That approach cannot be reconciled with this Court’s precedents. Not only has a majority of the Court rejected statewide partisan gerrymandering claims, JS21-25; the Court’s cases “clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Davis v. Bandemer, 478 U.S. 109, 130 (1986) (plurality opinion).
The Constitution requires States to implement a “Republican Form of Government,” U.S. Const. art. IV, §4, but it otherwise affords States “significant leeway” in deciding how votes cast by their citizens should translate into representation in the state legislature. Evenwel v. Abbott, 136 S. Ct. 1120, 1133 (2016) (Thomas, J., concurring). States are thus equally free to adopt a district-based scheme, a proportional representation scheme, or any other apportionment method consistent with a Republican form of government. The differences between systems simply “reflect different conclusions about the proper balance of different elements of a workable democratic government.” Vieth, 541 U.S. at 358 (Breyer, J., dissenting). The Constitution takes no sides in that debate. By granting plaintiffs relief based on purported disproportionality between votes cast and statewide representation, the decision below enshrines a political theory that the Framers allowed the States to reject.

13

The difficulties with the decision below are not just theoretical. The assumptions built into the court’s analysis do not accord with the realities of representative democracy, in Wisconsin or elsewhere. First, by equating votes for individual candidates with support for a statewide political party, the court assumed that the only factor determining voting behavior is political affiliation. That “is assuredly not true” anywhere, Vieth, 541 U.S. at 288—much less in Wisconsin, the quintessential “purple state” where primaries are open and voters “regularly elect comparable numbers of Democrats and Republicans.” Baldus, 849 F. Supp. 2d at 843; see Democratic Party v. Wisconsin, 450 U.S. 107, 110-11 (1981).

Indeed, election results in Wisconsin reveal an

electorate that chooses candidates based on their

records and positions, not just their political parties.

Examples abound of state legislative candidates

vastly outperforming the Presidential candidate in

their districts. In Assembly District 96, for instance,

Republican Lee Nerison has held his seat since 2005

even though his constituents overwhelmingly

supported President Obama in 2008 and 2012.2 In

2012, for example, Nerison earned 59.5% of the two-

party vote while Mitt Romney received just 43.6% of

the Presidential two-party tally.

Likewise,

Republican Travis Tranel defeated a Democratic

incumbent in District 49 in 2010 and then held his

seat in 2012, outperforming Romney by 11 points. Not

so coincidentally, both of those legislators have

2 Election results are available at http://elections.wi.gov/ elections-voting/results.

14
crossed party lines on occasion, including by opposing the highly contentious Budget Repair Bill of 2011.3
The same dynamic is evident in the districts that have changed hands within the same districting cycle. In District 28, for instance, longtime Republican incumbent Mark Pettis was unseated by Democrat Ann Hraychuck in 2006, who herself was unseated by Republican Eric Severson in 2010. Voters in District 68 elected a Democrat in 2002, a Republican in 2004, a Democrat in 2008, and a Republican in 2010. And this phenomenon is not confined to traditional “swing” districts. The right candidate at the right time can prevail when an incumbent in even the “safest” seat adopts unpopular positions or loses the trust of his constituency. In 2010, for example, Joe Knilans defeated the embattled Speaker of the Assembly,4 who in 2006 had earned 69.3% of his district’s vote and ran unopposed in 2008.
As those results reflect, Wisconsin voters respond to the individual candidates in their districts and their positions on important issues; they do not just blindly support one party or the other. By reducing elections to an “R” or “D” on the ballot, the district court undervalued the discernment of Wisconsin voters and oversimplified the nuances of Wisconsin politics.
3 The Wisconsin Assembly’s roll call vote on the Budget Repair Bill is available at http://docs.legis.wisconsin.gov/ 2011/related/votes/assembly/av0184. For discussion of the controversy surrounding the bill, see State v. Fitzgerald, 798 N.W.2d 436, 442-443 (Wis. 2011) (Prosser, J., concurring).
4 See Jason Stein, Assembly Speaker Mike Sheridan acknowledges dating lobbyist, Wisconsin State Journal (Feb. 2, 2010), http://bit.ly/2oEwNyK.

15
Second, with its statewide focus, the district court wrongly assumed that each voter’s preference for the Democrat or Republican in her district reflects a preference for every Democrat or Republican across the State, and a desire for that party to achieve statewide gains. In reality, voters cast votes for individual candidates in individual districts, “not for a statewide slate of legislative candidates put forward by the parties.” Davis, 478 U.S. at 159 (O’Connor, J., concurring). There are “separate elections between separate candidates in separate districts, and that is all there is.” Vieth, 541 U.S. at 289 (quoting Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1, 59-60 (1985)). A voter who generally favors Republicans might vote for the Democratic candidate in her district if that candidate prioritizes issues important to her, or if she finds the Republican candidate too extreme, or for any number of other reasons. And while that voter may prefer to see the Democratic candidate prevail in her district, she may prefer the Republican candidate in other districts, and may prefer a majority-Republican legislature.
As that unremarkable example illustrates, political parties are “big tents” containing voters with widely divergent views about policy, governance, and representation. Baldus, 849 F. Supp. 2d at 851. And that does not even account for consistently independent voters, who may prioritize preserving a balance of power in the legislature above whichever candidate they find more attractive in a given election. It thus makes no sense to treat losses by a party’s statewide slate of candidates as inflicting harm on

16
every individual voter who voted for one of those candidates. An individual voter “cannot vote for such candidates,” “is not represented by them in any direct sense,” and might not support them at all. Davis, 478 U.S. at 153 (O’Connor, J., concurring).
B. Voters Who Support Losing Candidates Are Not Deprived of Representation or Access to the Political Process.
The district court’s focus on statewide election results also caused it to incorrectly presume that voters who supported losing candidates are deprived of representation in the state legislature. That premise is “antithetical to our system of representative democracy.” Shaw v. Reno, 509 U.S. 630, 648 (1993). In Wisconsin and across the country, legislators represent all of their constituents—not just the ones who voted for them. While a losing candidate’s supporters might be “without representation” by their candidate of choice, Whitcomb v. Chavis, 403 U.S. 124, 153 (1971), courts “cannot presume … that the candidate elected will entirely ignore the interests of those voters.” Davis, 478 U.S. at 132. Instead, those voters are “deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district.” Id. at 132.
Because voters are represented even if they voted for the losing candidate, this Court has rejected equal protection claims that are based merely on the fact “that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice.” Id. at 131-32. In Whitcomb, for instance, this Court

17
rejected gerrymandering claims filed by minority voters who were submerged within a multi-member district. 403 U.S. at 149-53. While the Court acknowledged that those voters had been unable to elect their candidates of choice, it rejected their claims because they failed to show that they were unable to participate in and influence the political process. Id.; see also City of Mobile v. Bolden, 446 U.S. 55, 111 n.7 (1980) (Marshall, J., dissenting) (“When all that is proved is mere lack of success at the polls, the Court will not presume that members of a political minority have suffered an impermissible dilution of political power.”).
Despite this Court’s repeated holdings that plaintiffs must show more than the failure to win elections to prevail on partisan gerrymandering claims, the district court treated election results alone as proof that Democratic voters were denied equal protection. That myopic focus not only contravenes this Court’s precedents, but also obscures how legislators serve their constituents and how constituents influence their legislators. Wisconsin voters cast their votes in private, with their choices protected by the sanctity of the ballot box. Those who voted for the losing candidate have as much access to sitting legislators as anyone else, whether they “seek help in dealing with a government agency, to express a view about pending legislation, or to request help in securing funds for repairing a local bridge or extending a state bike trail.” JS.App.289 (Griesbach, J., dissenting). The name of the majority party has no bearing on the services that legislators provide their constituents on a day-to-day basis.

18
Moreover, voters can influence the political process in myriad ways beyond voting for state legislators. If a minority party truly “entrenches” itself in a state legislature, “the majority should be able to elect officials in statewide races—particularly the Governor—who may help to undo the harm that districting has caused the majority’s party,” Vieth, 541 U.S. at 362 (Breyer, J., dissenting), whether by vetoing legislation or by wielding influence in the next round of redistricting. That built-in structural check is far preferable to an intrusive judicial check based on questionable justifications and unadministrable tests. And even apart from elections for statewide office, voters are members of countless political, social, and economic groups that can “bind together into coalitions having enhanced influence, and have the respectability necessary to affect public policy.” Bolden, 446 U.S. at 111 n.7 (Marshall, J., dissenting).
Furthermore, treating all votes cast for the losing candidate as “wasted” ignores the significant influence those votes have on legislative behavior. The premise of plaintiffs’ “efficiency gap” theory is that any vote not essential to the election result—i.e., every vote for a losing candidate and any vote for the winning candidate beyond the 50 percent threshold—is a “wasted” vote. JS14. But these so-called “wasted votes” often are determinative of how legislators govern. Votes for the losing candidate in a close race can force the winning candidate to “adopt more moderate, centrist positions” and to be more responsive to independent and swing voters. JS.App.287. Similarly, “wasted” votes for the winning candidate in a landslide allow that candidate to move further from the center, as he will likely be more

19
concerned about a primary challenge from within the party than a threat from the other party. Id. None of these votes is truly “wasted,” and the district court’s failure to account for that reality undermines both its methodology and conclusions.
C. Party Affiliation Is Not an Immutable Characteristic.
Finally, by concluding from the statewide results of two elections that Act 43 will impede the ability of Democratic voters to translate their votes into legislative seats throughout the entire decade, the district court failed to recognize that “voters can—and often do—move from one party to the other.” Davis, 478 U.S. at 156 (O’Connor, J., concurring). Each election cycle, “the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change—everything changes.” Vieth, 541 U.S. at 289. In Wisconsin especially, winning elections requires support from independent voters and from members of the other party, and yesterday’s votes do not guarantee tomorrow’s victories.
Election results in Wisconsin over the past two decades prove the point, as the state legislature has experienced significant intra-decade volatility in partisan balance. After the first election under the districting plan imposed by a federal court in 2002, Republicans held majorities in both chambers of the state legislature. After two more elections—and with no intervening changes in district lines—Republicans had lost control of both chambers, losing three senate seats and 12 assembly seats. Similarly, after the first election under the plan at issue here, Republicans held

20
18 senate seats and 60 assembly seats. Since then, Republicans have added two senate seats and four assembly seats, again without any change in district lines.
The same shifts are evident at the county level. In 2008, President Obama carried 59 of Wisconsin’s 72 counties. In 2016, President Trump carried 60 of Wisconsin’s 72 counties—picking up 47 counties that Senator McCain had lost eight years earlier. Thus, in the span of eight years—less than the lifespan of a decennial districting map—nearly two-thirds of Wisconsin’s counties flipped their party preference. Voters’ party affiliation is simply not set in stone, and seats held by one party can (and do) change hands when effective candidates run effective campaigns.
That lesson applies beyond the borders of Wisconsin, including to the districts this Court considered in Vieth. The plaintiffs in Vieth alleged that Pennsylvania’s congressional plan was “rigged to guarantee that thirteen of Pennsylvania’s nineteen congressional representatives will be Republican.” Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 546 (M.D. Pa. 2002). But in elections held just two years after this Court found those claims nonjusticiable, a majority of Pennsylvania’s congressional seats were held by Democrats, with Republicans retaining just eight of the 13 supposedly guaranteed seats. JS.App.243. That result mirrored one that this Court discussed in Vieth: In elections held just five days after a district court found that North Carolina’s system for electing judges unconstitutionally disadvantaged Republican candidates, every single

21
Republican candidate running for superior court judge was victorious. Vieth, 541 U.S. at 287 n.8.
Under the district court’s approach, statewide partisan gerrymandering claims would require courts to focus on election results, including by predicting the results of future elections. But without any knowledge about the candidates who will run or the nationwide trends that will prevail, courts adjudicating such claims will be forced to view politics through a purely partisan lens, attributing electoral success solely to party affiliation. It is little surprise that experience has proven such predictions unreliable, as federal judges are ill-suited to the difficult task of political prognostication, and viewing future elections through a lens focused only on parties obscures the more complicated realities of representative democracy.
III. The Decision Below Fails To Adequately Account For Wisconsin’s Political Geography.
The district court’s analysis also failed to adequately account for the unavoidable effects of Wisconsin’s political geography. The “efficiency gap” measurement, which the court treated as “corroborative evidence” of partisan gerrymandering, is calculated by taking the difference between the “wasted” votes cast for each party statewide, and then dividing that figure by the total number of votes cast in the election. JS.App.160-61, 176. The party whose voters cast the fewest “wasted” votes is said to have translated votes into legislative seats more “efficiently” than the other party. JS.App.161. According to the plaintiffs, an efficiency gap of 7% or

22
more renders a plan presumptively unconstitutional. JS.App.33-34.
Treating all votes for losing candidates and excess votes for winning candidates as “wasted” not only misunderstands how voting affects legislative behavior, see supra Part II; it also sets up the Wisconsin legislature for failure because of how voters are dispersed throughout the State. While “Democratic voters are uniquely packed in urban centers like Milwaukee and Madison,” JS.App.201, Republicans are more evenly dispersed. Republicanleaning election wards thus tend to be more politically diverse than Democratic-leaning ones. Indeed, while “there are a substantial number of wards that are over eighty percent Democratic,” there are “virtually no wards that are similarly Republican.” JS.App.200.
Because of those geographic realities, elections in Democratic-leaning districts are more likely to be landslides, and elections in Republican-leaning districts are more likely to be close calls. And not so coincidentally, those two outcomes are precisely the types that result in the most “wasted” votes for Democratic candidates under the plaintiffs’ “efficiency gap” theory. When a party wins a seat by a large margin, all the votes for the candidate who would have won with thousands fewer are marked as “wasted,” and when a party loses a seat by a small margin, the thousands of votes cast for the candidate who came up short are likewise considered “wasted.” As a result, it is nearly impossible to draw districting maps in Wisconsin that comply with traditional districting principles (as required by the state constitution) but

23
do not result in an “efficiency gap” favoring Republicans.
Indeed, the court-drawn plans Wisconsin used in the past three decades all were intended to be politically neutral, yet all resulted in efficiency gaps favoring Republicans. JS.App.308-09. Most recently, the judge-drawn plan in effect from 2000 to 2010 favored Republicans with an average efficiency gap of 7.6%. JS.App.245. Thus, under the plaintiffs’ own test, that court-drawn plan was a presumptively unconstitutional partisan gerrymander. The district court attempted to brush that problem aside by noting that court-drawn plans would survive constitutional challenges because they are not drawn with partisan “intent,” JS.App.171-72, but that proposed solution turns a truism—that partisan bodies are motivated by political considerations when redistricting, see Vieth, 541 U.S. at 285—into an element of a constitutional violation. The fact that legislatures are inherently political bodies is no reason to give federal courts more leeway than state legislatures in drawing districts, at least not if states are to retain “primary responsibility for apportionment of their … state legislative districts.” Growe, 507 U.S. at 34 (1993).
Moreover, the plaintiffs’ demonstration plan in this case—which their expert tried to design with “an efficiency gap as low to zero as he could get it”—still resulted in a pro-Republican efficiency gap of 2.2%, which increases to 3.89% when adjusted for incumbency effects. JS.App.202-03 & n.355. In other words, the plaintiffs’ own expert—operating without the time pressures, partisan battles, or incumbency concerns that typically constrain the redistricting

24
process—was unable to design a districting plan that did not result in what the efficiency gap theory would label a “pro-Republican bias.” JS.App.202.
While the district court acknowledged that Wisconsin’s political geography inherently favors Republicans under an “efficiency gap” analysis, it did so only when discussing whether the legislature had a permissible “justification” for its purported overreliance on politics—i.e., after it already had concluded that Act 43 burdened the representational rights of Democratic voters in Wisconsin. See JS.App.176-77. To support that conclusion, the district court highlighted the efficiency gaps of the 2012 and 2014 elections, which were 13% and 10%, respectively. But given the impossibility of creating a districting plan in Wisconsin with an efficiency gap of 0%, the court should have—at a minimum—adjusted those 13% and 10% figures to reflect the natural political geography of the State, which itself was responsible for a 7.6% efficiency gap between 2000 and 2010.
By instead measuring from a baseline of 0%, the court skewed the analysis in a way that inherently disadvantages Republicans. Because even neutral plans produce a pro-Republican efficiency gap above the 7% threshold, passing the efficiency gap test would require Republican legislators to engage in “heroic levels of nonpartisanship” and to draw district lines that reduce the naturally occurring Republican advantage. JS.App.245-46 (Griesbach, J., dissenting). Yet if Democrats controlled the state legislature, they could draw the most pro-Democratic plan possible— e.g., the demonstration plan the plaintiffs’ expert

25
submitted in this case—without running afoul of the “efficiency gap” theory. If there really is a workable standard for partisan gerrymandering claims, surely it is not one that would allow only one political party to engage in the “lawful and common practice” of drawing district lines to secure party advantage. Vieth, 541 U.S. at 286. Indeed, the minimum threshold for any viable test for identifying partisan gerrymandering is that it should be equally opposed by partisan legislative majorities of both parties and equally welcomed by California Republicans and Utah Democrats. The fact that the district court had to resort to a theory with a built-in partisan bias is a sure sign that if a justiciable test for partisan gerrymandering is out there, it is not that one.

26

CONCLUSION
For the foregoing reasons, this Court should summarily reverse or note probable jurisdiction.
Respectfully submitted,

KEVIN ST. JOHN BELL GIFTOS
ST. JOHN LLP 5325 Wall Street
Suite 2200 Madison, WI 53718

PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY MICHAEL D. LIEBERMAN KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000 paul.clement@kirkland.com

Counsel for Amici Curiae April 24, 2017

 
 No. 16-1161
IN THE
Supreme Court of the United States
_________
BEVERLY R. GILL, ET AL., Appellants, v.
WILLIAM WHITFORD, ET AL., Appellees. _________
On Appeal from the United States District Court for the Western District of Wisconsin
_________
BRIEF OF AMICI CURIAE JUDICIAL WATCH, INC. AND ALLIED EDUCATIONAL FOUNDATION IN SUPPORT OF APPELLANTS
_________
Robert D. Popper Counsel of Record
Chris Fedeli Lauren M. Burke Eric W. Lee JUDICIAL WATCH, INC. 425 Third Street SW Washington, DC 20024 (202) 646-5172 rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: April 24, 2017
LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ii
INTERESTS OF THE AMICI CURIAE .....................1
SUMMARY OF ARGUMENT.....................................3
ARGUMENT ...............................................................4
I. The “S” Curve on Which Efficiency Gap Theory Crucially Depends Varies So Much in Practice That It Has Little Value as a Measuring Tool...............................6
II. The Efficiency Gap Is Generally a Poor Tool for Identifying Partisan Gerrymandering. ............................................12
CONCLUSION ..........................................................15

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Davis v. Bandemer, 478 U.S. 109 (1986)..............4, 14

Parrott v. Lamone, 2016 U.S. Dist. LEXIS 112736 (D. Md. Aug. 24, 2016), appeal dismissed, 137 S. Ct. 654 (2017) ..............2

Vieth v. Jubelirer, 541 U.S. 267 (2004) ......................4

Other Authorities

Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard against Partisan Gerrymandering, 9 YALE L. & POL’Y REV. 301 (1991) ...............6, 7, 9

Edward R. Tufte, The Relationship between Seats and Votes in Two-Party Systems, 67 AM. POL. SCI. REV. 540 (1973)................7, 9, 10

Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 AM. POL. SCI. REV. 1251 (1987)................7, 8, 9

Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831 (2015) ......................5

iii
Philip A. Schrodt, A Statistical Study of the Cube Law in Five Electoral Systems, 7 POL. METHODOLOGY 31 (1981) ...........................9
Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CAL. L. REV. 273 (2011)............................ 13-14
Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan, Whitford v. Nichol, No. 15-cv-421-bbc (W.D. Wis. Jan. 25, 2016), ECF No. 1-3...............................................8, 10, 11

1
INTERESTS OF THE AMICI CURIAE1
Judicial Watch, Inc. (“Judicial Watch”) is a nonpartisan, nonprofit § 501(c)(3) educational foundation that seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law. Judicial Watch regularly files amicus curiae briefs as a means to advance its public interest mission and has appeared as amicus curiae in this Court on a number of occasions.
The Allied Educational Foundation (“AEF”) is a 501(c)(3) nonprofit charitable and educational foundation based in Englewood, New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study. AEF regularly files amicus curiae briefs as a means to advance its purpose and has appeared as an amicus curiae in this Court on a number of occasions.
In this case, a divided panel of the U.S. District Court for the Western District of Wisconsin found an unconstitutional partisan gerrymander, relying in part on what amici believe to be a fatally flawed theory about how to identify such gerrymanders. If summarily affirmed, the decision will have adverse consequences for state legislative redistricting
1 Amici state that no counsel for a party to this case authored this brief in whole or in part; and no person or entity, other than amici and their counsel, made a monetary contribution intended to fund the preparation and submission of this brief. Amici sought and obtained the consent of the parties to the filing of this amicus brief ten days prior to its filing.

2
efforts. As explained herein, a central component of Appellees’ “efficiency gap” analysis is indeterminate, and the use of this approach would lead courts to invalidate redistricting plans where no undue partisan advantage is apparent. Further, Appellees’ approach is a poor indicator of partisan gerrymandering. Properly understood, it is simply a mechanism for guaranteeing proportional partisan results. At the same time, Appellees’ standard ignores violations of traditional districting criteria like compactness, contiguity, and respect for established political boundaries, which are the true hallmarks of partisan gerrymandering.
Amici are experts in the important political and constitutional questions concerning partisan gerrymandering that are raised by the District Court’s decision. Amici believe, moreover, that partisan gerrymandering gives rise to a justiciable, constitutional claim, and they have argued for their own standard based on violations of traditional districting criteria. See Parrott v. Lamone, 2016 U.S. Dist. LEXIS 112736 (D. Md. Aug. 24, 2016), appeal dismissed, 137 S. Ct. 654 (2017).
Appellees, however, are using the wrong theory and are measuring the wrong thing. Their proposed standard would exacerbate rather than resolve the difficult issues posed by partisan gerrymandering.

3
SUMMARY OF ARGUMENT
Appellees argued in the District Court that an “efficiency gap” analysis based on the concept of “wasted” votes was the proper method to identify unconstitutional partisan gerrymandering. While not adopting all of Appellees’ analysis on this point, the District Court’s majority accepted it as “evidence” of partisan gerrymandering. Appellees, no doubt, will raise the same analysis in their response to Appellants’ Jurisdictional Statement. Accordingly, in order to best assist the Court in considering this appeal, amici will address the single issue of the usefulness of Appellees’ “efficiency gap” standard in identifying partisan gerrymanders.
Appellees’ approach depends on one’s ability to determine the rate at which votes would be translated into legislative seats in a fair (ungerrymandered) world. The “efficiency gap” is then computed by comparing the actual rate of “wasted” votes to such a hypothetical ideal. If the rate of translation is not known, or if it may not accurately and particularly be determined, Appellees’ theory is simply unworkable.
The mathematical tool for predicting the fair translation of votes to seats in single-member districts is the “S” curve, which is derived in turn from a formula known as the “cube law of politics.” But a critical value in this formula – the exponent from which it derives its name – is determined empirically, and real-world estimates of that value from particular electoral systems and in particular

4
elections vary a great deal. Indeed, the graphs accompanying the complaint in this action contain anomalies which suggest that Appellees do not know the correct value of that exponent. Because Appellees cannot accurately determine the shape of their “S” curve, they cannot compare it to any actual rate of “wasted” votes or hope to use it to identify partisan gerrymanders.
More generally, the “efficiency gap” approach is flawed because it looks at the wrong indicators of partisan gerrymandering and ignores the right ones. Its use would import a new proportionality requirement into the constitutional law of redistricting. It gives undue weight to the outcomes of close elections, which may have nothing to do with gerrymandering. Meanwhile, it fails to see the violations of traditional districting criteria that have always been recognized as the distinctive marks of partisan gerrymandering.
ARGUMENT
In Davis v. Bandemer, 478 U.S. 109 (1986), the Court first held that a claim that a political gerrymander violated the Constitution was, in principle, justiciable. In the three decades following that decision, however, no majority of the Court has ever agreed upon the proper standard for identifying and adjudicating such a claim. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion) (“no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged”).

5
In their arguments before the District Court, Appellees claimed to have found the elusive standard that would allow courts to adjudicate claims of partisan gerrymandering: the “efficiency gap.” This standard is based on the concept of “wasted votes,” which are defined as all votes cast either (1) for a losing candidate, or (2) for a winning candidate who already had the bare majority of votes necessary to win. The efficiency gap is simply a comparison between parties’ wasted votes. Specifically, it is “the difference between the parties’ respective wasted votes, divided by the total number of votes cast in the election.”2 It is postulated that an efficiency gap favoring one party indicates partisan gerrymandering.3
The majority opinion of the District stated that it was not adopting Appellees’ theory as a sufficient test for partisan gerrymandering, asserting that “we have not determined that a particular measure of EG [efficiency gap] establishes presumptive unconstitutionality.” App. 176a. The District Court held nonetheless “that, on the facts before us, the EG is corroborative evidence of an aggressive partisan gerrymander.” Id. In any case, regardless of the District Court’s disclaimer, Appellees are likely to reargue their theory of the efficiency gap in their response to Appellants’ Jurisdictional Statement.
2 Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 851 (2015).
3 Id. at 852 (“we believe the gap is the essence of what critics have in mind when they refer to partisan gerrymandering.”).

6
Accordingly, the focus of this amicus brief will be to show that the efficiency gap is not reliable either as a test for partisan gerrymandering or as “corroborative evidence” that it has occurred.
I. The “S” Curve on Which Efficiency Gap Theory Crucially Depends Varies So Much in Practice That It Has Little Value as a Measuring Tool.
Anyone attempting to compare the wasted votes of two political parties in order to determine the efficiency gap immediately has to address a difficult question: How much of the observed gap between the wasted votes of the majority and the minority parties is to be expected in a single-member district system like ours, and how much is due to partisan self-dealing?
After all, it is not the case that any deviation from the strict proportional representation of voters by party is suspicious. For example, it is not ordinarily expected that a party commanding 55% of the votes will obtain 55% of the available legislative seats, or that a party garnering 70% of the votes will earn 70% of the seats, and so on. Rather, it has long been known that the single-member district system used in the United States confers a “victory bonus” on majority parties, which bonus increases as the size of the majority increases.4 To be clear, this
4 See Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard against Partisan Gerrymandering, 9 YALE L. & POL’Y REV. 301, 312 (1991) (“As has long been recognized,” a single-member district

7
bonus is not attributable to partisan manipulation, but is an observed, structural feature of our electoral system. Thus, it is important to find a way to quantify the expected victory bonus, so as to isolate it from other, partisan considerations.5
Theoretical models attempting to quantify this natural bonus rely on a “curve which correlates the pro-majority bias to the size of the majority.”6 The formula for this curve operates by raising the ratio of partisan votes to a particular exponent, in order to calculate a projected ratio of legislative victories. Because the exponent most often used is three, the formula has been dubbed the “cube law of politics.”7 This formula produces an “S”-shaped curve showing the expected correlation between any percentage of votes cast for a party in a general election, and the related percentage of seats it should expect to obtain in a legislative body.8
system “inflates the majority party’s influence in the legislature beyond what its popular support warrants,” in a way that varies based on “the size of its margin of victory.”).
5 See Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 AM. POL. SCI. REV. 1251, 1266 (1987) (noting that the fact that a party received “55% of the votes and 75% of the seats” may indicate either “severe partisan bias or a fair system with majoritarian representation”).
6 Polsby & Popper, supra note 4, at 312 n. 52.
7 Id.
8 See, e.g., Edward R. Tufte, The Relationship between Seats and Votes in Two-Party Systems, 67 AM. POL. SCI. REV. 540, 544-45 (1973) (deriving an “S” curve); App. 42a n. 111 (“the ‘S’

8
In the District Court in this case, Appellees’ experts relied on just such an “S” curve to try to distinguish partisan self-dealing presumably associated with gerrymandering from the ordinary victory bonus naturally achieved by electoral majorities in single-member districts. An expert report specifically addressing this issue was filed as an exhibit to the initial complaint. See Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan (“Jackman’s Report”), Whitford v. Nichol, No. 15-cv-421-bbc (W.D. Wis. Jan. 25, 2016),9 ECF No. 1-3 at 9 n. 1 (applying standard formula with three as the exponent) and 10 (graph of the resulting “S” curve).
As Appellees’ report necessarily admits, the use of an exponent of three is not theoretically required. It is instead an approximation of available empirical data. Jackman’s Report at 9 n. 1 (the “Cube Law” is “an approximation for the lack of proportionality we observe in single-member district systems, though hardly a ‘law.’”); see King & Browning, supra note 5, at 1258 and passim (at best the cube law is a probabilistic, empirical finding, not a deterministic law). But this very fact – namely, that the cube law and the particular “S” curve derived from it are empirical rather than a priori conclusions – suggests why they are the wrong tools to accomplish the wide-
curves give a visual depiction of how each party’s vote share . . . relates to the number of Assembly seats that party likely will secure”).
9 Available online at goo.gl/IjLcvx.

9
ranging redistricting revolution Appellees hope to achieve.
To begin with, the correct value of the crucial exponent is subject to considerable empirical doubt, both generally and in particular circumstances. See Polsby & Popper, supra note 4, at 312 n. 52 (“actual electoral systems vary widely, and index results ranging from 0.71 to 4.4 have been obtained”); King & Browning, supra note 5, at 1260 (“a number of studies have shown that [the exponent] is not equal to 3,” although “most find that [it] falls between 2 and 4”); Philip A. Schrodt, A Statistical Study of the Cube Law in Five Electoral Systems, 7 POL. METHODOLOGY 31, 33 (1981) (“even a cursory examination of election statistics shows that [the cube law] does not hold perfectly. . . . Even in Great Britain, where the cube law originated, [the exponent] can vary by as much as -.637 (1951) to 4.233 (1955) between a single pair of consecutive elections.”); Tufte, supra note 8, at 544-45 (disputing empirical basis of cube law); id. at 546 (denying that cube law applies to certain electoral systems and maintaining that “[i]f one wants . . . a very crude rule of thumb summarizing the history of votes-seats relationship in two-party systems, then the 2.5 rule is preferable to the cube law.”). Even a slight change in the key exponent would alter the entire “S” curve, and the range of differences observed by the above authors is significant. Furthermore, even if one were to agree with those authors who maintain that the exponent has “an average of about 3” (King & Browning, supra note 5, at 1260), it would remain just that – an average, an approximation across

10
electoral systems and across time. But particular cases are not decided “on average” or “approximately.”10
Appellees’ own expert provided a revealing look at the messy reality of American elections, which cannot accurately be described by a single exponent or curve. Mr. Jackman plotted the seat and vote shares of 786 state legislative elections from 1972 to 2014 in 41 states. Jackman’s Report at 33. The resulting graph shows a rough, slanted cloud of data points both above and below Appellees’ line of perfect efficiency. Id.
Of particular interest are the data points on that graph indicating that a party that garnered a clear majority of votes actually obtained fewer seats than the cube law’s “S” curve would have predicted. (If the graph were a clock, this would include all of the data points between about 1:30 p.m. and 3:00 p.m.) The very existence of these cases poses a challenge to Appellees’ basic theory. According to Mr. Jackman’s report, the parties who won these
10 It is worth noting as well that Appellees do not even rely on the cube law’s “S” curve itself. Rather, they make a further approximation of that curve, in which “for every one percentage point gain in vote share, seat share should go up by two percentage points.” Jackman’s Report at 18 (describing orange line). By this means, Appellees pile one approximation on top of another and further diminish any empirical validity their project might have. Note, too, that this two-percent estimate is itself subject to empirical dispute. Compare Tufte, supra note 8, at 546 (“The rate of translation of votes into seats differs greatly across political systems, ranging between gains of 1.3 to 3.7 per cent in seats for each 1.0 per cent gain in votes.”).

11
elections obtained no victory bonus at all. Indeed, they appear to have suffered a “victory penalty.” The graph shows that some of these victorious parties attracted almost 70% of the votes cast – an epic landslide by American standards. The fact that they carried a lower percentage of districts than expected in a single-member district system suggests that deficits in the efficiency gap (or being on the wrong side of the “S” curve) are not distinctive hallmarks of majoritarian, partisan gerrymandering. In the alternative, it suggests that Appellees have put their “S” curve in the wrong place.
The uncertainty regarding the proper location of the “S” curve is an insurmountable problem for Appellees. They seek nothing less than a constitutional revolution, in which state legislative enactments would be overturned as partisan gerrymanders if it were found that a majority party wasted fewer votes, and a minority party wasted more votes, “than expected” given a particular winning margin for the majority. How many wasted votes were “expected” for each party thus becomes a critical determination, and it primarily is based on Appellees’ calculation of the “S” curve. As Mr. Jackman explains, “[t]he efficiency gap can be computed by noting how far the observed S [the number of seats] lies above or below the orange line in Figure 4.” Jackman’s Report at 19. Thus, for Appellees’ standard to work, the “orange line” must be in the right place. If it is not, Appellees risk asking courts to strike down redistricting laws even though the majority party did not have more seats “than expected” given the extent of its victory

12
margin. Stated differently, if Appellees cannot accurately identify when an “undue” partisan advantage has been obtained, they cannot accurately identify partisan gerrymanders.
Before courts accept Appellees’ implicit invitation to become more heavily involved in political redistricting decisions, and to review those decisions based on the efficiency gap, they must be certain that Appellees have a way to tell the difference between “expected” and “undue” partisan advantage. The efficiency gap, the cube law, and the associated “S” curve do not provide any reliable means for doing so.
II. The Efficiency Gap Is Generally a Poor Tool for Identifying Partisan Gerrymandering.
As explained above, the efficiency gap standard is impaired by a fundamental and unsolved data problem that renders it unworkable. In addition, the standard is wrong in principle. It emphasizes attributes of electoral systems that do not help to identify partisan gerrymanders, while it ignores features that are characteristic of such gerrymanders.
As the dissent rightly noted, Appellees’ proposed standard would enshrine in the Constitution a right to proportional representation. App. at 269a. Admittedly, the efficiency gap standard would not require or favor strict, 1-to-1 proportional representation, where a particular percentage of

13
votes would translate into an equal percentage of legislative seats. Rather, the efficiency gap standard would limit deviations from whatever level of representation was required by the “S” curve. This is proportional representation as well, because each particular level of voter support is invariably associated with a particular level of legislative control.
But this kind of proportional representation has nothing to do with preventing gerrymandering. Deviations from proportional representation, however defined, may occur for any number of reasons other than gerrymandering, including the political views or missteps or personal qualities of the candidates of one of the parties. The absence of proportional representation does not uniquely identify gerrymanders. In any event, proportional representation is not required by the Constitution.
The dissent also was right to note that the practical effect of an approach based on the efficiency gap is to unduly penalize losses in close elections, because that is where the most votes are wasted. App. at 293a (“winning close elections is the surest way to make sure the other side racks up lots of wasted votes”). But this fact “does not tell us anything about gerrymandering, however, even if partisan intent is present; it simply means one side won significantly more close elections than the other.” Id. Nor is any change in the rate at which we see close elections due to gerrymandering. See Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in

14
America, 99 CAL. L. REV. 273, 312 (2011) (“the evidence that gerrymandering is a major cause of the decline in competitive elections is not powerful. Most of the increase in safe seats over the last thirty years, and the decline in marginal seats . . . has occurred in the years between redistricting cycles”).
Finally, Appellees’ approach to identifying gerrymandering ignores the factors that commentators and the Court usually have viewed as typical signs of the practice. To gerrymander properly, voters must be placed within or without districts on the basis of their partisan affiliations. Because voters typically do not choose their place of residence to favor politicians, electoral districts must be stretched and shrunk so as to include the partisan mix of voters that best suits the scheming mapmaker. The inevitable result is noncompact, occasionally noncontiguous district boundaries that needlessly cross existing political boundaries. These are the true hallmarks of partisan gerrymanders. See Bandemer, 478 U.S. at 173 (Powell, J., concurring in part and dissenting in part) (of the factors that “should guide both legislators who redistrict and judges who test redistricting plans against constitutional challenges,” the “most important . . . are the shapes of voting districts and adherence to established political subdivision boundaries”) (citations omitted).

15
CONCLUSION
For the foregoing reasons, amici Judicial Watch, Inc. and Allied Educational Foundation respectfully request that the Court note probable jurisdiction or, in the alternative, summarily reverse the lower court’s decision.
Respectfully submitted,
Robert D. Popper Counsel of Record
Chris Fedeli Lauren M. Burke Eric W. Lee JUDICIAL WATCH, INC. 425 Third Street SW Washington, DC 20024 (202) 646-5172 rpopper@judicialwatch.org
Counsel for Amici Curiae
April 24, 2017

 
 No. 16-1161
In The
Supreme Court of the United States

BEVERLY R. GILL, ET AL.,
Appellants,
V. WILLIAM WHITFORD, ET AL.,
Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICI CURIAE THE REPUBLICAN NATIONAL COMMITTEE AND THE NATIONAL REPUBLICAN CONGRESSIONAL
COMMITTEE IN SUPPORT OF APPELLANTS

Jason Torchinsky Counsel of Record J. Michael Bayes Shawn Toomey Sheehy Philip M. Gordon Holtzman Vogel
Josefiak Torchinsky PLLC 45 North Hill Drive Suite 100 Warrenton, VA 20186 (540) 341-8808 (540) 341-8809 Jtorchinsky@hvjt.law

P. Christopher Winkelman National Republican Congressional Committee 320 First Street, SE Washington, DC 20003 202-479-7000 202-484-2543 John R. Phillippe Jr. Dalton L. Oldham Republican National
Committee 310 First Street, SE Washington, DC 20003 202-863-8500 202-863-8654

Counsel for Amici Curiae

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................iii
STATEMENT OF INTEREST OF THE AMICI CURIAE.................................................. 1
SUMMARY OF THE ARGUMENT............................ 2
ARGUMENT ............................................................... 3
I. The “Efficiency Gap” Cannot Be A Component Of A Judicially Manageable Standard Because It Measures Political Geography. .................... 3
A. Social Science Research Confirms That The Geographic Distribution Of Republican And Democratic Voters Results In More Republican Seats Irrespective Of Partisan Gerrymandering. ................................. 8
B. Appellees’ “Efficiency Gap” Is Biased Towards Democrats And Is Likely To Cause Constitutional Conflict With Section Two Of The Voting Rights Act. ......................................... 15
C. This Case Demonstrates Why Appellees’ “Efficiency Gap” Is Deficient. ............................................ 22

ii
II. The “Efficiency Gap” Requires Bizarrely Shaped Districts Of The Kind That This Court Previously Rejected. ..................................................... 25
III. Appellees Proposed Standard Is Based On The Flawed Assumption That The Constitution Requires Proportional Representation Of Political Parties In The Legislature Based On Statewide Vote Totals. .............. 27
CONCLUSION .......................................................... 30

iii
TABLE OF AUTHORITIES
CASES
Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017) ............................................... 25
Colegrove v. Green, 328 U.S. 549 (1946)................... 21
Colleton Cnty. Council v. McConnell, 201 F. Supp. 2d 618 (D.S.C. 2002) .............................. 15
Common Cause v. Rucho, Nos. 16-1026, 161164, 2017 U.S. Dist. LEXIS 30242 (M.D.N.C. March 3, 2017) ................................ 16
Davis v. Bandemer, 478 U.S. 109 (1986) .......... passim
Easley v. Cromartie, 532 U.S. 234 (2001)................. 15
Gaffney v. Cummings, 412 U.S. 735 (1973) ............. 15
Garza v. Los Angeles, 918 F.2d 763 (9th Cir. 1990).................................................................. 15
Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) (three-judge court) sum. aff’d., Pope v. Blue, 506 U.S. 801 (1992) .................... 26
Shaw v. Reno, 509 U.S. 630 (1993)........................... 26
United States v. Vill. of Port Chester, 704 F. Supp. 2d 411 (S.D.N.Y. 2010)........................... 15
Vieth v. Jubelirer, 541 U.S. 267 (2004) ............ passim

iv
Whitford v. Nichol, 180 F. Supp. 3d 583 (W.D. Wis. 2016) ............................................... 7, 14, 22
OTHER AUTHORITIES
Nicholas Stephanopoulos & Eric McGee, Partisan Gerrymandering and the Efficiency Gap, U. Chi. L. Rev. 831, 834 (2015) .................................................................. 4
Jowei Chen and David Cottrell, Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the U.S. House, 44 Electoral Stud. 329 (2016)........................... 9, 25
Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q. J. of Pol. Sci. 239 (2013) ........................................................ passim
Robert Erikson, Malapportionment, Gerrymandering, and Party Fortunes in Congressional Elections, 66 Am. Pol. Sci. Rev. 1234 (1972) ............................................. 8, 9
Nicholas Goedert, Gerrymandering or Geography? How Democrats Won the Popular Vote but Lost the Congress in 2012, Res. & Pol., Apr. 8, 2014........... 5, 8, 22, 24

v
Malia Jones & Kristian Knutsen, The Political Geography of Wisconsin: Partisanship and Population Density, WisCONTEXT (Nov. 7, 2016, 7:05 PM) ....... 7, 10
Election History for INDIANA, Polidata.org, http://www.polidata.us/books/in/pub/ineh cxc1.pdf (last visited April 13, 2017)................ 21
Report of Professor M.V. Hood III, available at http://www.hvjt.law/wp-content/ uploads/2017/04/First-RebuttalDeclaration-of-M-V-Hood-III-Expert-4-317-2.pdf ..................................................... passim

1
STATEMENT OF INTEREST OF THE AMICI CURIAE
The National Republican Congressional Committee (“NRCC”) is the principal national political party committee focused on electing Republican candidates to the United States House of Representatives. Members of the NRCC include all incumbent Republican House Members. A Chairman and the Executive Committee, composed of the Republican House Members, govern the NRCC. 1 Most of the NRCC’s Members—excluding only those from states with only one congressional district— each represent a single congressional district whose boundaries are re-established after each decennial census.
The Republican National Committee ("RNC") is the national political organization of the Republican Party of the United States. From supporting candidates and party organizations, to building and enhancing election data, to sponsoring voter registration, and turnout programs, the RNC is involved in a wide range of party-building activities. The RNC supports candidates nationwide for a myriad of federal, state and local offices.
Consequently, a ruling from this Court will directly impact both amici.
1 No party’s counsel authored any part of this brief. No person other than the amici curiae made a monetary contribution intended to fund the preparation or submission of this brief. On April 17, 2017 and April 18, 2017, counsel for Appellants and Appellees, respectively, provided written consent to the filing of this brief.

2
SUMMARY OF THE ARGUMENT
Appellees’ proposed test purports to discover what has eluded courts for decades: a judicially manageable standard to determine unconstitutional partisan gerrymanders. But Appellees’ Proposed Standard, which relies inexorably on the “Efficiency Gap,” is materially deficient.
First, the reality of political geography undercuts the “efficiency gap” theory. Some voters who support one party are naturally “packed” as a result of residential patterns not connected to legislative choices. Under Appellees’ “efficiency gap” theory, the votes of these geographically packed voters are classified as “wasted” votes. This Court’s prior precedents and amici reject the notion that votes that fail to elect, or are in excess of the amount necessary to elect, are wasted.
Furthermore, significant social science literature illustrates how the reality of political geography makes it more difficult to draw significant numbers of compact and contiguous competitive districts of equal population, particularly as the size of the legislative body increases.
Second, the “efficiency gap” is actually a partisan solution to the perceived problem of many Democratic Party voters living in highly concentrated areas. Adopting any constitutional standard that depends on the “efficiency gap” will result in requiring the same bizarrely shaped districts that this Court has rejected in racial gerrymandering cases.

3
Third, the foundational premise of the “efficiency gap” is that it compares the number of seats in a legislature with the number of statewide votes. JA270a. But the Constitution contains no right to proportional representation in legislative bodies based on statewide vote totals. This Court should therefore reject Appellees’ proposed test.
ARGUMENT
I. The “Efficiency Gap” Cannot Be A Component Of A Judicially Manageable Standard Because It Measures Political Geography.
The “efficiency gap” (“EG”) standard is not the work of professional mathematicians, statisticians, or political geographers. Rather, it is a calculation created by two law school professors who published the EG theory in the University of Chicago Law Review. The EG was not subjected to scientific peer review, nor any other rigorous scientific review, because the EG does not describe any objectively observable phenomena. Rather, the EG serves to justify its proponents’ view of how districts should be drawn in light of their entirely subjective judgment that certain votes are “wasted” unless properly distributed.2 Appellees ask this Court to adopt this
2 Labeling any vote as a “wasted” vote is anathema to any conception of a representative form of government. It is beyond the scope of this brief to address this concept other than to note that no vote should ever be considered by the courts or by the people as “wasted.” Every vote

4
proposal as an indispensable piece of a judicially manageable standard.
The proposed standard treats the following votes as “wasted”: (1) every vote for a losing candidate and (2) every vote not needed to secure a victory (in a two party race this equates to anything in excess of 50% of the votes plus one). The EG is then calculated by dividing the “wasted” votes for each party in an election by the overall votes cast in that election.3 The percentage difference at the end of this equation is the EG. Any EG above 7%, according to Appellees’ expert, will continue to favor the party it benefits for the life of the plan. JA163a. Furthermore, according to Appellees’ expert, this “favoritism” will work to lock out a party from holding a majority in the legislative body even if there is a huge swing in statewide vote share. JA163a-64a.
According to the creators of the EG, the EG “aggregates all of a district plan’s cracking and packing choices into a single tidy number.” Nicholas Stephanopoulos & Eric McGee, Partisan Gerrymandering and the Efficiency Gap, U. Chi. L. Rev. 831, 834 (2015) (emphasis added). By the admission of the Appellees’ own expert, as well as the majority below, Wisconsin experiences a natural
and every voter in every precinct plays a vital role in our system of government. 3 The mathematical formula can be expressed in the following way, EG = Wb/n – Wa/n, where W = “wasted” votes, b and a = individual political parties, and n = total number of votes in the election. JA160a n. 276.

5
“packing” effect due to the high concentration of Democratic voters in Milwaukee and Dane Counties. JA200a-01a. Yet, the authors of the EG already assume that any “packing” and “cracking” that has occurred is the choice of the legislature. This is an assumption that proves fatal. Attributing all geographical inefficiencies to partisan intent contradicts the overwhelming weight of the evidence. See Nicholas Goedert, Gerrymandering or Geography? How Democrats Won the Popular Vote but Lost the Congress in 2012, Res. & Pol., Apr. 8, 2014, at 1 (hereinafter Goedert, Gerrymandering or Geography); Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q. J. of Pol. Sci. 239, 241 (2013) (hereinafter Chen, Unintentional Gerrymandering).
The majority noted this “packing” effect in Wisconsin, writing, “Wisconsin’s political geography affords Republicans a modest natural advantage in districting.” JA200a. The Appellees acknowledge a natural packing effect. JA101-102 (“[Appellees’]… counsel stated that ‘there likely is some natural packing’ of Democratic voters, ‘especially of minority voters in places like Milwaukee.’”). This Court has even recognized that a “natural packing effect” can, and does, occur. See Vieth v. Jubelirer, 541 U.S. 267, 290 (2004) (“[P]olitical groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a ‘natural’ packing effect.”); see id. at 309 (Kennedy, J., concurring) (citing a study on political geography stating that “[c]ompactness standards help

6
Republicans because Democrats are more likely to live in high density regions.”).
At present, this natural “packing” effect is largely unique to Democrats. See Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. 239, 245 (“The complex process of migration, sorting, and residential segregation… has left the Democrats with a more geographically concentrated support base than Republicans.”). As a result, the unavoidable consequence of adopting the EG as a constitutional standard will be to benefit one political party (the Democrats) at the expense of another (the Republicans) and require maps to comply with the EG’s mathematical requirements rather than traditional districting principles. Adopting the EG as a judicially manageable standard means introducing more partisanship into the redistricting process, not less. 4 Attributing intent to natural differences in political geography by using the EG will compel legislatures to “pack” and “crack” their states’ own natural political geography to achieve a smaller EG. This position is untenable because it places the Court in the position of picking political winners and losers. See Vieth, 541 U.S. at 308-09 (Kennedy, J., concurring) (noting that under the plaintiffs’ proposed standard, a court applying the “fairness principle” would “unavoidably have significant political effect, whether intended or not . . .we could not assure the parties that this
4 The same applies to the majority’s contention that the EG be used as “corroborative evidence” of discriminatory intent and effect, and not as part of a judicially manageable standard per se. JA176a.

7

criterion . . .would not in fact benefit one political party over another.”).

Democratic voters are more likely to be

packed into compact and homogenous areas not only

in Wisconsin, but also in most of the rest of the

United States. See Malia Jones & Kristian Knutsen,

The Political Geography of Wisconsin: Partisanship

and Population Density, WisCONTEXT (Nov. 7,

2016,

7:05

PM),

http://www.wiscontext.org/political-geography-

wisconsin-partisanship-and-population-density

(hereinafter Jones, The Political Geography of

Wisconsin); Chen, Unintentional Gerrymandering, 8

Q.J. of Pol. Sci. at 239. In light of this general trend,

which results in an “inefficient” concentration of

Democratic votes in densely populated areas, the EG

is a tool that advances the partisan interests of the

Democratic Party.5 Appellees would have the Court

enshrine this partisan interest in the Constitution.

Furthermore, the EG calculation is itself extremely sensitive to small changes in voter turnout. See Whitford v. Nichol, 180 F. Supp. 3d 583, No. 15-421 (W.D. Wis. Jan. 5, 2016) (Decl. of Trende, ¶ 148) (Dkt. No .55). This Court recognized a fundamental truth about winner-take-all elections when it observed that, “even a narrow statewide preference for either party would [under a scenario where the party vote is 45% to 55%] produce an

5 This is not uniform throughout the United States and is
“less pronounced or absent in less industrialized states . . . and in relatively sparse Western states.” Chen,
Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 242.

8

overwhelming majority for the wining party…” Bandemer, 478 U.S. at 130. A 5% swing in voter preference is not large or unusual. Therefore, even in districts designed to be “tossups,” a 5% swing could result in a large EG that, under Appellees’ vision, would invite constitutional scrutiny. See JA301a-03a. The natural packing of Democratic voters only serves to enhance this phenomenon. JA301a (“[Due to Democrat’s natural packing] Democratic losses and wins both produce massive numbers in wasted votes.”). Aside from its apparently partisan purposes and/or effects, the EG is too sensitive to voter fluctuations to be a reliable tool for this Court, or any other, to rely upon. See JA153 (“[T]he EG metric is sensitive enough that relatively small differences in the electoral outcome can make a difference between whether a map is presumptively constitutional or not.”).

A. Social

Science

Research

Confirms That The Geographic

Distribution Of Republican And

Democratic Voters Results In

More

Republican

Seats

Irrespective

Of

Partisan

Gerrymandering.

Geographers have long noted that Democrats and Republicans are distributed unevenly in the United States. See Goedert, Gerrymandering or Geography, Res. & Pol. at 1; Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 240; see generally Robert Erikson, Malapportionment, Gerrymandering, and Party Fortunes in

9
Congressional Elections, 66 Am. Pol. Sci. Rev. 1234 (1972) (hereinafter Erikson, Malapportionment).
It is well-known to researchers and the courts that voters who support Democrats are often tightly clustered in cities, while Republicans are more evenly distributed outside of urban areas. Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 242-43; see also Jowei Chen & David Cottrell, Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the U.S. House, 44 Electoral Stud. 329, 333 (2016) (hereinafter Chen, Evaluating Partisan Gains); JA200a-01a; Vieth, 541 U.S. at 290. This clustering has occurred since at least the 1950’s. See Erikson, Malapportionment, 66 Am. Pol. Sci. Rev. 1234, 124244. Figure 1 is an example of this phenomenon in Wisconsin.

10 Figure 1: Jones, The Political Geography of Wisconsin, supra at 7.

11
The voters in the two most populated counties have become increasingly Democratic (as shown by movement up the graph in Figure 1) while the voters of the majority of small and medium-sized counties remain fairly evenly distributed in terms of political affiliation. This phenomenon has been observed in other states, including Florida. Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 246 fig.3; see infra Figure 2. One need only look at the visual representation of the Democratic “peaks” in Figure 2 to understand the extent of this clustering effect. The clustering of Democratic voters in compact urban areas has the natural—and unintended— outcome of creating more Republican districts when using the traditional redistricting criteria of equal population, compactness and contiguity. Chen, Unintentional Gerrymandering, 8 Q.J. Pol. Sci. at 264; see Vieth, 541 U.S. at 309 (Kennedy, J., concurring).

12
Figure 2: Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 246.
Chen’s research shows (see Figure 3) that as the ratio of seats to voters in a legislative body increases, it becomes more difficult for the political party whose voters are geographically concentrated to maintain statewide vote parity.

13
Figure 3: Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 252 fig.4.
This is logical because as the size of the legislative body increases, meaning more legislative districts are added, the population required to comply with the one-person, one-vote requirement, in each district, necessarily decreases. As the required population decreases, the geographic reach of those districts also decreases in densely populated areas. For example, when the legislature of Florida divides the state into 120 districts, drawing contiguous and compact legislative seats in the Miami-Dade and Broward County areas necessarily results in districts that are overwhelmingly supportive of the Democrat Party’s candidate. This is not “political gerrymandering” but is simply the

14

result of the residential clustering of voters supporting the Democratic Party’s candidates.

Population density and voting patterns are

highly

correlated.

Chen,

Unintentional

Gerrymandering, 8 Q.J. of Pol. Sci. at 243 fig.1.

Higher population densities correlate with more

votes for Democrats. Id. at 242.

Democratic voters are also, generally, more homogenous within a given geographical area. JA309a (“[For example], in 2012 President Obama won [Wisconsin’s] Assembly District 16 with more than 90% of the vote and, not surprisingly, the incumbent Democratic candidate ran unopposed. There simply are no districts that have comparable margins for Republicans.”); Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 242-43 (while discussing the Bush-Gore presidential election in Florida “[B]ush received over 80% of the vote in only 80 precincts, Gore received over 80% [of the vote] in almost 800 precincts”). The EG does not adequately account for this phenomenon. Whitford, 180 F. Supp. 3d 583, No. 15-421 (W.D. Wis. Jan. 5, 2016) (Decl. of Trende, ¶ 148) (Dkt. No. 55). Large shifts in the EG do not necessarily correspond to redistricting years. Id. at ¶ 130, reinforcing that the EG is partly a reflection of political geography and not partisan gerrymandering. Id. at ¶ 130-31.

15

B. Appellees’ “Efficiency Gap” Is

Biased Towards Democrats And

Is

Likely

To

Cause

Constitutional Conflict With

Section Two Of The Voting

Rights Act.

Adopting the “efficiency gap” test may create a conflict with districting plans ordered to create majority-minority districts to remedy violations of Section 2 of the Voting Rights Act. In other words, the creation of majority-minority districts has the potential to cause “efficiency gap” “constitutional questions” for Section 2 remedial plans. See, e.g., Garza v. Los Angeles, 918 F.2d 763 (9th Cir. 1990) (affirming district court ruling that a district required a Hispanic voting majority); Colleton Cnty. Council v. McConnell, 201 F. Supp. 2d 618 (D.S.C. 2002) (finding majority-minority or near majorityminority district required under Section 2 in court drawn plan); United States v. Vill. of Port Chester, 704 F. Supp. 2d 411 (S.D.N.Y. 2010) (adopting a remedial plan with a majority of Hispanic Citizen Voting Age Population (CVAP) in an electoral district).

In addition to the EG causing a potential conflict between the Constitution and Section 2, the EG could also render unconstitutional plans drawn to acknowledge the geographic concentration of supporters of a political party found in Easley v. Cromartie, 532 U.S. 234 (2001), or motivated by bipartisan incumbency protection. See Gaffney v. Cummings, 412 U.S. 735 (1973). After all, “[a] bipartisan gerrymander employs the same

16
technique, and has the same effect on individual voters, as does a partisan gerrymander.” See Bandemer, 478 U.S. at 154 (O’Connor, J., concurring).
An expert report by Professor M.V. Hood III filed in Common Cause v. Rucho, illustrates this concern. Common Cause v. Rucho, Nos. 16-1026, 161164, 2017 U.S. Dist. LEXIS 30242 (M.D.N.C. March 3, 2017) (denying motion to dismiss political gerrymandering claim).6 Professor Hood’s report was completed after the motion to dismiss was denied, and was not yet before the Rucho court when the March 3, 2017 order was issued.
Professor Hood proposes a hypothetical consisting of two redistricting plans each containing 60,000 voters evenly divided among ten districts. This hypothetical is depicted in the following three graphics.
6 Dr. Hood’s report is available at http://www.hvjt.law/wpcontent/uploads/2017/04/First-Rebuttal-Declaration-of-MV-Hood-III-Expert-4-3-17-2.pdf (last accessed April 22, 2017.).

17
Table 1: Id. at 16 tbl.5. Dr. Hood states that Plan 1 is drawn to
resemble North Carolina’s redistricting maps from 1970, 1980, and 1990. See Hood Report at 20. Group IA, which can be viewed as a minority group, and Group IB represent two voting blocs that overwhelmingly support Party A. Group II overwhelmingly supports Party B and Group III is an independent voting bloc.
In Plan 1, Group IA is distributed evenly across six districts.

18
Table 2: Id. at 17 tbl.6. Table 2 demonstrates what happens as more
of the independent vote (Group III) casts its votes for Party B instead of Party A under two hypotheticals. If Party A takes a majority of the independent vote, Party A will win all ten seats. However, as Party B receives a majority of the vote, a shift takes place under Plan 1. Party A is then reduced to 60% of the seats. But, no matter how high the independent vote is for Party B, it can win only 40% of the seats. See Hood Report at 17.
In Table 2’s Plan 1, as Group III’s votes shift from Party A to Party B, Party A loses seats. But even if Party B wins 99% of Group III’s votes, Party A would still win 6 seats, representing a majority. See id. at 17.

19
Plan 2 resembles a Section 2 Voting Rights Act remedial plan. Id. at 17, 20. Unlike the even distribution of Group IA in Plan 1, here, in Plan 2, Group IA is larger in districts 1 and 2, with the remainder distributed evenly across six districts. See Hood Report at 16. Hood then varies Group III’s votes for Party A and B, leaving the remaining blocs constant. In contrast to Plan 1, Plan 2 is more volatile, providing a greater variety of results ranging from Party A winning all 10 seats to Party A winning only 2 seats. See id.

20
Figure 4: Id. at 19 fig.5. Under Appellees’ EG analysis, Plan 2 would
consistently be declared an unconstitutional partisan gerrymander. See id. at 18. Conversely, Plan 1, under which Party B cannot win any additional seats even when Party B takes 99% of Group III’s votes, Appellees’ EG only occasionally condemns Plan 1, and only in the most extreme of circumstances. Stated differently, Plan 1 is a virtually unbreakable political gerrymander on what

21

is similar to a racial vote dilution. Yet Plan 1 escapes the sensitive shoals of Appellees’ EG.
Plan 2 is always described as a gerrymander even though it provides multiple variations in seat distribution. Furthermore, Plan 2 is capable of exhibiting what Justice O’Connor described as the self-correcting nature of political gerrymanders. See id.; see Bandemer, 478 U.S. at 152 (O’Connor, J., concurring) (noting that there was no proof that partisan gerrymandering is an evil that the vast resources of the major political parties could not check and correct); 7 Vieth, 541 U.S. at 287 n.8 (noting that, despite an alleged gerrymander that allegedly deprived Republican judicial candidates electoral victories, every Republican judicial candidate won their election after district court ruled in plaintiffs’ favor causing the Fourth Circuit to reverse and remand for reconsideration).
Hood's hypotheticals reveal an underlying bias in “efficiency gap” analysis. Appellees’ standard disguises the typical Democrat political gerrymander (Plan 1) while falsely labeling Voting Rights Act remedial plans as political gerrymanders. See Vieth, 541 U.S. at 308-09 (Kennedy, J., concurring); Colegrove v. Green, 328 U.S. 549, 556 (1946) (exhorting that courts should not enter the “political

7 Justice O’Connor’s prediction was prescient because four

years after Bandemer, under the same map, the

Democrats won a majority in the state House. Election

History

for

INDIANA,

Polidata.org,

http://www.polidata.us/books/in/pub/inehcxc1.pdf (last

visited April 13, 2017).

22
thicket” of redistricting). As a result, the “efficiency gap” is a defective and deficient standard for determining an equal protection violation.
C. This Case Demonstrates Why Appellees’ “Efficiency Gap” Is Deficient.
These effects are well illustrated here in this case. The inefficient clustering of Democratic votes results in more Republican districts than one would expect if there were an even distribution of all voters across a geographic area. Goedert, Gerrymandering or Geography, Res. and Pol. at 3 (“[W]e observe bias even where we should expect none in the redistricting process. Democrats . . .fell short of expectations in several states with bipartisan or court-drawn maps.”).
The Appellants’ expert below explained this phenomenon. See Whitford, No. 15-421 (Decl. of Trende, ¶¶ 130-31 (Dkt. No. 55)). Trende identified 17 states as having an “unambiguous history” of a high EG over the life of that state’s plan. See infra Table 3. However, of the 17, only seven had legislatures where a single political party controlled both chambers when the map was drawn. See id. Whitford, No. 15-421 (Decl. of Trende, ¶ 110) (Dkt. No. 55). Additionally, “[i]n five of those seven instances . . . , control of at least one of the maps that produced unambiguous histories of consistent “efficiency gaps” switched partisan hands at least once.” Id. Furthermore,
[E]fficiency gaps are growing in ways that gerrymandering has difficulty

23

explaining, and are present in maps

drawn by courts, by independent

commissions, and by members of the

opposing party. The EG would indicate

partisan intent, or, in the view of the

majority below, be evidence of such.

This would occur even in situations in

which

one

party

political

gerrymandering would be impossible.

Id. at ¶ 131. In other words, the use of the EG as a tool to identify partisanship is, at best, misleading.

24
Table 3: Id. at ¶ 109 tbl.1. Researchers have created computer models to
develop more proportional districts, and the results almost always favor Republicans due to political geography’s favoring the Republican Party. Chen, Unintentional Gerrymandering, 8 Q.J. of Pol. Sci. at 252-53 (using Florida as an example, a roughly 50-50 Republican-Democrat statewide vote split translates into an average of 61% Republican districts due to the effects of political geography); see also Goedert, Gerrymandering or Geography, Res. and Pol. at 1 (“[A] persistent pro-Republican bias is also present

25
when maps are drawn by courts or bipartisan agreement.”). A study of Wisconsin found that the state’s 2016 congressional redistricting plan was only 4% (or a third of a seat) more Republican than what the computer simulation said it should be. Chen, Evaluating Partisan Gains, 44 Electoral Stud. at 335-36. For much of the United States in general, and Wisconsin specifically, there is a natural clustering of votes that results in increased Republican representation over and above what statewide vote totals would suggest if seats were awarded in proportion to statewide votes.
II. The “Efficiency Gap” Requires Bizarrely Shaped Districts Of The Kind That This Court Previously Rejected.
In the racial gerrymandering cases, this Court has found equal protection violations when maps are drawn predominantly on the basis of race. Racial intent is typically evidenced by a map with bizarre shapes. See, e.g., Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017). To provide a “remedy” to the perceived “problem” of “political gerrymandering,” drawing maps to accommodate the EG would result in bizarre shapes as a result of partisan voting patterns. Map-drawers would be forced to combine densely packed Democratic precincts with less densely packed precincts to achieve the sort of competitive districts that would satisfy the EG test.

26
Figure 5: This is a map showing North Carolina District 12 which, “winds in a snakelike fashion through tobacco country, financial centers, and manufacturing areas 'until it gobbles in enough . . . black neighborhoods.'" Shaw v. Reno, 509 U.S. 630, 658 (1993) (declaring unconstitutional North Carolina map as a racial gerrymander); but see Pope v. Blue, 809 F. Supp. 392, 397 (W.D.N.C. 1992) (three-judge court) sum. aff’d., Pope v. Blue, 506 U.S. 801 (1992) (declaring that the same map is not a partisan gerrymander).
Appellees ask this Court to require maps that will, by necessity, look like the classic and familiar examples of gerrymandering. Appellees’ remedy to the “problem” of “political gerrymandering” is the constitutionally mandated creation of competitive districts that will look as bizarre as those districts rejected by this Court and lower courts in racial gerrymandering cases.

27
This Court should not accept this invitation to further intervene into the political thicket. Rather, this Court should reject the notion that the judiciary should be called upon to solve one party’s political geography dilemma.
III. Appellees Proposed Standard Is Based On The Flawed Assumption That The Constitution Requires Proportional Representation Of Political Parties In The Legislature Based On Statewide Vote Totals.
The term “efficiency” is a comparative one. As the dissent below demonstrates, the “efficiency gap” test is premised on “comparing legislative seats to statewide votes....” JA270a. Thus, if a party wins 60% of the statewide vote but wins only 51% of the assembly seats, there is a large “efficiency gap.” Id. The “efficiency gap” test is also an improper tool for assessment because it measures all of the votes received by candidates from the 99 districts in Wisconsin and from that determines how many seats that party “should” win. JA277a.
Thus, the test is concerned with how many seats a party “should” win if there were in fact an even statewide distribution of voters with one preference or another as opposed to capturing the individual nature of each district's election as a contest between two candidates. Id. Thus, disproportionality “is simply a side-effect of [a State’s] decision” to have winner-take-all districts because only one party will represent a whole district that may contain 49% of one party’s voters

28
and 51% of another party’s voters. JA279a; see also Bandemer, 478 U.S. at 130. Appellees’ test, therefore, presumes that proportionality of representation in legislative bodies based on statewide votes is the “norm” against which “efficiency” is being measured. Appellees’ “efficiency gap” is similar to the Vieth plaintiffs’ “fairness principle” in that what plaintiffs there proposed “is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth’s congressional delegation.” See Vieth, 541 U.S. at 308 (Kennedy, J., concurring). There is, however, “no authority for this precept.” Id.
The “efficiency gap” is a poor test to adopt—as would be any test relying on measurements of partisan affiliation of districts—because partisan affiliation is an inherently mutable classification. See Bandemer, 478 U.S. at 156 (O’Connor, J., concurring). Voters often change political party preference, voting for a candidate from one party in one election and voting for another candidate from another political party in the next election. See id. This difficulty of measuring partisan affiliation makes court intervention more tenuous. See id. By contrast, race is immutable. See id.
The “efficiency gap” views political power through the myopic lens of the ability to win elections and control the majority of seats in a legislative body. But this Court rejected that view in Bandemer, concluding that “the power to influence the political process is not limited to winning elections.” Bandemer, 478 U.S. at 132. Even those who voted for the losing candidate maintain the

29
ability to influence legislation and to adequate representation by the winning candidate. See id. The “efficiency gap” fails to account for this ability to influence the political process.
The “efficiency gap” is simply a tool for determining how many seats political parties “should” receive based upon the premise that statewide proportional representation is the constitutionally required norm. Adopting the proposed test would fulfill Justice O’Connor’s prophecy that courts, in response to partisan gerrymandering claims will depart from the bedrock principle of no proportional representation, “toward some form of rough proportional representation for all political groups.” Bandemer, 478 U.S. at 145; Vieth, 541 U.S. at 282.
Our constitution eschews mandating proportional representation because in each election, especially legislative elections, “voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties. Consequently, efforts to determine party voting strength presuppose a norm that does not exist....” Bandemer, 478 U.S. at 159 (O’Connor, J., concurring).
Justice O’Connor rightly warned that the use of proportional representation as evidence of partisan gerrymandering will inevitably lead to a constitutional right of some proportionality. See id. at 157. Adopting the appellees’ test will–as Justice O’Connor warned–lead to a constitutional right to some degree of proportional representation. See id.

30
While the EG standard may not produce perfect proportionality, it is premised on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” Id. at 159. Accordingly, the Appellees’ test also presumes a constitutional right to proportional representation.
CONCLUSION Appellees do not present a new comprehensive test to impartially evaluate partisan gerrymandering claims. This Court should note probable jurisdiction, or summarily reverse, to correct the district court’s error. Respectfully submitted, Jason Torchinsky Counsel of Record J. Michael Bayes Shawn Toomey Sheehy Phillip M. Gordon Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive Suite 100 Warrenton, VA 20186 (540) 341-8808 (540) 341-8809 Jtorchinsky@hvjt.law P. Christopher Winkelman National Republican Congressional Committee 320 First Street, SE Washington, DC 20003 202-479-7000 202-484-2543

31
John R. Phillippe Jr. Dalton L. Oldham Republican National Committee 310 First Street, SE Washington, DC 20003 202-863-8500 202-863-8654
Counsel for Amici Curiae
April 24, 2017

 
 No. 16-1161

In the Supreme Court of the United States
_______________

BEVERLY R. GILL, ET AL., Appellants,
v. WILLIAM WHITFORD, ET AL.,
Respondents.
_______________

ON APPEAL FROM THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
_______________

BRIEF OF AMICUS CURIAE REPUBLICAN NATIONAL COMMITTEE
IN SUPPORT OF APPELLANTS
_______________

John R. Phillippe, Jr. Dalton L. Oldham REPUBLICAN NATIONAL
COMMITTEE 310 First Street, S.E. Washington, D.C. 20003 (202) 863-8500

Michael T. Morley Counsel of Record
223 Pawnee Road Cranford, N.J. 07016 (860) 778-3883 michaelmorleyesq@
hotmail.com

Counsel for Amicus Curiae Republican National Committee

QUESTIONS PRESENTED

1. Did the district court violate Vieth v. Jubelirer, 541 U.S. 267 (2004), when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis?

2. Did the district court violate Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles?

3. Did the district court violate Vieth by adopting a watered-down version of the partisangerrymandering test employed by the plurality in Davis v. Bandemer, 478 U.S. 109 (1986)?

4. Are Defendants entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed?

5. Are justiciable?

partisan-gerrymandering

claims

ii
TABLE OF CONTENTS Page
QUESTIONS PRESENTED ..................................... i
TABLE OF AUTHORITIES ................................... iv
INTERESTS OF AMICUS CURIAE ....................... 1
SUMMARY OF ARGUMENT.................................. 1
ARGUMENT ............................................................ 6
I. RESPONDENTS LACK STANDING TO CHALLENGE WISCONSIN’S ENTIRE LEGISLATIVE MAP ........................ 8
II. AN ACTUAL GERRYMANDER SHOULD BE AN ESSENTIAL ELEMENT OF ANY POLITICAL GERRYMANDERING CLAIM ...................... 13
III. THE DISTRICT COURT’S PROPOSED STANDARD FOR POLITICAL GERRYMANDERING CLAIMS IS IMPROPER DUE TO ITS HEAVY RELIANCE ON THE “EFFICIENCY GAP” ..................................... 22
A. The District Court’s Approach Effectively Requires Proportional Representation ................. 24

iii
B. The Statewide Efficiency Gap Concept Is Inconsistent With This Court’s First Amendment Jurisprudence......................................... 28
1. Political communications cases ..... 29
2. Party nomination cases ................. 30
3. Minor party rights cases ................ 32
IV. CAUTION IS WARRANTED IN DEFINING THE SCOPE OF A POLITICAL GERRYMANDERING CAUSE OF ACTION...................................... 33
A. Congress Could Assert Authority Under § 5 of the Fourteenth Amendment to Enforce Any Rights Against Political Gerrymandering..................................... 34
B. Section 2 of the Fourteenth Amendment Suggests a High Threshold for Denials of the Right to Vote Due to Political Gerrymandering..................................... 36
CONCLUSION ....................................................... 38

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Abate v. Mundt, 403 U.S. 182 (1971)........................................... 20

Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257 (2015)................................passim

Anderson v. Celebrezze, 460 U.S. 780 (1983)..................................... 32, 37

Baker v. Carr, 369 U.S. 186 (1962)....................................... 2, 12

Bd. of Estimate v. Morris, 489 U.S. 688 (1989)...................................... 11-12

Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017)............................... 3, 16, 19

Brown v. Thomson, 462 U.S. 835 (1983)..................................... 14, 20

Buckley v. Valeo, 424 U.S. 1 (1976)........................................... 5, 30

Bush v. Vera, 517 U.S. 952 (1996)................................. 3, 15, 20

Cal. Bankers Ass’n v. Schultz, 416 U.S. 21 (1974)............................................. 12

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)........................................... 31

Cassell v. Texas, 339 U.S. 282 (1950)........................................... 25

v
Chapman v. Meier, 420 U.S. 1 (1975)............................................... 25
Citizens United v. FEC, 558 U.S. 310 (2010)........................................... 30
City of Boerne v. Flores, 521 U.S. 507 (1997)................................. 5, 34, 35
Coleman v. Miller, 307 U.S. 433 (1939)....................................... 2, 11
Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996)........................................... 30
Connor v. Finch, 431 U.S. 407 (1977)................................. 4, 21, 27
Cooper v. Harris, 137 S. Ct. 1455 (2017)....................................... 17
Cousins v. Wigoda, 419 U.S. 477 (1975)........................................... 31
Davis v. Bandemer, 478 U.S. 109 (1986)....................................passim
Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981)........................................... 31
Easley v. Cromartie, 532 U.S. 234 (2001)........................................... 20
Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214 (1989)..................................... 30, 31

vi
FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985)........................................... 30
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)........................................... 34
Gaffney v. Cummings, 412 U.S. 735 (1973)........................................... 25
Gomillion v. Lightfoot, 364 U.S. 339 (1960).................................... 2-3, 15
Gregory v. Ashcroft, 501 U.S. 452 (1991)........................................... 36
Hunter v. Underwood, 471 U.S. 222 (1985)........................................... 17
Karcher v. Daggett, 462 U.S. 725 (1983)............................... 14, 20, 21
Katzenbach v. Morgan, 384 U.S. 641 (1966)....................................... 5, 34
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (“LULAC”).............. 4, 11, 24
Mahan v. Howell, 410 U.S. 315 (1973)..................................... 21, 22
Miller v. Johnson, 515 U.S. 900 (1995)....................................passim
Mills v. Alabama, 384 U.S. 214 (1966)........................................... 29
Mobile v. Bolden, 446 U.S. 55 (1980)............................... 4, 7, 24, 35

vii
N.Y. State Board of Elections v. Lopez-Torres, 552 U.S. 196 (2008)............................5, 19, 29, 31
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)........................................... 29
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000)........................................... 29
O’Brien v. Brown, 409 U.S. 1 (1972)............................................... 31
Reynolds v. Sims, 377 U.S. 533 (1964)............................4, 14, 20, 21
Richardson v. Ramirez, 418 U.S. 24 (1974)............................................. 17
Shaw v. Hunt, 517 U.S. 899 (1996)............................... 10, 17, 18
Shaw v. Reno, 509 U.S. 630 (1993)................................. 3, 17, 19
Sinkfield v. Kelley, 531 U.S. 28 (2000)..................................... 2, 9, 10
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)....................................... 12
Tashjian v. Republican Party, 479 U.S. 208 (1986)........................................... 32
Taylor v. Louisiana, 419 U.S. 522 (1975)........................................... 25
Timmons v. Twin Cities Area New Party, 520 U.S. 351 ...................................................... 32

viii
United States v. Carolene Prods. Co., 304 U.S. 144 (1938)........................................... 18
United States v. Hays, 515 U.S. 737 (1995)................................... 2, 9, 10
Vieth v. Jubilerer, 541 U.S. 267 (2004)....................................passim
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)........................................... 16
Washington v. Davis, 426 U.S. 229 (1976)....................................... 3, 17
Wells v. Rockefeller, 394 U.S. 542 (1969)........................................... 14
Whitcomb v. Chavis, 403 U.S. 124 (1971)....................................passim
White v. Regester, 412 U.S. 755 (1973)........................................... 25
Williams v. Rhodes, 393 U.S. 23 (1968)................................... 5, 32, 37
Constitutional Provisions, Statutes, and Rules U.S. CONST. amend. I ............................................. 24 U.S. CONST. amend. VI........................................... 25 U.S. CONST. amend. XIV .................................. 34, 37 U.S. CONST. art. I, § 4 .............................................. 6 52 U.S.C. § 20923 ................................................... 18

ix
52 U.S.C. § 30106 ................................................... 18
Sup. Ct. R. 37.6 ........................................................ 1
Voting Rights Amendments Act of 1982, Pub. L. No. 97-205, 96 Stat. 131 (June 29, 1982) (codified at 52 U.S.C. § 10301) .................... 35
Other Sources
THE FEDERALIST (George W. Carey & James McClellan, eds. 2001) .............................. 7
1 CHANCELLOR JAMES KENT, COMMENTARIES (12th ed. 1873) .......................... 8
Daryl Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857 (1999) ........................... 38
Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 NW. U. L. REV. ONLINE 103 (2017)............. 35
Michael T. Morley, Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment, 2015 U. CHI. LEGAL F. 279 .......................... 37, 38

INTERESTS OF AMICUS CURIAE1
The Republican National Committee (“RNC”) is a national political party committee and the national political organization of the Republican Party of the United States. The RNC represents the interests of Republican voters and candidates at all levels throughout the nation and is dedicated to growing support for the party and its candidates through its data science and grassroots programs. It engages in a wide range of party-building activities including voter registration, persuasion, and turnout programs, and supports candidates at the local, state, and national levels. In short, the RNC has expertise in conducting political campaigns and how voters respond to them, and can offer a perspective it hopes will be helpful to the Court.
SUMMARY OF ARGUMENT
1. The district court erred in holding that Respondents had standing to challenge Wisconsin’s statewide legislative map. A voter alleging an unconstitutional racial gerrymander has standing to challenge only the boundaries of his own district. Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1265
1 Counsel for all parties have consented to the filing of this brief. Letters evidencing consent are on file with the Clerk. Pursuant to S. Ct. R. 37.6, amicus curiae certifies that no counsel for a party authored the brief in whole or part, and no party, counsel for a party, or person other than amicus, its members, or its counsel made any monetary contributions to fund the preparation or submission of this brief.
1

(2015); Sinkfield v. Kelley, 531 U.S. 28, 30 (2000); United States v. Hays, 515 U.S. 737, 738 (1995). It follows that a voter lacks standing to challenge the boundaries of other districts in which she is not registered, even if they unavoidably affect the shape of her district. Sinkfield, 531 U.S. at 30.
This Court has rejected the notion that an individual voter can bring a statewide racial gerrymandering claim. Ala. Legis. Black Caucus, 135 S. Ct. at 1268. A challenge to a state’s complete legislative map must be comprised of independent challenges to the shape of each district within the state. Id. at 1265, 1267. Accordingly, a plaintiff with standing is necessary to challenge each district.
Assuming political gerrymandering claims are justiciable, the same reasoning would apply to them. Because the right to vote is a “personal right,” Coleman v. Miller, 307 U.S. 433, 469 (1939), a person lacks standing to challenge alleged dilution or undervaluation of votes in other districts, Baker v. Carr, 369 U.S. 186, 206 (1962). Thus, while each Respondent may challenge the shape of his or her own district, he or she may not challenge the boundaries of other districts or the legislative map as a whole.
2. The district court’s proposed standard for political gerrymandering is flawed because it does not require the presence of an actual gerrymander. A gerrymander is a bizarrely shaped district drawn in defiance of traditional redistricting principles, including compactness, contiguity, adherence to natural boundaries, preservation of political subdivisions, and maintenance of communities of interest. See, e.g., Gomillion v. Lightfoot, 364 U.S.
2

339, 340 (1960). Should this Court recognize a cause of action for political gerrymandering, an actual gerrymander should be an essential element of the claim. See Bush v. Vera, 517 U.S. 952, 963 (1996); Vieth v. Jubilerer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring); id. at 348 (Souter, J., dissenting); Davis v. Bandemer, 478 U.S. 109, 165 (1986) (Powell, J., concurring in part and dissenting in part).
In Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017), this Court held that a plaintiff may challenge racial discrimination in redistricting without showing that traditional redistricting principles were violated. Because race is a suspect classification, however, see Shaw v. Reno, 509 U.S. 630, 642-43 (1993), governmental action taken for race-based reasons is subject to strict scrutiny and generally unconstitutional, see Washington v. Davis, 426 U.S. 229, 244-45 (1976), regardless of whether it amounts to gerrymandering.
Our nation’s “long and persistent history of racial discrimination in voting,” as well as the Fourteenth Amendment’s application of strict scrutiny to racial classifications, “seem[s] to compel” the conclusion “that racial and political gerrymanders are [not] subject to precisely the same constitutional scrutiny.” Shaw, 509 U.S. at 650. Political gerrymandering claims do not implicate suspect classifications, and consideration of party affiliation does not trigger strict scrutiny. App. 113a (citing cases); Miller v. Johnson, 515 U.S. 900, 914 (1995).
Accordingly, while a voter may challenge racially discriminatory redistricting regardless of whether it amounts to gerrymandering, an actual gerrymander
3

involving one or more districts drawn in violation of traditional redistricting principles should be required for any political gerrymandering claim. Indeed, far from facilitating political gerrymanders, traditional redistricting principles help mitigate against them. Connor v. Finch, 431 U.S. 407, 425-26 (1977); Reynolds v. Sims, 377 U.S. 533, 581 (1964).
3. The district court’s conception of political gerrymandering claims is also flawed because it relies heavily on the novel concept of the “efficiency gap.” App. 159a, 176a-77a; cf. id. 234a (Griesbach, J., dissenting). The efficiency gap is effectively a measure of whether a political party has received proportional representation in the legislature. See id. 270a (Griesbach, J., dissenting). This Court repeatedly has held that the Constitution does not require states to afford proportional representation, “however phrased,” Mobile v. Bolden, 446 U.S. 55, 79 (1980), to political, social, or other interest groups, id. at 75-76; League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 419 (2006) (“LULAC”) (plurality op.). The district court’s reasoning is simply a variation of the plea for proportional representation this Court rejected in Whitcomb v. Chavis, 403 U.S. 124, 153 (1971).
Moreover, the model of voters and the electoral process upon which the efficiency gap is based contrasts sharply with this Court’s First Amendment jurisprudence. The efficiency gap amalgamates all voters statewide, assuming they would consistently vote for candidates from a particular political party regardless of the district to which they are assigned, the candidates running, the party’s platform, the
4

salient issues, and other election-specific

considerations.

This Court’s jurisprudence

concerning political speech, see, e.g., Buckley v. Valeo,

424 U.S. 1 14-15, 51 (1976) (per curiam); political

parties’ associational rights, see, e.g., N.Y. State

Board of Elections v. Lopez Torres, 552 U.S. 196, 202

(2008); and minor party rights, see, e.g., Williams v.

Rhodes, 393 U.S. 23, 31 (1968), in contrast, is

premised on the fundamental belief that voters are

not fungible deterministic party automatons. Rather,

political debate, each party’s platform, and the

candidates nominated to run in each election are the

primary determinants of how an election will turn

out. The efficiency gap’s assumptions about, and

treatment of, voters is flatly contrary to these lines of

authority.

4. Finally, if this Court recognizes a cause of

action for political gerrymandering, it should define

its scope cautiously, because Congress could assert

power to enforce any such right under § 5 of the

Fourteenth Amendment. Section 5 allows Congress

to prohibit not only actual constitutional violations,

but also other state action that is “not itself

unconstitutional,” as a prophylactic measure. City of

Boerne v. Flores, 521 U.S. 507, 520 (1997); cf.

Katzenbach v. Morgan, 384 U.S. 641, 649-50 (1966).

A broad cause of action for political gerrymandering

would upend the balance between the federal

government and states by opening the door to

congressional efforts to oversee, dictate, or even

manipulate the partisan outcomes of state and local

elections.

5

Furthermore, § 2 of the Fourteenth Amendment specifies that when a state violates the right to vote, it may be stripped of its representation in the U.S. House of Representatives and, by extension, the Electoral College. The extreme severity of this constitutional sanction suggests this Court should adopt a high threshold for what constitutes a violation of the Fourteenth Amendment right to vote. It should be reluctant to conclude that such an extreme remedy is authorized for the adoption of legislative maps that accord with traditional redistricting criteria.
ARGUMENT
A sharply divided three-judge panel of the U.S. District Court for the Western District of Wisconsin contends it has achieved a feat that has stymied this Court for decades: crafting a judicially manageable standard for partisan gerrymandering. Cf. Vieth v. Jubilerer, 541 U.S. 267, 281 (2004) (plurality op.). Its proposal, however, is a calamitous amalgamation of elements that each run contrary to this Court’s redistricting jurisprudence.
The district court held that plaintiffs must first show that “one purpose” behind a challenged legislative map “was to entrench a political party in power.” Appendix to Appellants’ Jurisdictional Statement (hereinafter, “App.”) 109a-10a. Yet this Court repeatedly has held that the Constitution, in assigning primary responsibility for redistricting to legislatures, see U.S. CONST. art. I, § 4, cl. 1, contemplates that legislators may seek to gain
6

partisan advantage in redistricting, Vieth, 541 U.S. at 285; Miller v. Johnson, 515 U.S. 900, 914 (1995).
Second, plaintiffs must establish that, as a result of district boundaries, political parties that receive “roughly equivalent statewide vote shares” would nevertheless win differing numbers of seats in the legislature. App. 153a-54a. Yet this Court has rejected the notion that a political party is entitled to representation in the legislature proportional to its share of the vote, see, e.g., Mobile v. Bolden, 446 U.S. 55, 78-79 (1980); see also Davis v. Bandemer, 478 U.S. 109, 130-31 (1986), and recognized that statewide vote aggregates are virtually irrelevant, since each legislative election is held in a different district between different candidates who may appeal to voters for different reasons, see Whitcomb v. Chavis, 403 U.S. 124, 153 (1971).
Finally, plaintiffs must demonstrate that any such effects are not “justified by the legitimate state concerns and neutral factors that traditionally bear on the reapportionment process.” App. 180a. However, the district court flatly rejected the notion that a state could defeat a political gerrymandering claim by showing that it created regularly shaped districts consistent with traditional, generally accepted redistricting criteria. Id. 122a.
The Framers of the Constitution recognized it is “essential” that a republican government “be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.” THE FEDERALIST NO. 39, at 194 (Madison) (George W. Carey & James McClellan, eds. 2001). It has been argued that a cause of action for political
7

gerrymandering can protect “the aggregate minority of people in a state” from being “wholly overpowered by the combined action of the numerical majority” and left with a greatly diminished voice in Congress, a state legislature, or other legislative body. 1 CHANCELLOR JAMES KENT, COMMENTARIES 231 n.(c) (12th ed. 1873).
Even if this Court embraces such sentiments, it should reject the district court’s deeply flawed attempt to implement them. Part I explains that a voter has standing to challenge political gerrymandering only of her own district, not the state as a whole. Part II goes on to demonstrate that, should the Court hold that political gerrymandering claims are justiciable, the existence of an actual gerrymander—a bizarrely-shaped district not drawn in accordance with traditional redistricting principles—should be an essential element. Part III outlines the numerous problems with the district court’s heavily reliance on the concept of “efficiency gaps” to determine whether political gerrymandering exists. Finally, Part IV concludes by emphasizing why caution is warranted in defining the scope of what may constitute a political gerrymandering claim, further calling into question the district court’s particularly aggressive holding.
I. RESPONDENTS LACK STANDING TO CHALLENGE WISCONSIN’S ENTIRE LEGISLATIVE MAP
Most basically, the district court exceeded Article III’s justiciability limits by allowing Respondents to
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challenge the composition of Wisconsin’s entire statewide legislative map, rather than solely the districts in which they each live. See App. 57a, 221a22a.
This Court repeatedly has rejected voters’ attempts to challenge alleged gerrymandering of districts in which they do not reside. Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015); Sinkfield v. Kelley, 531 U.S. 28, 30 (2000); United States v. Hays, 515 U.S. 737, 739 (1995). In the context of racial gerrymandering, this Court has held that a plaintiff has standing to challenge his own district’s boundaries because the harms caused by gerrymandering “are personal” to that district’s voters. Ala. Legis. Black Caucus, 135 S. Ct. at 1265. Voters in racially gerrymandered districts have “been denied equal treatment because of the legislature’s reliance on racial criteria” and “may suffer the special representational harms racial classifications can cause in the voting context.” Hays, 515 U.S. at 745; see also Ala. Legis. Black Caucus, 135 S. Ct. at 1265 (noting that voters in a racially gerrymandered district have standing to challenge it because they may be “represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group”) (quotation marks and citations omitted).
A voter, however, can neither “suffer those special harms” nor “personally be[] subjected to a racial classification” based on the composition of other districts in which he does not reside. Hays, 515 U.S. at 745; see also Ala. Legis. Black Caucus, 135 S. Ct. at 1265 (reiterating that the harms of gerrymandering
9

“do not so keenly threaten a voter who lives elsewhere in the State”). Thus, a voter’s standing to challenge his own district does not grant him license to challenge others. Shaw v. Hunt, 517 U.S. 899, 904 (1996); Ala. Legis. Black Caucus, 135 S. Ct. at 1265. A voter even lacks standing to challenge alleged gerrymandering of adjacent districts on the grounds they unavoidably affect the shape of his own. Sinkfield, 531 U.S. at 30 (rejecting argument that “an unconstitutional use of race in drawing the boundaries of majority-minority districts necessarily involves an unconstitutional use of race in drawing boundaries of neighboring majority-white districts”). A plaintiff’s complaints about allegedly unconstitutional gerrymandering in districts in which he does not reside constitutes, at most, a nonjusticiable generalized grievance. Hays, 515 U.S. at 745.
The district court held that these justiciability doctrines are inapplicable because Respondents complain about “the effect of [the] statewide districting map on the ability of Democrats to translate their votes into seats.” App. 224a-25a. The court added that, because “[t]he harm is the result of the entire map” rather than the configuration of a particular district,” any “individual Democrat has standing to assert a challenge to the statewide map.” Id. 225a.
The district court’s standing analysis is flatly contrary to this Court’s precedents and would have pernicious consequences. First, in Alabama Legislative Black Caucus, 135 S. Ct. at 1268, this Court specifically rejected the concept of statewide
10

gerrymandering challenges. It recognized that plaintiffs may allege that “every individual district in a State” suffers from unconstitutional racial gerrymandering. Id. at 1265 (emphasis omitted). In such cases, “neither the use of statewide evidence nor the effort to show widespread effect can transform a racial gerrymandering claim about a set of individual districts”—even a “set” that includes all districts in the state—“into a separate, general claim that the legislature racially gerrymandered the State ‘as’ an undifferentiated ‘whole.’” Id. at 1267; cf. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 418 (2006) (“LULAC”) (plurality op.) (rejecting attempt to mount statewide political gerrymandering claim, in part because “partisan aims did not guide every line [the legislature] drew”). In other words, a claim that a state’s entire legislative map has been unconstitutionally gerrymandered is really a series of independent challenges to the constitutionality of each legislative district within that map. Each such challenge must therefore be brought by a plaintiff with standing to assert it. Though Alabama Legislative Black Caucus arose in the context of racial gerrymandering, this reasoning—as well as this Court’s other precedents concerning standing to challenge alleged gerrymanders—applies with equal force in the context of political gerrymandering.
Second, Respondents’ First Amendment and Equal Protection claims concern the legal effect accorded their votes as a result of Wisconsin’s legislative district map. See App. 35a, 220a. “[A] voter’s franchise is a personal right.” Coleman v. Miller, 307 U.S. 433, 469 (1939); see also Bd. of
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Estimate v. Morris, 489 U.S. 688, 698 (1989). Each Respondent has standing to challenge the undervaluation or dilution of his or her own vote, see Baker v. Carr, 369 U.S. 186, 206 (1962), but not of someone else’s vote (i.e., voters registered in other districts), see Cal. Bankers Ass’n v. Schultz, 416 U.S. 21, 51 (1974) (“[O]ne has standing only to vindicate his own rights.”). The fact that each person’s vote plays a role in determining the partisan composition of a legislative body does not give a plaintiff standing to assert other voters’ rights. While the ability of Respondents’ preferred political party to exercise power in the Wisconsin legislature depends on the results of elections in districts other than their own, Respondents lack a particularized and concrete interest in the conduct and outcome of those other elections. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).
Finally, from a practical perspective, granting plaintiffs standing would lead to unpredictable and deleterious consequences. At a minimum, a plaintiff who does not live in a politically gerrymandered legislative district would be able to challenge the composition of other districts in which he is not registered. Taken to its logical extreme, Respondents’ theory would allow voters in states where political gerrymandering had not occurred to challenge congressional redistricting in other states. Plaintiffs could claim that another state’s redistricting scheme “entrench[ed]” an opposing political party in power in the U.S. House of Representatives and “diminish[ed] the value of the plaintiffs’ votes” by “erecting a barrier that prevents the plaintiffs’ party of choice from
12

commanding a legislative majority” in the House. App. 220a. Such facially untenable interstate voter standing is a direct implication of the district court’s holding.
Thus, while Respondents have standing to challenge the constitutionality of the boundaries of the legislative districts in which they reside, they may not go further and challenge the constitutionality of either other districts, or the legislative map as a whole.
II. AN ACTUAL GERRYMANDER SHOULD BE AN ESSENTIAL ELEMENT OF ANY POLITICAL GERRYMANDERING CLAIM
Perhaps the most fundamental flaw with the district court’s analysis is that it purports to find political gerrymandering in the absence of any gerrymandering at all. As the district court dissent explains, Wisconsin’s redistricting plan “does not violate any of the redistricting principles that traditionally govern the districting process.” App. 250a (Griesbach J., dissenting). “Without gerrymandered districts,” the dissent rightly concludes, “there is no unconstitutional gerrymander.” Id. at 258a.
The district court majority, however, held that “compliance with traditional districting principles” does not “create[] a constitutional ‘safe harbor’ for state legislatures.” Id. at 120a. It insisted, “A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” Id. at 122a.
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Redistricting is the result of “a complex blend of political, economic, regional, and historical considerations.” Wells v. Rockefeller, 394 U.S. 542, 554-55 (1969) (White, J., dissenting). The essence of a gerrymander is an unnecessarily bizarrely shaped district drawn without regard to traditional redistricting criteria. These traditional criteria include promoting compactness of districts, ensuring their physical contiguity, following natural boundaries, preserving the integrity of political subdivisions, and protecting communities of interest. See Vieth, 541 U.S. at 348 (Souter, J., dissenting) (identifying “contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains” as “traditional redistricting principles”); Miller, 515 U.S. at 916 (recognizing the need for legislatures to follow “traditional race-neutral districting principles, including but not limited to compactness, contiguity, [and] respect for political subdivisions or communities defined by actual shared interests”).2
The “gerrymander” derives its name from “an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (‘salamander’) which
2 See also Brown v. Thomson, 462 U.S. 835, 843 (1983) (recognizing a state’s interest in “using counties as representative districts” is “substantial”); Karcher v. Daggett, 462 U.S. 725, 784 (1983) (Powell, J., dissenting) (citing preservation of “geographic and political boundaries” as “plainly . . . relevant to rational reapportionment decisions”); Reynolds v. Sims, 377 U.S. 533, 578 (1964) (recognizing that “provid[ing] for compact districts of contiguous territory” and “maintain[ing] the integrity of various political subdivisions,” are “valid considerations”).
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the outline of an election district he was credited with forming was thought to resemble.” Vieth, 541 U.S. at 274. The State of Alabama’s reconfiguration of the City of Tuskegee “from a square to an uncouth twenty-eight-sided-figure” for the sole purpose of excluding African-American voters is perhaps the quintessential example of gerrymandering. Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960); see also Bandemer, 478 U.S. at 179 (Powell, J., concurring in part and dissenting in part) (concluding legislative map was politically gerrymandered in large part because it resembled a “crazy quilt”).
A regularly shaped district drawn according to traditional, time-honored, judicially approved, substantively defensible redistricting criteria, by definition, is not a gerrymander. See Bush v. Vera, 517 U.S. 952, 963 (1996) (“[T]he neglect of traditional redistricting criteria is . . . necessary” for a gerrymandering claim). In Vieth, Justices Souter and Ginsburg agreed that a plaintiff pursuing a political gerrymandering claim must begin by “show[ing] that the district of his residence paid little or no heed to . . . those traditional redistricting principles whose disregard can be shown straightforwardly . . . .” 541 U.S. at 348 (Souter, J., dissenting). Justice Kennedy’s Vieth concurrence similarly suggested that a cause of action for political gerrymandering should be available when district lines were drawn for reasons “unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring);3 see
3 A legislative map drawn according to traditional redistricting principles is necessarily related to “‘legitimate legislative objectives,’” regardless of whether it happens to favor a
15

also Bandemer, 478 U.S. at 165 (Powell, J., concurring in part and dissenting in part) (emphasizing that a political gerrymandering claim must be resolved “by reference to the configurations of the districts,” the “observance of political subdivision lines,” and other similar criteria).
In Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017), this Court held that a plaintiff is not required to demonstrate that a redistricting plan “conflicts with traditional redistricting criteria” to challenge it under the Equal Protection Clause as impermissibly race-based. The Court acknowledged that departures from such traditional criteria often will accompany, and be important circumstantial evidence of, racially discriminatory redistricting schemes. Id. But it left open the possibility that a voter may “establish racial predominance in the absence of an actual conflict [with traditional redistricting criteria] by presenting direct evidence of the legislative purpose and intent.” Id.; see also Miller, 515 U.S. at 913 (rejecting “suggest[ion] that a district must be bizarre on its face before there is a constitutional violation”).
Despite their label, such “racial gerrymandering” cases are simply applications of the century-old principle that the Fourteenth Amendment generally prohibits states from enacting laws or taking other actions for racially discriminatory purposes. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977); see also Miller, 515 U.S. at 913.
particular political party or less politically advantageous alternatives existed. App. 256a (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring)).
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Because race is a suspect classification, see Shaw v. Reno, 509 U.S. 630, 642-43 (1993), facially neutral laws enacted for race-based reasons are subject to strict scrutiny, see Washington v. Davis, 426 U.S. 229, 244-45 (1976). Even governmental action that would be wholly unobjectionable if performed for raceneutral purposes generally is unconstitutional if performed for racially discriminatory reasons. Compare Richardson v. Ramirez, 418 U.S. 24, 53-55 (1974) (upholding felon disenfranchisement provisions enacted without racially discriminatory purpose), with Hunter v. Underwood, 471 U.S. 222, 233 (1985) (invalidating felon disenfranchisement provision “motivated by a desire to discriminate against blacks on account of race”).
In the context of redistricting, the Equal Protection Clause prohibits a state from using race as the “predominant factor” that motivates its decision “to place a significant number of voters within or without a particular district.” Miller, 515 U.S. at 916; see also Cooper v. Harris, 137 S. Ct. 1455, 1480 (2017) (“The Equal Protection Clause prohibits the unjustified drawing of district lines based on race.”). Such race-based redistricting “threaten[s] to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Shaw, 509 U.S. at 643. It also “reinforces the perception that members of the same racial group . . . think alike, share the same political interests, and will prefer the same candidates at the polls.” Id. at 647. Thus, plaintiffs who challenge redistricting plans on racebased grounds are not necessarily alleging racial gerrymandering per se, but rather invidious racial
17

discrimination, which is unconstitutional regardless of the form it takes—and regardless of whether it amounts to gerrymandering. Cf. id. at 649-50 (“Classifying citizens by race . . . threatens special harms that are not present in our vote-dilution cases”) (emphasis added).
Plaintiffs in political gerrymandering cases are very differently situated. They do not bring their claims as members of a suspect class or “discrete and insular minorit[y].” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Their party affiliation is not an “immutable characteristic.” Vieth, 541 U.S. at 287. The gravamen of the harm such plaintiffs claim to suffer is not stigmatization, reinforcement of negative stereotypes, or a dignitary offense, but rather diluted influence in the state legislature. See App. 220a.
Unlike race, mere consideration of party membership does not trigger heightened constitutional scrutiny. Many federal statutes expressly classify based on party membership in a way that would be constitutionally and morally intolerable along racial lines. See, e.g., 52 U.S.C. § 20923(c)(1) (specifying “the chair and vice chair” of the Election Assistance Commission “may not be affiliated with the same political party”); id. § 30106(a)(1) (“No more than 3 members of the [Federal Election] Commission . . . may be affiliated with the same political party.”).
And this Court repeatedly has recognized that states may properly consider partisan concerns, at least to some extent, when redistricting. See, e.g., App. 113a (citing cases); Miller, 515 U.S. at 914
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(noting that redistricting typically “implicates a political calculus,” requiring numerous balances and tradeoffs among “various interests”); Bandemer, 478 U.S. at 128 (rejecting proposition that taking “any political consideration[] . . . into account in fashioning a reapportionment plan is sufficient to invalidate it,” because “[p]olitics and political considerations are inseparable from districting and apportionment”) (quotation marks omitted); cf. N.Y. State Board of Elections v. Lopez Torres, 552 U.S. 196, 205 (2008) (stating that “‘smoke-filled rooms’ . . . have long been an accepted manner of selecting party candidates”).
In short, this Court’s precedents do not “compel[] the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny.” Shaw, 509 U.S. at 650. To the contrary, our nation’s “long and persistent history of racial discrimination in voting,” as well as “Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race . . . would seem to compel the opposite conclusion.” Id.; see also Bandemer, 478 U.S. at 125 (“That the characteristics of the complaining group are not immutable or that the group has not been subject to the same historical stigma may be relevant to the manner in which the case is adjudicated . . . .”).
While actual gerrymandering is not a necessary element of a racial discrimination claim under the Equal Protection Clause, Bethune-Hill, 137 S. Ct. at 799, it should be an essential component of a political gerrymandering claim, to the extent this Court chooses to fashion one, cf. Bush, 517 U.S. at 980-81
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(recognizing that “the bizarre shaping of [d]istricts” and indifference to “natural or traditional divisions” is not merely evidence of a gerrymander, but itself is “part of the constitutional problem”). Accordingly, districts drawn in accord with traditional redistricting principles should not be susceptible to political gerrymandering challenges.
This Court has repeatedly recognized the importance and legitimacy of these traditional districting principles. Easley v. Cromartie, 532 U.S. 234, 258 (2001); see also Miller, 515 U.S. at 916. Geographic compactness, for example, facilitates “political organization, electoral campaigning, and constituent representation.” Karcher, 462 U.S. at 756 (Stevens, J., concurring). Maintaining pre-existing political boundaries is similarly important, especially for state legislative redistricting, because “[l]ocal governmental entities are frequently charged with various responsibilities incident to the operation of state government.” Reynolds, 377 U.S. at 580; see also Brown, 462 U.S. at 843 (recognizing the state’s “substantial and legitimate . . . concern[]” in preserving county boundaries”). Moreover, many state laws constitute “local legislation, directed only to the concerns of particular political subdivisions.” Reynolds, 377 U.S. at 580-81. Additionally, “[r]esidents of political units such as townships, cities, and counties often develop a community of interest, particularly when the subdivision plays an important role in the provision of governmental services.” Karcher, 462 U.S. at 758 (Stevens, J., concurring); see also Abate v. Mundt, 403 U.S. 182, 185 (1971). In Mahan v. Howell, 410 U.S. 315, 325, 329 (1973), this
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Court held that “maintaining the integrity of political subdivision lines” for counties and cities was sufficiently important to allow population deviations among districts exceeding 15%.
Far from contributing to political gerrymandering, traditional redistricting criteria mitigate against it. See Reynolds, 377 U.S. at 578-59 (“Indiscriminate districting, without regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.”); see also id. at 581 (reiterating that “construct[ing] districts along political subdivision lines . . . deter[s] the possibilities of gerrymandering”); Karcher, 462 U.S. at 758 (Stevens, J., concurring) (“Extensive deviation from established political boundaries is another possible basis for a prima facie showing of gerrymandering.”). Indeed, in Connor v. Finch, 431 U.S. 407, 425-26 (1977), this Court ordered the district court to “draw legislative districts that are reasonably contiguous and compact, so as to put to rest suspicions” about potential gerrymandering. The district court’s approach below, in contrast, leads to the bizarre conclusion that a state may be forced to draw or adopt an actually gerrymandered map featuring convoluted districts that split apart towns or connect distant regions in order to secure the “correct” number of seats in the legislature for each political party and eliminate purported constitutional problems with a map, such as Wisconsin’s, that accords with traditional redistricting criteria.
In light of this Court’s longstanding recognition of traditional redistricting principles as bulwarks
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against political gerrymandering, this Court should require a substantial violation or abandonment of such principles before entertaining such claims. See Vieth, 541 U.S. at 348 (Souter, J., dissenting); see also id. at 307 (Kennedy, J., concurring); Bandemer, 478 U.S. at 165 (Powell, J., concurring in part and dissenting in part).
III. THE DISTRICT COURT’S PROPOSED STANDARD FOR POLITICAL GERRYMANDERING CLAIMS IS IMPROPER DUE TO ITS HEAVY RELIANCE ON THE “EFFICIENCY GAP”
This Court should also reject the district court’s proposed formulation of a political gerrymandering standard due to its heavy reliance on the concept of the “efficiency gap” to demonstrate that Respondents’ “representational rights have been burdened.” App. 159a, see also id. at 176a-77a; cf. id. 234a (Griesbach, J., dissenting) (labeling the efficiency gap “the center piece” of Respondents’ case).
Nearly a half-century ago, this Court declared, “Neither courts nor legislatures are furnished any specialized calipers that enable them to extract from the general language of the Equal Protection Clause of the Fourteenth Amendment the mathematical formula that establishes what range of possible deviations is permissible, and what is not.” Mahan, 410 U.S. at 329. The efficiency gap is Respondents’ flawed retort.
To calculate an efficiency gap, a court begins by separately tallying the total number of purportedly
22

“wasted votes” each political party received in

legislative races throughout the state in the previous

election. App. 160a. A vote is deemed “wasted” if it

was cast for either a losing candidate, or a winning

candidate but was unnecessary because it exceeded

the “50% plus one votes necessary to secure the

candidate’s victory.” Id. The efficiency gap is “the

difference between the wasted votes cast for each

party, divided by the overall number of votes cast in

the election.” Id.

Thus, the efficiency gap is a comparative

measure of votes the court chooses to designate as

“wasted,” in the sense they neither led to, nor were

necessary for, an electoral success. App. 160a n.274.

A party with a favorable efficiency gap can “translate,

with greater ease, its share of the total votes cast in

an election into legislative seats.” App. 161a. The

district court added that the efficiency gap is also “a

measure of the proportion of ‘excess’ seats that a party

secured in an election beyond what the party would

be expected to obtain with a given share of the vote.”

Id.

The district court concluded that a substantial

efficiency gap is persuasive evidence of political

gerrymandering. App. 159a, 165a. The fact that

Wisconsin’s legislative map resulted in a pro-

Republican efficiency gap of approximately 10% or

more

bolstered

Respondents’

political

gerrymandering claim. App. 162a-64a.

As demonstrated below, the efficiency gap is

simply a mechanism for compelling proportional

representation for political parties, which this Court

repeatedly has held is not constitutionally required.

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Furthermore, the conception of voters and elections upon which the efficiency gap is based flies in the face of this Court’s First Amendment jurisprudence across a wide range of areas. U.S. CONST. amend. I.
A. The District Court’s Proposed Standard Effectively Requires Proportional Representation
Perhaps the most fatal flaw in the concept of the efficiency gap is that it is simply a measure of proportional representation. See App. 236a (Griesbach J., dissenting). As the district court dissent explains, a large efficiency gap means that the number of seats won by a political party’s candidates was “disproportionately small compared to their statewide vote totals.” Id. at 270a (Griesbach, J., dissenting).
This Court repeatedly has emphasized that the Constitution does not require states or other political subdivisions to afford proportional representation in legislative bodies, “however phrased,” Mobile, 446 U.S. at 79, to political, social, or other interest groups. See id. at 75-76, 78 (“The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization. . . . [P]olitical groups [do not] themselves have an independent constitutional claim to representation . . . .”); LULAC, 548 U.S. at 419 (plurality op.) (“[T]here is no constitutional requirement of proportional representation . . . .”);
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Chapman v. Meier, 420 U.S. 1, 17 (1975).4 A group is not constitutionally entitled to a districting scheme that will afford it “legislative seats in proportion to its voting potential.” White v. Regester, 412 U.S. 755, 765-66 (1973).
Bandemer emphasized that the Constitution requires neither “proportional representation [nor] that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” 478 U.S. at 130 (plurality op.). And, despite Vieth’s repudiation of Bandemer, it nevertheless reaffirmed that the Constitution “nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.” Vieth, 541 U.S. at 288 (plurality op.).
In Gaffney v. Cummings, 412 U.S. 735, 754 (1973), this Court affirmed a state’s power to voluntarily choose to “allocate political power to [its political]
4 This principle parallels the Court’s recognition that it would be affirmatively unconstitutional to attempt to manufacture proportional representation of racial, ethnic, or other social groups in the other main representative body the Constitution requires both states and the federal Government to convene: juries. See U.S. CONST. amend. VI; Cassell v. Texas, 339 U.S. 282, 287 (1950) (holding that, because the Equal Protection Clause prohibits racial discrimination, “proportional limitation” of grand jurors based on race “is not permissible”); cf. Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (holding that, while petit juries must be drawn from a source fairly representative of the community,” the Constitution does not require that each jury “mirror the community and reflect the various distinctive groups in the population”).
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parties in accordance with their voting strength.” Despite its endorsement of state discretion to pursue proportionality, however, this Court never suggested such a goal is constitutionally required.
The district court itself inadvertently demonstrated that an efficiency gap is simply a stylized measure of a state’s deviation from proportional representation. The court explained that the efficiency gap “measures the magnitude of a [redistricting] plan’s deviation from the relationship we would expect to observe” between the aggregate number of votes a party’s candidates for legislature receive across all legislative elections in the state, and the number of “seats” in the legislature that party’s candidates win. App. 169a (emphasis added). Thus, the court expressly established proportional representation as the “expect[ed]” constitutional baseline, and deviations from that constitutional ideal as requiring ever-greater justification. Id.; see also id. at 273a (Griesbach, J., dissenting) (“[T]he notion that we would ‘expect’ a given number of seats required imputing the normative judgment that a party’s seats won must be proportional to the party’s statewide vote totals.”). Despite the district court’s protestations to the contrary, see App. 167a, the efficiency gap is essentially a measure of proportionality, which this Court held is not constitutionally required.
Indeed, the district court’s efficiency gap analysis is a variation on the argument this Court rejected in Whitcomb, 403 U.S. at 153. In that case, inner-city residents complained that Marion County’s multimember state legislative district systematically
26

precluded them from electing ideologically sympathetic representatives to the state legislature. Rejecting their claim, this Court explained that, in a typical legislative election:
[a]rguably the losing candidates’ supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. . . . But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those socalled “safe” districts where the same party wins year after year.
Id. at 153 (emphasis added); see also id. at 154-55 (declining to recognize a constitutional claim where a certain group “has found itself outvoted and without legislative seats of its own,” so long as its members are not “being denied access to the political system”). The Court rejected the notion “that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a singlemember district.” Id. at 156.
Likewise, in Connor, 431 U.S. at 428 (Blackmun, J., concurring), Justice Blackmun reiterated that our system of “direct territorial representation by singlemember districts . . . . does not normally provide electoral minorities with proportional representation in the legislature.” A group’s ability to win seats
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depends on “a number of factors,” including not only its size, but “its geographic dispersion” and “the size of legislative districts.” Id.; see also Bandemer, 478 U.S. at 130.
In short, the efficiency gap’s designation of plaintiffs’ votes as wasted “seems a mere euphemism for political defeat at the polls.” Whitcomb, 403 U.S. at 153. Because the district court’s strong reliance on the efficiency gap makes lack of proportionality a key component of a political gerrymandering claim, this Court should jettison its entire approach.
B. The Statewide Efficiency Gap Concept Is Inconsistent With This Court’s First Amendment Jurisprudence
Another fundamental problem with the efficiency gap is that the model of voters and voting behavior upon which it is based runs directly contrary to this Court’s First Amendment jurisprudence across a variety of areas. The efficiency gap purports to measure statewide political gerrymandering by aggregating supposedly “wasted” votes from all legislative elections throughout the state. The implicit assumption behind this calculation is that most voters are fungible party automatons who would continue to vote for candidates from a particular party in election after election, regardless of the district in which they are placed, the identities of the candidates running, the parties’ platforms, the major issues in the election, or any other such circumstances. See App. 242a (Griesbach, J., dissenting). Without this
28

dubious assumption, the efficiency gap’s statewide aggregates have virtually no relevance. See id. at 236a (Griesbach, J., dissenting) (pointing out that the efficiency gap “presupposes that voters are voting for a statewide party rather than simply for an individual candidate”).
The Constitution does not require courts or states to treat voters as deterministic interchangeable commodities in this manner. To the contrary, this Court’s First Amendment jurisprudence is based on the fundamental principles that voters are capable of engaging in, and being persuaded by, political discourse; political parties’ candidates and messages are crucial determinants of electoral outcomes; and a vote cast for a voter’s preferred candidate is not “wasted,” regardless of whether it contributes to electoral success.
1. Political communications cases— “[P]olitical speech in the course of elections” is “the speech upon which democracy depends.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 405 (2000) (Kennedy, J., dissenting). This Court repeatedly has held that “a major purpose” of the First Amendment is to “protect the free discussion of government affairs,” including “discussions of candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (“[D]ebate on public issues should be uninhibited, robust, and wide-open,” even if it includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”).
29

Political debate is so important that this Court has struck down virtually all restrictions on independent expenditures that fund political communications. See Buckley v. Valeo, 424 U.S. 1, 51 (1976) (per curiam) (invalidating expenditure limits for individuals); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 614 (1996) (same for political parties); FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496 (1985) (same for PACs); Citizens United v. FEC, 558 U.S. 310, 365 (2010) (same for corporations). This Court has repeatedly afforded such robust protection to political speech and debate precisely because “the ability of the citizenry to make informed choices among candidates for office is essential.” Buckley, 424 U.S. at 14-15; accord Citizens United, 558 U.S. at 339. In short, this Court’s political speech jurisprudence is based on the bedrock premise that political debate—candidates’ communications with voters and voters’ interactions with each other—plays a critical role in shaping electoral outcomes. The efficiency gap’s reductionist view of voters, in contrast, assumes that public debate of the candidates and issues pales before the true determinant of voter behavior: party preference.
2. Party nomination cases—Another line of First Amendment cases protects political parties’ fundamental right of association in the selection of nominees for office. See Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989). Political parties have a First Amendment right to “choose a candidate-selection process that will in its view produce the nominee who
30

best represents its political platform.” Lopez-Torres, 552 U.S. at 202. Courts are greatly circumscribed in their ability to intervene in a party’s candidate selection process. O’Brien v. Brown, 409 U.S. 1, 4 (1972) (per curiam); accord Cousins v. Wigoda, 419 U.S. 477, 491 (1975); see also Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 124 (1981).
One of the main reasons why the Constitution affords such stringent protection to political parties’ associational rights is the Court’s recognition that each political party’s choice of candidates and platform is a key determinant of electoral outcomes. See Cal. Democratic Party v. Jones, 530 U.S. 567, 579 (2000) (“[B]eing saddled with an unwanted, and possibly antithetical, nominee would . . . severely transform [the party].”); see also Eu, 489 U.S. at 231 n.21. A party’s nominee is its “ambassador to the general electorate in winning it over to the party’s views” on “the most significant public policy issues of the day.” Jones, 530 U.S. at 575; see also Eu, 489 U.S. at 224 (recognizing the importance of a party’s decision to “select[] a standard bearer who best represents the party’s ideologies and preferences” (quotation marks omitted)); Cousins, 419 U.S. at 489 (recognizing that selection of a party’s presidential nominee is “a task of supreme importance to every citizen in the Nation”).
The efficiency gap, in contrast, treats a party’s nominees and platform as largely irrelevant. Based on past votes, a person is expected to mechanically vote for the same party in the future, regardless of these intra-party processes that the Court regards as
31

integral to electoral outcomes. Cf. Tashjian v. Republican Party, 479 U.S. 208, 216 (1986) (recognizing the candidate nomination process as the “crucial juncture at which the [party’s] appeal to common principles may be translated into concerted action, and hence to political power in the community”). Yet again, the assumptions underlying the efficiency gap are inconsistent with this Court’s precedents.
3. Minor party rights cases—Finally, the efficiency gap’s conception of “wasted votes,” which are to be minimized or avoided, is inconsistent with this Court’s caselaw concerning the rights of minor parties. Though a state’s interests, such as conducting orderly elections and preventing ballots from becoming unwieldy, are often sufficient to justify restrictions that burden minor parties’ rights, see Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367, 369-70 (1997), this Court has subjected laws that impose especially burdensome or unjustifiably discriminatory ballot-access requirements on minor parties to strict scrutiny. See Anderson v. Celebrezze, 460 U.S. 780, 793-94 (1983); Williams v. Rhodes, 393 U.S. 23, 31 (1968). Under the efficiency gap’s conception of voting, however, far from protecting the right to vote, this line of cases undermines it by creating new opportunities for people to “waste” their votes on minor parties that are unlikely to seize control of a legislative chamber.
Thus, the efficiency gap model which lies at the heart of Respondents’ case, and which formed a substantial component of the district court’s
32

reasoning, is an impermissible proxy for proportional representation and runs directly contrary to this Court’s First Amendment jurisprudence throughout the rest of election law. This Court should therefore reject the district court’s approach to identifying impermissible political gerrymandering.
IV. CAUTION IS WARRANTED IN DEFINING THE SCOPE OF A POLITICAL GERRYMANDERING CAUSE OF ACTION
A final deficiency in the district court’s conception of political gerrymandering is that it is simply too sweeping and aggressive. It places primary weight on proportional representation of political parties, substantially undervalues the importance of traditional redistricting criteria, and invites constant inquiries into legislators’ subjective intentions to root out a desire for partisan advantage.
Creating such a broad cause of action for political gerrymandering would allow Congress to assert far greater authority to regulate state and local elections under § 5 of the Fourteenth Amendment, fundamentally changing the balance of power between the federal government and states. It would open the door to congressional attempts to manipulate the outcomes of state and local elections, ostensibly as a prophylactic measure to protect against potential political gerrymandering by preventing such elections from reaching the “wrong” partisan results.
Additionally, the severe remedies for violations of the right to vote set forth in § 2 of the Fourteenth
33

Amendment strongly suggest the Court should be reluctant to recognize the broad right against political gerrymandering advocated by Respondents and adopted by the district court.
A. Congress Would Have Power Under § 5 of the Fourteenth Amendment to Enforce Any Rights Against Political Gerrymandering
Any cause of action for political gerrymandering this Court creates will be subject to congressional enforcement under § 5 of the Fourteenth Amendment. U.S. CONST. amend. XIV, § 5. Section 5 allows Congress to enact laws to “deter[] or remed[y] constitutional violations . . . even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the states.’” City of Boerne v. Flores, 521 U.S. 507, 518 (1997) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)). Congress has “wide latitude” in exercising this power, so long as there is a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id. at 520.; cf. Katzenbach v. Morgan, 384 U.S. 641, 649-50 (1966) (holding that § 5 grants Congress “the same broad powers expressed in the Necessary and Proper Clause” to enact any legislation it deems “appropriate” to protect the right to vote).5
5 This Court has yet to expressly resolve the tension between Boerne, 521 U.S. at 518, and Katzenbach, 384 U.S. at 649-50,
34

While the Constitution grants Congress virtually plenary power over federal elections, its authority over elections for state and local offices is limited to the Spending Clause and § 5 of the Fourteenth Amendment. See Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 NW. U. L. REV. ONLINE 103, 105-10 (2017). The broader the scope of a right against political gerrymandering this Court recognizes, the more power Congress will claim to “enforce” that right for federal, state, and local elections under § 5. For example, if this Court adopts an intent requirement as part of a political gerrymandering claim, see, e.g. Mobile, 446 U.S. at 6264 (construing § 2 of the Voting Rights Act to prohibit intentional racial discrimination that violates the Constitution), Congress may assert authority to enact a statute dispensing with it under § 5, see Voting Rights Amendments Act of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134 (June 29, 1982) (codified at 52 U.S.C. § 10301) (amending Voting Rights Act to eliminate intent requirement and prohibit certain disparate racial impacts that do not necessarily violate the Constitution). Likewise, even if this Court continues to reject the need for proportionality between vote totals and legislative seats, Congress may assert power to require it for elections at all levels as a “preventive” measure. Boerne, 521 U.S. at 526.
This Court should refrain from defining a right against political gerrymandering in a way that would
concerning the scope of Congress’ remedial authority over voting rights.
35

substantially disturb the delicate balance between the federal government and the states by allowing Congress to claim broad power to reshape state and local electoral districts in the name of partisan balancing, fairness, proportionality, or other such asserted goals. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. . . . Congressional interference . . . would upset the usual constitutional balance of federal and state powers.”). One way of reasonably cabining Congress’ § 5 power is to clarify that an actual gerrymander—the creation of one or more bizarrely shaped districts crafted in disregard of traditional redistricting criteria—is an unalterable perquisite of a political gerrymandering claim. See supra Part II. A broad or ill-defined standard for political gerrymandering, in contrast, would leave the door open to partisan congressional manipulation of state and local races in the guise of political equity.
B. Section 2 of the Fourteenth Amendment Suggests a High Threshold for Denials of the Right to Vote Due to Political Gerrymandering
Finally, as the district court acknowledged, Respondents’ First Amendment claim is inextricably intertwined with the Fourteenth Amendment right to vote. See App. 101a-06a (discussing the close relationship between the First Amendment and
36

voting rights in this Court’s seminal cases) (citing, inter alia, Anderson, 460 U.S. at 786-87 n.7, 789; Williams, 393 U.S. at 30-31). Section 2 of the Fourteenth Amendment, which contains the Constitution’s only express mention of an affirmative right to vote, counsels against a broad conception of a right against political gerrymandering.
Section 2 (as modified by the Nineteenth and Twenty-Sixth Amendments) provides that, when a state “denie[s] . . . or in any way abridge[s]” the “right to vote” in elections for specified federal or state offices to any U.S. citizens who are at least 18 and have not been disenfranchised for committing a felony, that state’s basis of representation in the U.S. House of Representatives (and, by extension, the Electoral College) “shall be” proportionately reduced. U.S. CONST. amend. XIV, § 2. If a legislative map is a political gerrymander that violates the right to vote of some fraction of a state’s population, § 2 of the Fourteenth Amendment authorizes Congress to reduce the size of that state’s congressional delegation.
The “extraordinary magnitude” of this penalty “provide[s] important insight into the scope of the constitutional right to vote.” Michael T. Morley, Remedial Equilibration and the Right to Vote Under Section 2 of the Fourteenth Amendment, 2015 U. CHI. LEGAL F. 279, 291, 295. While reduction in representation may not be the only recourse available for violations of the right to vote, it is illuminating to consider as “the only remedy mentioned in the [Fourteenth Amendment’s] text or discussed in the debates over [its] framing. . . . The fact that reduction
37

in representation was authorized as a remedy . . . should guide courts in determining the contours and scope” of the underlying right. Id. at 296, 298. Its severity “strongly implies” that the right to vote protects against “acts that are sufficiently serious to warrant” such “extreme relief.” Id. at 297; see also Daryl Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 885 (1999). Accordingly, should this Court recognize a cause of action for political gerrymandering, it should require—at the very least—an abandonment of traditional redistricting criteria for the purpose of disenfranchising or dramatically diluting the voting power of certain voters.
CONCLUSION For these reasons, this Court should reverse the judgment of the U.S. District Court for the Western District of Wisconsin.
38

Respectfully submitted, MICHAEL T. MORLEY
Counsel of Record 223 Pawnee Road Cranford, N.J. 07016 (860) 778-3883 michaelmorleyesq@
hotmail.com JOHN R. PHILLIPPE, JR. DALTON L. OLDHAM Republican National
Committee 310 First Street, S.E. Washington, D.C. 20003 (202) 863-8500 Counsel for Amicus Curiae Republican National Committee AUGUST 2017
39

 
 No. 16-1161
IN THE
Supreme Court of the United States
_________
BEVERLY R. GILL, ET AL., Appellants, v.
WILLIAM WHITFORD, ET AL., Appellees. _________
On Appeal from the United States District Court for the Western District of Wisconsin
_________
BRIEF OF AMICI CURIAE JUDICIAL WATCH, INC. AND ALLIED EDUCATIONAL FOUNDATION IN SUPPORT OF APPELLANTS
_________
Robert D. Popper Counsel of Record
Chris Fedeli Lauren M. Burke Eric W. Lee JUDICIAL WATCH, INC. 425 Third Street SW Washington, DC 20024 (202) 646-5172 rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: August 3, 2017
LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ii
INTERESTS OF THE AMICI CURIAE .....................1
SUMMARY OF ARGUMENT.....................................2
ARGUMENT ...............................................................4
I. The Shape and Location of the “S” Curve That is Central to the Efficiency Gap Theory Is an Unsettled Empirical Question. .........................................6
II. The Efficiency Gap Is a Poor Tool for Identifying Partisan Gerrymandering. ............................................13
CONCLUSION ..........................................................16

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Davis v. Bandemer, 478 U.S. 109 (1986)..............4, 15

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)...............................................6

Parrott v. Lamone, 2016 U.S. Dist. LEXIS 112736 (D. Md. Aug. 24, 2016), appeal dismissed, 137 S. Ct. 654 (2017) ..............2

Vieth v. Jubelirer, 541 U.S. 267 (2004) ......................4

Other Authorities

Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard against Partisan Gerrymandering, 9 YALE L. & POL’Y REV. 301 (1991) ...............6, 7, 9

Edward R. Tufte, The Relationship between Seats and Votes in Two-Party Systems, 67 AM. POL. SCI. REV. 540 (1973)................8, 9, 10

Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 AM. POL. SCI. REV. 1251 (1987)..........7, 8, 9, 10

iii
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831 (2015) ...............................5
Philip A. Schrodt, A Statistical Study of the Cube Law in Five Electoral Systems, 7 POL. METHODOLOGY 31 (1981) ...........................9
Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CAL. L. REV. 273 (2011)..................................14
Wendy K. Tam Cho, Measuring Partisan Fairness: How Well Does the Efficiency Gap Guard Against Sophisticated as Well as Simple-Minded Modes of Partisan Discrimination, 166 U. PA. L. REV. ONLINE 17 (2017), https://goo.gl/mHTRQF....................................... 12

1
INTERESTS OF THE AMICI CURIAE1
Judicial Watch, Inc. (“Judicial Watch”) is a nonpartisan, nonprofit § 501(c)(3) educational foundation that seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law. Judicial Watch regularly files amicus curiae briefs as a means to advance its public interest mission and has appeared as amicus curiae in this Court on a number of occasions.
The Allied Educational Foundation (“AEF”) is a 501(c)(3) nonprofit charitable and educational foundation based in Englewood, New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study. AEF regularly files amicus curiae briefs as a means to advance its purpose and has appeared as an amicus curiae in this Court on a number of occasions.
In this case, a divided panel of the U.S. District Court for the Western District of Wisconsin found an unconstitutional partisan gerrymander, relying in part on what amici believe to be a fatally flawed theory about how to identify such gerrymanders. As explained herein, a central component of Appellees’ “efficiency gap” analysis is indeterminate, and the use of this approach would lead courts to invalidate redistricting plans where no undue partisan
1 Amici state that no counsel for a party to this case authored this brief in whole or in part; and no person or entity, other than amici and their counsel, made a monetary contribution intended to fund the preparation and submission of this brief. The parties have consented to the filing of amicus briefs in this case.

2
advantage is apparent. Further, Appellees’ approach is a poor indicator of partisan gerrymandering. Properly understood, it is simply a mechanism for guaranteeing proportional partisan results. At the same time, Appellees’ standard ignores violations of traditional districting criteria like compactness, contiguity, and respect for established political boundaries, which are the true hallmarks of partisan gerrymandering.
Amici are experts in the important political and constitutional questions concerning partisan gerrymandering that are raised by the District Court’s decision. Amici believe, moreover, that partisan gerrymandering gives rise to a justiciable, constitutional claim, and they have argued for their own standard based on violations of traditional districting criteria. See Parrott v. Lamone, 2016 U.S. Dist. LEXIS 112736 (D. Md. Aug. 24, 2016), appeal dismissed, 137 S. Ct. 654 (2017).
Appellees, however, are using the wrong theory and are measuring the wrong thing. Their proposed standard would exacerbate rather than resolve the difficult issues posed by partisan gerrymandering.
SUMMARY OF ARGUMENT
Appellees argued in the District Court that an “efficiency gap” analysis based on the concept of “wasted” votes was the proper method to identify unconstitutional partisan gerrymandering. While not adopting all of Appellees’ analysis on this point, the District Court’s majority accepted it as “evidence” of

3
partisan gerrymandering. Accordingly, in order to best assist the Court in considering this appeal, amici will address the single issue of the usefulness of Appellees’ “efficiency gap” standard in identifying partisan gerrymanders.
Appellees’ approach depends on one’s ability to determine the rate at which votes would be translated into legislative seats in a fair (un-gerrymandered) world. The “efficiency gap” is then computed by comparing the actual rate of “wasted” votes to such a hypothetical ideal. If the rate of translation is not known, or if it may not accurately and particularly be determined, Appellees’ theory is simply unworkable.
The mathematical tool for predicting the fair translation of votes to seats in single-member districts is the “S” curve, which is derived in turn from a formula known as the “cube law of politics.” But a critical value in this formula – the exponent from which it derives its name – is determined empirically, and real-world estimates of that value from particular electoral systems and in particular elections vary a great deal. Indeed, the graphs accompanying the complaint in this action contain anomalies which suggest that Appellees do not know the correct value of that exponent. Because Appellees cannot accurately determine the shape of their “S” curve, they cannot compare it to any actual rate of “wasted” votes or hope to use it to identify partisan gerrymanders.
More generally, the “efficiency gap” approach is flawed because it looks at the wrong indicators of

4
partisan gerrymandering and ignores the right ones. Its use would import a new proportionality requirement into the constitutional law of redistricting. It gives undue weight to the outcomes of close elections, which may have nothing to do with gerrymandering. Meanwhile, it fails to see the violations of traditional districting criteria that have always been recognized as the distinctive marks of partisan gerrymandering.
ARGUMENT
In Davis v. Bandemer, 478 U.S. 109 (1986), the Court first held that a claim that a political gerrymander violated the Constitution was, in principle, justiciable. In the three decades following that decision, however, no majority of the Court has ever agreed upon the proper standard for identifying and adjudicating such a claim. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion) (“no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged”).
In their arguments before the District Court, Appellees claimed to have found the elusive standard that would allow courts to adjudicate claims of partisan gerrymandering: the “efficiency gap.” This standard is based on the concept of “wasted votes,” which are defined as all votes cast either (1) for a losing candidate, or (2) for a winning candidate who already had the bare majority of votes necessary to win. The efficiency gap is simply a comparison between parties’ wasted votes. Specifically, it is “the

5
difference between the parties’ respective wasted votes, divided by the total number of votes cast in the election.”2 It is postulated that an efficiency gap favoring one party indicates partisan gerrymandering.3
The majority opinion of the District stated that it was not adopting Appellees’ theory as a sufficient test for partisan gerrymandering, asserting that “we have not determined that a particular measure of EG [efficiency gap] establishes presumptive unconstitutionality.” J.S. App. 176a. The District Court held nonetheless “that, on the facts before us, the EG is corroborative evidence of an aggressive partisan gerrymander.” Id. Regardless of the District Court’s disclaimer, Appellees are likely to reargue their theory of the efficiency gap in their merits brief.
The sole focus of this amicus brief will be to show that the efficiency gap is not reliable, either as a standalone test for partisan gerrymandering or as “corroborative evidence” that it has occurred. This is because a critical value that must be known, and must be stable, for the theory to be workable in practice has not been empirically established. Unless and until this value is known with certainty, any attempt to apply the efficiency gap will yield only arbitrary and meaningless results. The Court should
2 Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 851 (2015).
3 Id. at 852 (“we believe the gap is the essence of what critics have in mind when they refer to partisan gerrymandering.”).

6
not rely on the theory in this case, let alone as a basis for fundamentally remaking the law of partisan districting. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 159 (1999) (Scalia, J., concurring) (courts must seek to exclude “expertise that is fausse and science that is junky”).
I. The Shape and Location of the “S” Curve That is Central to the Efficiency Gap Theory Is an Unsettled Empirical Question.
Anyone attempting to compare the wasted votes of two political parties in a particular jurisdiction in order to determine the “efficiency gap” immediately has to address a difficult question: How much of the observed gap between the wasted votes of the majority and the minority parties is to be expected in a single-member district system like ours, and how much is due to partisan self-dealing?
After all, it is not the case that any deviation from the strict proportional representation of voters by party is suspicious. For example, it is not ordinarily expected that a party commanding 55% of the votes will obtain 55% of the available legislative seats, or that a party garnering 70% of the votes will earn 70% of the seats, and so on. Rather, it has long been known that the single-member district system used in the United States confers a “victory bonus” on majority parties, which bonus increases as the size of the majority increases.4 To be clear, this bonus is not
4 See Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard against

7
attributable to partisan manipulation, but is an observed, structural feature of our electoral system. Thus, it is important to find a way to quantify the expected victory bonus, so as to isolate it from other, partisan considerations.5
Theoretical models attempting to quantify this natural bonus rely on a “curve which correlates the pro-majority bias to the size of the majority.”6 The formula for this curve operates by raising the ratio of partisan votes to a particular exponent, in order to calculate a projected ratio of legislative victories. Because the exponent most often used is three, the formula has been dubbed the “cube law of politics.”7 This formula produces an “S”-shaped curve showing the expected correlation between any percentage of votes cast for a party in a general election, and the
Partisan Gerrymandering, 9 YALE L. & POL’Y REV. 301, 312 (1991) (“As has long been recognized,” a single-member district system “inflates the majority party’s influence in the legislature beyond what its popular support warrants,” in a way that varies based on “the size of its margin of victory.”).
5 See Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 AM. POL. SCI. REV. 1251, 1266 (1987) (noting that the fact that a party received “55% of the votes and 75% of the seats” may indicate either “severe partisan bias or a fair system with majoritarian representation”).
6 Polsby & Popper, supra note 4, at 312 n. 52.
7 Id.

8
related percentage of seats it should expect to obtain in a legislative body.8
In the District Court in this case, Appellees’ experts relied on just such an “S” curve to try to distinguish partisan self-dealing presumably associated with gerrymandering from the ordinary victory bonus naturally achieved by electoral majorities in single-member districts. An expert report specifically addressing this issue was filed as an exhibit to the initial complaint. See Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan, Whitford v. Nichol, No. 15-cv-421-bbc (W.D. Wis. Jan. 25, 2016), Joint Appendix Vol. II, at SA189 n. 1 (applying standard formula with three as the exponent) and SA190 (graph of the resulting “S” curve).
As Appellees’ report necessarily admits, the use of an exponent of three is not theoretically required. It is instead an approximation of available empirical data. SA189 n. 1 (the “Cube Law” is “an approximation for the lack of proportionality we observe in single-member district systems, though hardly a ‘law.’”); see King & Browning, supra note 5, at 1258 and passim (at best the cube law is a probabilistic, empirical finding, not a deterministic law). But this very fact – namely, that the cube law
8 See, e.g., Edward R. Tufte, The Relationship between Seats and Votes in Two-Party Systems, 67 AM. POL. SCI. REV. 540, 54445 (1973) (deriving an “S” curve); J.S. App. 42a n. 111 (“the ‘S’ curves give a visual depiction of how each party’s vote share . . . relates to the number of Assembly seats that party likely will secure”).

9
and the particular “S” curve derived from it are empirical rather than a priori conclusions – suggests why they are the wrong tools to accomplish the wideranging redistricting revolution Appellees hope to achieve.
The simple fact is that the value of the crucial exponent has not been empirically established, either as a general matter or in particular cases. See Polsby & Popper, supra note 4, at 312 n. 52 (“actual electoral systems vary widely, and index results ranging from 0.71 to 4.4 have been obtained”); King & Browning, supra note 5, at 1260 (“a number of studies have shown that [the exponent] is not equal to 3,” although “most find that [it] falls between 2 and 4”); Philip A. Schrodt, A Statistical Study of the Cube Law in Five Electoral Systems, 7 POL. METHODOLOGY 31, 33 (1981) (“even a cursory examination of election statistics shows that [the cube law] does not hold perfectly. . . . Even in Great Britain, where the cube law originated, [the exponent] can vary by as much as -.637 (1951) to 4.233 (1955) between a single pair of consecutive elections.”); Tufte, supra note 8, at 544-45 (disputing empirical basis of cube law); id. at 546 (denying that cube law applies to certain electoral systems and maintaining that “[i]f one wants . . . a very crude rule of thumb summarizing the history of votes-seats relationship in two-party systems, then the 2.5 rule is preferable to the cube law.”).
Even a slight change in the key exponent would alter the entire “S” curve, and the range of differences observed by the above authors is significant. Furthermore, even if one were to agree with those

10
authors who maintain that the exponent has “an average of about 3” (King & Browning, supra note 5, at 1260), it would remain just that: an average, an approximation across electoral systems and across time. But particular cases are not decided “on average” or “approximately.”9
Appellees’ own expert provided a revealing look at the messy reality of American elections, which cannot accurately be described by a single exponent or curve. Mr. Jackman plotted the seat and vote shares of 786 state legislative elections from 1972 to 2014 in 41 states. SA213. The resulting graph shows a rough, slanted cloud of data points both above and below Appellees’ line of perfect efficiency. Id.
Of particular interest are the data points on that graph indicating that a party that garnered a clear majority of votes actually obtained fewer seats than the cube law’s “S” curve would have predicted. (If the graph on page SA213 were a clock, this would include all of the data points between about 1:30 p.m. and 3:00 p.m.) The very existence of these cases poses a
9 It is worth noting as well that Appellees do not even rely on the cube law’s “S” curve itself. Rather, they make a further approximation of that curve, in which “for every one percentage point gain in vote share, seat share should go up by two percentage points.” SA198 (describing orange line). By this means, Appellees pile one approximation on top of another and further diminish any empirical validity their project might have. Note, too, that this two-percent estimate is itself subject to empirical dispute. Compare Tufte, supra note 8, at 546 (“The rate of translation of votes into seats differs greatly across political systems, ranging between gains of 1.3 to 3.7 per cent in seats for each 1.0 per cent gain in votes.”).

11
challenge to Appellees’ basic theory. According to Mr. Jackman’s report, the parties who won these elections obtained no victory bonus at all. Indeed, they appear to have suffered a “victory penalty.” The graph shows that some of these victorious parties attracted almost 70% of the votes cast – an epic landslide by American standards. The fact that they carried a lower percentage of districts than expected in a singlemember district system suggests that deficits in the efficiency gap (or being on the wrong side of the “S” curve) are not distinctive hallmarks of majoritarian, partisan gerrymandering. In the alternative, it suggests that Appellees have put their “S” curve in the wrong place.
The uncertainty regarding the proper location of the “S” curve is an insurmountable problem for Appellees. They seek nothing less than a constitutional revolution, in which state legislative enactments would be overturned as partisan gerrymanders if it were found that a majority party wasted fewer votes, and a minority party wasted more votes, “than expected” given a particular winning margin for the majority. How many wasted votes were “expected” for each party thus becomes a critical determination, and it primarily is based on Appellees’ calculation of the “S” curve. As Mr. Jackman explains, “[t]he efficiency gap can be computed by noting how far the observed S [the number of seats] lies above or below the orange line in Figure 4.” SA199. Thus, for Appellees’ standard to work, the “orange line” must be in the right place. If it is not, Appellees risk asking courts to strike down redistricting laws even though the majority party did

12
not have more seats “than expected” given the extent of its victory margin. Stated differently, if Appellees cannot accurately identify when an “undue” partisan advantage has been obtained, they cannot accurately identify partisan gerrymanders.10
Before courts accept Appellees’ implicit invitation to become more heavily involved in political redistricting decisions, and to review those decisions based on the efficiency gap, they must be certain that Appellees have a way to tell the difference between “expected” and “undue” partisan advantage. The efficiency gap, the cube law, and the associated “S” curve do not provide a reliable means for doing so.
10 While this is its most fundamental flaw, the efficiency gap standard is beset with technical problems. See Wendy K. Tam Cho, Measuring Partisan Fairness: How Well Does the Efficiency Gap Guard Against Sophisticated as Well as Simple-Minded Modes of Partisan Discrimination, 166 U. PA. L. REV. ONLINE 17 (2017), https://goo.gl/mHTRQF. For example, the efficiency gap is unjustifiably more volatile when applied to smaller delegations (id. at 20 n. 10, 31-32); it scores two sets of outcomes the same even though one of the two could not be improved by redistricting (id. at 23); it wrongly equates “wasted” winning votes with “wasted” losing votes, and so does not recognize changes in electoral competitiveness that matter a great deal to voters and politicians (id. at 26-27, 33); it is blind to bipartisan gerrymanders (id. at 35); and, strangely, it can find optimal efficiency whenever the vote splits 75-25 (id. at 34). Professor Tam concludes that, “[f]or ensuring partisan fairness, the efficiency gap is too easily fooled.” Id. at 36.

13
II. The Efficiency Gap Is a Poor Tool for Identifying Partisan Gerrymandering.
As explained above, the efficiency gap standard is impaired by a fundamental and unsolved data problem that renders it unworkable. In addition, the standard is wrong in principle. It emphasizes attributes of electoral systems that do not help to identify partisan gerrymanders, while it ignores features that are characteristic of such gerrymanders.
As the dissent rightly noted, Appellees’ proposed standard would enshrine in the Constitution a right to proportional representation. J.S. App. at 269a. Admittedly, the efficiency gap standard would not require or favor strict, 1-to-1 proportional representation, where a particular percentage of votes would translate into an equal percentage of legislative seats. Rather, the efficiency gap standard would limit deviations from whatever level of representation was required by the “S” curve. This is proportional representation as well, because each particular level of voter support is invariably associated with a particular level of legislative control.
But this kind of proportional representation has nothing to do with preventing gerrymandering. Deviations from proportional representation, however defined, may occur for any number of reasons other than gerrymandering, including the political views or missteps or personal qualities of the candidates of one of the parties. The absence of

14
proportional representation does not uniquely identify gerrymanders. In any event, proportional representation is not required by the Constitution.
The dissent also was right to note that the practical effect of an approach based on the efficiency gap is to unduly penalize losses in close elections, because that is where the most votes are wasted. J.S. App. at 293a (“winning close elections is the surest way to make sure the other side racks up lots of wasted votes”). But this fact “does not tell us anything about gerrymandering, however, even if partisan intent is present; it simply means one side won significantly more close elections than the other.” Id. Nor is any change in the rate at which we see close elections due to gerrymandering. See Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CAL. L. REV. 273, 312 (2011) (“the evidence that gerrymandering is a major cause of the decline in competitive elections is not powerful. Most of the increase in safe seats over the last thirty years, and the decline in marginal seats . . . has occurred in the years between redistricting cycles”).
Finally, Appellees’ approach to identifying gerrymandering ignores the factors that commentators and the Court usually have viewed as typical signs of the practice. To gerrymander properly, voters must be placed within or without districts on the basis of their partisan affiliations. Because voters typically do not choose their place of residence to favor politicians, electoral districts must be stretched and shrunk so as to include the partisan

15
mix of voters that best suits the scheming mapmaker. The inevitable result is noncompact, occasionally noncontiguous district boundaries that needlessly cross existing political boundaries. These are the true hallmarks of partisan gerrymanders. See Bandemer, 478 U.S. at 173 (Powell, J., concurring in part and dissenting in part) (of the factors that “should guide both legislators who redistrict and judges who test redistricting plans against constitutional challenges,” the “most important . . . are the shapes of voting districts and adherence to established political subdivision boundaries”) (citations omitted).

16
CONCLUSION
For the foregoing reasons, amici Judicial Watch, Inc. and Allied Educational Foundation respectfully request that the Court reverse the judgment of the District Court.
Respectfully submitted,
Robert D. Popper Counsel of Record
Chris Fedeli Lauren M. Burke Eric W. Lee JUDICIAL WATCH, INC. 425 Third Street SW Washington, DC 20024 (202) 646-5172 rpopper@judicialwatch.org
Counsel for Amici Curiae
August 3, 2017

 
 No. 16-1161
In The
Supreme Court of the United States

BEVERLY R. GILL, ET AL.,
Appellants,
v.
WILLIAM WHITFORD, ET AL.,
Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin BRIEF OF AMICI CURIAE TENNESSEE STATE SENATORS IN SUPPORT OF APPELLANTS

John L. Ryder Counsel of Record Pablo Adrian Varela Harris Shelton Hanover Walsh, PLLC 40 South Main Street, Suite 2700 Memphis, Tennessee 38103 901.545.1455 jryder@harrisshelton.com

Linda Carver Whitlow Knight Gullett Sanford Robinson & Martin, PLLC 150 Third Avenue South, Suite 1700 Nashville, TN 37201 615.244.4994 lknight@gsrm.com

Counsel for Amici Curiae

Dated: August 3, 2017

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

ii
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES………………………….. iv INTERESTS OF THE AMICI CURIAE…………….. 1 SUMMARY OF ARGUMENT………………………… 3 ARGUMENT…………………………………………….. 5
I. Colonial America through the Founding….. 5 II. Gerrymander and the Constitution………... 9
A. The Constitutional Convention………. 9 B. The State Ratifying Conventions…… 12 III. The Early Republic to 1842……………..… 16 A. Early State Approaches to
Gerrymandering………………………. 16 1. Gerrymandering in the
States…………………………..…. 16 2. States that Took Steps to Avoid
Gerrymandering……………...…. 19 3. Later Effects of State
Gerrymandering……………….... 20

iii
IV. Congressional and State Reapportionment 1842-1962…………………………………….. 22 A. Congressional Oversight of Gerrymandering………………………. 22 B. Legislation in the States……………... 24 C. Later Congressional Action………….. 25
V. The Modern Era………………………....….. 30 VI. Fruitless Search for Manageable
Standards…………………………………….. 33 VII. Proportionality………………………............ 39 CONCLUSION………………………………………… 41

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Jordan, 343 U.S. 912 (1952)…………………………….... 32

Baker v. Carr, 369 U.S. 186 (1962)………………………… passim

Colegrove v. Green, 328 U.S. 549 (1946)………………………….. 29, 32

Crone v. Darnell, 176 F. Supp. 2d 814 (W.D. Tenn. 2001)…………………………………………………. 2

Davis v. Bandemer, 478 U.S. 109 (1986)………………………… passim

Evenwel v. Abbott, 136 S. Ct. 1120 (2016)…………………………… 39

Kidd v. McCandless, 292 S.W.2d 40 (Tenn. 1956)……….……….. 31, 32

Kidd v. McCandless, 352 U.S. 920 (1956)………………………….. 31, 32

Kopald v. Carr, 343 F. Supp. 51 (M.D. Tenn. 1972)……………... 2

Langsdon v. Millsaps, 9 F. Supp. 2d 880 (W.D. Tenn. 1998)…………… 2

v
Mader v. Crowell, 498, F. Supp. 226 (M.D. Tenn. 1980)…………… 2
Mader v. Crowell, 506 F. Supp. 484 (M.D. Tenn. 1981)……………. 2
LULAC v. Perry, 548 U.S. 399 (2006)………………………….. 36, 37
Moore v. State, 436 S.W.3d 775 (Tenn. 2014)…………………….. 2
Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916)……………………………… 27
Republican Party of N.C. v. Hunt, 1996 U.S. App. LEXIS 2029 (4th Cir. 1996)…. 34
Reynolds v. Sims, 377 U.S. 533 (1964)…………………………. 31, 42
Rural West Tenn. African-American Affairs Council v. Sundquist, 209 F.3d 835 (6th Cir. 2000)….............................2
Smiley v. Holm, 285 U.S. 355 (1932)………………………….. 27, 28
State ex rel. Lockert v. Crowell, 631 S.W.2d 702 (Tenn. 1982)…………………….. 2
State ex rel. Morris v. Wrightson, 56 N.J.L. 126 (1893)……………………………... 24

vi
State ex rel. Norwood v. Holden, 47 N.W. 971 (1891)………………………………. 25
Sullivan v. Crowell, 444 F. Supp. 606 (W.D. Tenn. 1978)……………. 2
Tedesco v. Orleans Par. Bd. of Supervisors, 339 U.S. 940 (1950)……………………………… 30
Vieth v. Jubelirer, 541 U.S. 267 (2004)………………………… passim
White v. Crowell, 434 F. Supp. 1119 (W.D. Tenn. 1977)…………... 2
Wise v. Lipscomb, 437 U.S. 535, 539 (1978)………………………….. 2
Wood v. Broom, 287 U.S. 1 (1932)………………………… 25, 28, 29
Constitutions U.S. CONST. art. I, § 4………………………………….. 9 TENN. CONST. art. II, § 4……………………………... 30 Statutes Reapportionment Act of 1929,
2 U.S.C. § 2(a) (1929)……………………………. 26

vii
Other Authorities Bill Henderson, Innovation in Organizations, Part II
(Jul. 23, 2017), available at http://www.legalevolution.org/2017/07/innovatio n-in-organizations-part-ii-016/.......................... 37
DEBATES ON THE FEDERAL CONSTITUTION (J. Elliott ed., 2d ed. 1876)…………………………..…. 10, 11
ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER (University of Chicago 1907)……………… passim
ERIK J. ENGSTROM, PARTISAN GERRYMANDERING AND THE CONSTRUCTION OF AMERICAN DEMOCRACY (The University of Michigan Press 2013)…….. 21
Gabriel J. Chin, Justifying A Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule, 94 B.U. L. Rev. 1551 (2014)….. 22
H.R. MCILWAINE, ED., JOURNALS OF THE HOUSE OF BURGESSES, 1619-1659 (Virginia State Library 1915)…………………………………………………. 8
James A. Gardner, Foreword: Representation Without Party: Lessons from State Constitutional Attempts to Control Gerrymandering, 37 Rutgers L. J. 881 (2006)………………………23

viii
J. DOUGLASS SMITH, ON DEMOCRACY’S DOORSTEP: THE INSIDE STORY OF HOW THE SUPREME COURT BROUGHT ONE PERSON, ONE VOTE TO THE UNITED STATES (Hill and Wang 2014)……………………. 7
Jenni Salmon, Ohio’s 1842 Election: Absqatulators vs. Gerrymanderers, Ohio Memory (Sep. 6, 2013), http://www.ohiohistoryhost.org/ohiomemory/arch ives/133................................................................21
Laughlin McDonald, Symposium: Election Law: The Looming 2010 Census: A Proposed Judicially Manageable Standard and Other Reform Options for Partisan Gerrymandering, 46 Harv. J. on Legis. 243 (2009)………………………..24, 25
Matthew S. Gottlieb, Encylopedia Virginia, House of Burgesses (Feb. 6, 2012), available at https://www.encyclopediavirginia.org/House_of_ Burgesses............................................................. 8
Michael W. Catalano, Kidd v McCanless: The Genesis of Reapportionment Litigation In Tennessee, 44 Tennessee Historical Quarterly No.1, 72 (Spring 1985)…………………………... 31
PETER H. ARGERSINGER, REPRESENTATION AND INEQUALITY IN LATE NINETEENTH-CENTURY AMERICA: THE POLITICS OF REAPPORTIONMENT (Cambridge University Press 2012)…………… 24
RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787 (Max Farrand ed., rev. ed. 1966)...11, 14, 16

ix
SEAN TRENDE, THE LOST MAJORITY (Palgrave McMillen 2012)…………………………………… 40
THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (Peden ed. 1955)……………………… 17
WILLIAM SAFIRE, SAFIRE’S POLITICAL DICTIONARY (Oxford University Press 2008)………………... 18

1
STATEMENT OF INTEREST1
Amici are members of the Tennessee State Senate, appearing in their individual capacities: the Speaker of the Senate, Randy McNally, who represents the Fifth Senatorial District, and is also the Lieutenant Governor of Tennessee; Senator Mae Beavers, who represents the Seventeenth Senatorial District; Senator Mike Bell, who represents the Ninth Senatorial District; Senator Janice Bowling, who represents the Sixteenth Senatorial District; Senator Rusty Crowe, who represents the Third Senatorial District; Senator Dolores Gresham, who represents the Twenty-Sixth Senatorial District; Senator Ferrell Haile, who represents the Eighteenth Senatorial District; Senator Edward Jackson, who represents the Twenty-Seventh Senatorial District; Senator Jack Johnson, who represents the Twenty-Third Senatorial District; Senator Brian Kelsey, who represents the ThirtyFirst Senatorial District; Senator Bill Ketron, who represents the Thirteenth Senatorial District; Senator Jon Lundberg, who represents the Fourth Senatorial District; Senator Jim Tracy, who represents the Fourteenth Senatorial District; and Senator Ken Yager, who represents the Twelfth Senatorial District.
The Senate and House of Representatives will have primary responsibility for redistricting and
1 Counsel for all parties have consented to this filing. No counsel for any party authored this brief in whole or in part, and not entity or person aside from amici curiae, their members, and their counsel made any monetary contribution toward the preparation or submission of this brief.

2
reapportionment following the next decennial census. This Court has “repeatedly held that redistricting and reapportioning legislative bodies is a legislative task …”2
Tennessee has experienced substantial litigation over its redistricting.3 If this Court affirms the court below and validates Appellees’ social science theory, this would lead to countless, and endless, lawsuits and appeals over minutiae.
The existing objective guidelines for redistricting, which the Wisconsin Legislature followed, provide sufficient standards for state and local legislative bodies to follow in drawing districts. It would be impossible and counterproductive for courts to interject themselves further into the myriad complex and nuanced considerations, and the balancing of numerous competing interests that go into the drawing of local, state, and federal districts.
2 Wise v Lipscomb, 437 U.S. 535,539 (1978). 3 Baker v. Carr, 369 U.S. 186 (1962); Rural West Tenn. African-American Affairs Council v. Sundquist, 209 F.3d 835 (6th Cir. 2000), cert. denied, 531 U.S. 944 (2000); Crone v. Darnell, 176 F. Supp. 2d 814 (W.D. Tenn. 2001); Langsdon v. Millsaps, 9 F. Supp. 2d 880 (W.D. Tenn. 1998); Mader v. Crowell, 506 F. Supp. 484 (M.D. Tenn. 1981); Mader v. Crowell, 498 F. Supp. 226 (M.D. Tenn. 1980); Sullivan v Crowell, 444 F. Supp. 606 (W.D. Tenn. 1978); White v. Crowell, 434 F. Supp. 1119 (W.D. Tenn. 1977); Kopald v. Carr, 343 F. Supp. 51 (M.D. Tenn. 1972); Moore v. State, 436 S.W.3d 775 (Tenn. 2014); State ex rel. Lockert v. Crowell, 631 S.W.2d 702 (Tenn. 1982).

3
SUMMARY OF ARGUMENT
Political gerrymanders are as old as representative government. Gerrymanders were known from the Colonial era, during the Constitutional Convention, through the early Republic, throughout the Nineteenth Century and up to the present day.
Even though gerrymandering was well-known and understood when the Constitution was written and ratified, it is silent as to how legislative and Congressional districts may be drawn. Certainly, the Constitution does not forbid political considerations in the drawing of districts. While it does expressly contain authority for Congressional oversight, it does not specify authority for judicial oversight of legislative political gerrymanders. The judiciary simply cannot effectively do so.
Since this Court’s ruling in Davis v Bandemer,4 courts have sought, but have failed to define, a judicially manageable standard by which to adjudicate political gerrymander claims. Beyond applying the existing, well-understood standards for constitutionally drawing districts, courts cannot perform the purely legislative function of drawing districts from the village level to the Congressional level, nor were they meant to.
In adopting any artificial standard, including the proposed efficiency gap standard, the Court would transform the basis of representation from district-based representation, to one of externallydictated proportional representation, a result plainly
4 478 U.S. 109 (1986).

4
precluded by precedent, and a policy decision about the fundamental nature of representation that this Court should recognize as beyond its jurisdiction and beyond the bounds of the Constitution.

5
ARGUMENT “Political gerrymanders are not new to the American scene.”5 In 1907, Elmer Cummings Griffith could say: “Aside from the one case of the gerrymander in Massachusetts which gave rise to the term itself, but little has been written collectively upon the general subject, at least prior to the famous decision of the courts in the state of Wisconsin.”6 This is, unfortunately, no longer the case. The political gerrymander has been discussed extensively in the courts, in academia, by the political pundits, and in the public square. That discussion arises from courts’ entertaining novel arguments for additional standards, not from an increase in gerrymandering itself. I. Colonial America through the Founding The political gerrymander is probably as old as representative government itself and was well known by the time the Constitution was drafted. The basic principle of apportioning representatives among governmental entities, towns, or counties, as opposed to blocs of equal population took hold in the Colonies, even though to the Colonists, the English system of representation was a model of governance
5 Vieth v. Jubelirer, 541 U.S. 267, 274 (2004). 6 ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER 3 (University of Chicago 1907) (hereinafter “GRIFFITH”).

6
to be avoided rather than imitated.7 In his plurality opinion in Vieth v Jubilirer, Justice Scalia noted:
One scholar traces them back to the Colony of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. In 1732, two members of His Majesty’s Council and the attorney general and deputy inspector and comptroller general of affairs of the Province of North Carolina reported that the Governor had proceeded to ‘‘divide old Precincts established by Law, & to enact new Ones in Places, whereby his Arts he has endeavoured to prepossess People in a future election according to his desire, his Designs herein being either to endeavor by his means to get a Majority of his creatures in the Lower House’’ or to disrupt the assembly’s proceedings.8
The practice originates from the British system of representation, upon which the colonial system was based. “In the British model, towns, or ‘boroughs’ were assigned representation in the House of Commons. As British citizens moved
7 Baker v. Carr, 369 U.S. 186, 307 (1962) (Frankfurter, J. dissenting). 8 Vieth, 541 U.S. at 274 (internal citations omitted).

7
around and once flourishing population centers declined, representation remained fixed and ultimately produced what was called a ‘rotten borough.’”9 In the Colonies, apportionment was a political tool in the struggles between the King of England and the Royal Governors, on the one hand, and the colonial Legislatures, on the other hand.10 Later, it became a tool used in the tensions between the older “tidewater regions” and the newer interior areas of the country.11
Numerous early examples of political gerrymanders abound:
In some, as in Massachusetts and Rhode Island, numbers of electors were taken into account, in a rough fashion, by allotting increasing fixed quotas or representatives to several towns or classes of towns graduated by population, but in most of the colonies delegates were allowed to the local units without respect to numbers. This resulted in grossly unequal electoral units. The representation ratio in one
9 Id. at 331 n. 25; see also J. DOUGLASS SMITH, ON DEMOCRACY’S DOORSTEP: THE INSIDE STORY OF HOW THE SUPREME COURT BROUGHT ONE PERSON, ONE VOTE TO THE UNITED STATES 12 (Hill and Wang 2014). 10 Baker, 369 U.S. at 307-08 (citing WILLIAM S. CARPENTER THE DEVELOPMENT OF AMERICAN POLITICAL THOUGHT 48-49, 54 (Princeton University Press 1930) (hereinafter “CARPENTER”); GRIFFITH at 26, 28-29). 11 Id. (citing CARPENTER 87; Griffith 26-29, 31).

8
North Carolina county was more than eight times that in another.12
Virginia originally assigned representation in the House of Burgesses by settlement or plantation in the British fashion.13 Later assignments were made by towns or combinations of towns and then by counties.14 The weakest bodies in colonial Virginia were the colonial Assemblies, composed of a House, popularly elected by the Colonists from election districts composed of towns, parishes or counties, and a Governor’s Council, composed of his appointees.15 As counties were created, the House of Burgesses grew from 22 in 1619 to 120 in 1775.16
By 1776, Virginia, was divided into twentyfour Senatorial Districts of one to three counties, resulting in the gerrymandering of the colony. The dominant faction combined large numbers of their opponents’ supporters into a district (“packing”), and spread out their supporters into multiple other districts (“cracking”).17 The result was that as few as nineteen thousand (19,000) men from a few counties would elect half of the colony’s forty Senators, while the remainder of the colony, with thirty thousand (30,000), would only elect twelve.18
12 Id. 13 Matthew S. Gottlieb, Encylopedia Virginia, House of Burgesses (Feb. 6, 2012), available at https://www.encyclopedia virginia. org/ House_of_Burgesses. 14 Id. 15 Id. 16 H.R. MCILWAINE, ED., JOURNALS OF THE HOUSE OF BURGESSES, 1619-1659 vi (Virginia State Library) (1915). 17 GRIFFITH at 30-31. 18 Id.

9
So notorious was the practice, that the Declaration of Independence included it as one of the list of grievances against the King of England: “He has refused to pass laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the Legislature, a right inestimable to them and formidable to tyrants only.”19
II. Gerrymander and the Constitution
A. The Constitutional Convention
Having experienced political gerrymandering firsthand, the delegates to the Constitutional Convention considered whether congressional districts should be drawn by the states or by Congress and concluded that the districts should be drawn by the states. In the Convention, discussions of what would become known as gerrymandering centered around the proposed language of the Elections Clause found at Article I, § 4.20 During the Convention, there was some appetite for federal control over the drawing of districts, purportedly to prevent unfair practices, but the majority of the Framers agreed that the cure of ceding to Congress the control over drawing districts would have been worse than the disease. Eventually, a balance was struck, whereby state Legislatures would draw
19 THE DECLARATION OF INDEPENDENCE para. 5 (U.S. 1776). 20 The Elections Clause states that “The Times Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” U.S. CONST. art. I, § 4, cl. 1 (emphasis added).

10
Congressional districts but Congress could intervene if deemed necessary.
The Convention made no effort to address the districting of the state legislative bodies, even though it was the state Legislatures that elected the Senators. Much of the spirited debate regarding whether to cede control of drawing districts to Congress focused on the proposed “make or alter” language of the Elections Clause.21 During the debate, South Carolinians Charles Pinckney and John Rutledge attempted to strike the proposed language.22 Some delegates were concerned that Congress would abuse its power and deprive the “rights of the people to a free and equal representation in Congress” by drawing uneven lines to favor a particular political faction. Conversely, others feared state election fraud,23 centralized voting locations,24 and various schemes that states might devise to “counteract the will of a majority of the people.”25 James Madison’s reasoned response to his fellow delegates was that to give Congress the power to “check partisan manipulation of the [drawing of Congressional districts] by the states”
21 Vieth, 541 U.S. at 275. 22 Id. (quoting 2 RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1787 240-41 (Max Farrand ed., rev. ed. 1966) (hereinafter “FARRAND’S RECORDS”)). 23 5 DEBATES ON THE FEDERAL CONSTITUTION 401-402 (J. Elliott ed., 2d ed. 1876) (hereinafter “ELLIOTT’S DEBATES”). 24 3 Id. at 60. 25 2 Id. at 49.

11
would prevent district inequities from infecting Congress, like it had “infected” state Legislatures.26
At the forefront of Madison’s mind was likely the most egregious inequality at the time: the thirty (30) delegates allotted to Charleston in the Legislature of Pinckney’s and Rutledge’s home state, South Carolina.27 Ultimately, Madison’s rhetorical skills prevailed, as the Convention unanimously approved the Elections Clause.28 During the state ratification debates, even Pinckney defended the federal check on state legislative power over drawing Congressional districts to his fellow South Carolinians.29
The Framers arrived at a balance of power and dispersal of competing interests (both laterally, by separation of powers, and vertically, by federalism, especially as enunciated shortly thereafter in the Ninth and Tenth Amendments), and established a framework for governing. As noted by the Vieth plurality, a Massachusetts delegate said at his state’s ratifying convention that:
Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear
26 Vieth, 541 U.S. at 275 (quoting 2 FARRAND’S RECORDS at 240-241). 27 3 FARRAND’S RECORDS at 267. 28 4 ELLIOTT’S DEBATES at 303. 29 Id.

12
impartially, and preserve and restore to the people their equal and sacred rights of election.30
Conspicuously absent from any of the Constitutional Convention debates was any discussion of the judiciary as an appropriate check on the drawing of Congressional or Legislative districts that one faction or another thought was unfair, or any discussion that representation should be proportional based on relative sizes or strengths of different interests. In fact, the provision granting Congress oversight implicitly rejects the notion of judicial oversight or approval of proportional representation.
B. The State Ratifying Conventions
Debate on the issue continued during the ratifying conventions in the states. In 1788 at the Massachusetts ratifying convention, Virginia’s redistricting practices were compared to other states:
Hon. Mr. King rose to pursue the inquiry, why the place and manner of holding elections were omitted in the section under debate. It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships. But it was
30 Vieth, 541 U.S. at 276 (quoting 2 ELLIOTT’S DEBATES at 27).

13

different in the southern States. He

would mention an instance. In Virginia

there are but fifteen or twenty towns,

and seventy or eighty counties;

therefore no rule could be adopted to

apply to the whole. If it was

practicable, he said, it would be

necessary to have a district the fixed

place. But this is liable to exceptions;

as a district that may now be fully

settled, may in time be scarcely

inhabited; and the back country, now

scarcely inhabited, may be fully settled.

Suppose this State thrown into eight

districts, and a member apportioned to

each: if the numbers increase, the

representatives and districts will be

increased. The matter, therefore, must

be left subject to the regulation of the

State legislature, or the general

government.

Suppose the State

legislature, the circumstance will be the

same. It is truly said, that our

representatives are but a part of the

Union, and that they may be subject to

the control of the rest; but our

representatives make a ninth part of

the whole, and if any authority is

vested in Congress it must be in our

favor. But to the subject: in Connect

cut they do not choose by numbers, but

by corporations. Hartford, one of their

largest towns, sends no more delegates

than one of their smallest corporations,

each town sending two, except latterly,

14

when a town was divided. The same

rule is about to be adopted in Rhode

Island. The inequality of such

representation, where every corporation

would have an equal right to send an

equal number of representatives, was

apparent. In the southern States, the

inequality is greater.

By the

Constitution of South Carolina, the city

of Charleston has a right to send thirty

representatives to the General

Assembly, the whole number of which

amounts to two hundred. The back

parts of Carolina have increased greatly

since the adoption of their Constitution,

and have frequently attempted an

alteration of this unequal mode of

representation; but the members from

Charleston, having the balance so much

in their favor, will not consent to an

alteration; and we see that the

delegates from Carolina in Congress

have always been chosen from the

delegates of that city.

The

representatives, therefore, from that

State, will not be chosen by the people,

but will be the representatives of a

faction of that State. If the general

government cannot control in this case,

how are the people secure?31

31 3 FARRAND’S RECORDS at 267 (Rufus King in the Massachusetts Convention).

15
At the Virginia ratifying convention, Madison described the situation in South Carolina:
With respect to the other point, it was thought that the regulation of time, place, and manner of electing the representatives, should be uniform throughout the continent. Some states might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some states, particularly South Carolina, with respect to Charleston, which is represented by 30 members. — Should the people of any state, by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government. It was found impossible to fix the time, place, and manner, of the election of representatives in the constitution. It was found necessary to leave the regulation of these, in the first place, to the state governments, as being best acquainted with the situation of the people, subject to the controul of the general government, in order to enable it to produce uniformity, and prevent its own dissolution. And considering the state governments and general government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be

16

submitted to the former, and the general regulations to the latter. Were they exclusively under the controul of the state governments, the general government might easily be dissolved. But if they be regulated properly by the state legislatures, the congressional controul will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the constitution.32

Interestingly, the participants in the ratification debates were quick to condemn the flaws in other states’ redistricting processes, while failing to acknowledge their own. Nonetheless, the debates, both in the Constitutional Convention and in the state ratifying conventions, make clear that the Founders were well aware of the issue of political gerrymanders. Even so, the state ratifying conventions did not propose that the Constitution include judicial oversight.

III. The Early Republic to 1842

A. Early State Approaches to Gerrymandering

1. Gerrymandering in the States

The growth of representative government and

population invariably led to frequent adjustments of

county boundaries and creation of new counties, a

practice that was frequently abused during the

colonial era for the purpose of securing political

advantage.33

The practice of political

32 Id. at 311 (James Madison at the Virginia Convention). 33 GRIFFITH at 24-25.

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gerrymandering and the attempts to restrain it were common, well understood, and frequently practiced in numerous states before 1812.34
In 1789, early allegations of gerrymandered Congressional districts appeared in New York newspapers after the state was divided into districts. The New York Legislature, controlled by the Federalists, added several towns from the Second District of Westchester (a Federalist district) to the Third District of Dutchess (an Anti-Federalist district), converting Dutchess to a Federalist district.35 Further, the statute originally creating the districts was later amended to allow each district to elect its representative from the state at large, suggesting that the Federalists sought a particular result from future elections.36
In Virginia, Thomas Jefferson recorded that some counties with disparities in populations of up to seventeen times those of other counties elected the same number of Representatives and that 19,000 men living east of the mountains elected half of the Senators and almost half of the Delegates.37
In 1780 in South Carolina, three southern districts with a population of fewer than 29,000 elected twenty Senators and seventy Assembly members, while other parts with a population of over
34 Id. at 61. 35 Id. at 42-43. 36 Id. 37 Baker, 369 U.S. at 308-09 (citing THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (Peden ed. 1955).

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111,000 only elected seventeen Senators and fiftyfour Assemblymen.38
In 1792, when Congressional districts were being established in Virginia, fears of continued gerrymandering led George Mason to proclaim that the districts should not be created with a view towards serving any particular party.39
The most famous gerrymander is undoubtedly that of the reconfiguring of the Essex County Senatorial district of Massachusetts in 1812, from which the term gerrymander arose. William Safire described how the term came to be:
The term is derived from the name of Governor Gerry, of Massachusetts, who in 1811 signed a bill readjusting the representative districts so as to favor the Democrats and weaken the Federalists, although the last named party polled nearly two-thirds of the votes cast. A fancied resemblance of a map of the districts thus treated led Stuart, the painter to add a few lines with his pencil, and say to Mr. Russell, editor of the Boston Centinel, “That will do for a salamander.” Russell glanced at it: ‘Salamander! Said he, “Call it a Gerrymander.”40
38 Id. (citing CARPENTER at 139-40). 39 GRIFFITH at 46. 40 WILLIAM SAFIRE, SAFIRE’S POLITICAL DICTIONARY 289 (Oxford University Press 2008).

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From 1812 through 1840, the gerrymander would continue to replicate itself in Massachusetts and elsewhere. In Massachusetts, there were gerrymanders of the commonwealth’s state Senate or Congressional districts in 1814, 1816, 1820, 1822, 1824, 1932, and 1842. In New Hampshire, gerrymanders of the state Senate and Congressional districts took place in 1816 and 1824. Gerrymanders also occurred in 1816 and 1832 in Maryland; in Connecticut in 1835; and in Pennsylvania’ legislative districts in 1836.41
2. States that Took Steps to Avoid Gerrymandering
Gerrymandering was so prevalent in the early Republic that attempts to legislate against it date back to at least 1790, in Pennsylvania. While drafting Pennsylvania’s second Constitution, the Legislature divided the commonwealth into Senatorial districts. Where multiple counties formed a district, Pennsylvania’s Constitution imposed requirements that the counties be adjoining and that counties and cities could not be divided between districts. These provisions would later be attributed to the attempt to prevent gerrymandering.42
Following Pennsylvania’s lead, Tennessee in 1796 and Kentucky in 1799 adopted similar clauses in their Constitutions aimed at prohibiting or limiting gerrymandering.43 Likewise, the 1819
41 GRIFFITH at 88-97, 99-102, 104-08; 111-12; and 114-15. 42 Id. at 44-45. 43 Id. at 45.

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Alabama Constitution contained provisions tending to restrict the possibilities of gerrymandering.44
Early Nineteenth Century demands from the interior for more equal representation became more insistent. This period in our nation’s history was replete with fierce sectarian and party strife regarding the geographic allocation of representation,45 producing a variety of apportionment methods to address the growing population.46 For example, the apportionment disparity in Virginia became a major factor in precipitating the call of a constitutional convention to address the issue in 1829;47 however, in no case did the state remedy involve proportional representation.
B. Later Effects of State Gerrymandering The importance and effect of gerrymandering
at this stage in our nation’s history were amplified, by the fact that state Legislatures could control their representatives to both branches of Congress. Since Senators were elected by state Legislatures, gerrymandering of state legislative districts could determine which faction picked the state’s Senators, and the gerrymandering of United States House districts could yield the state Legislature control of that branch of Congress.
44 Id. at 95. 45 Id. (citing CARPENTER at 130-37; ROBERT LUCE, LEGISLATIVE PRINCIPLES: THE HISTORY AND THEORY OF LAWMAKING 364-65 (Houghton Mifflin Company 1930); GRIFFITH at 116-17). 46 Id. at 310. 47 Id. at 310 (citing GRIFFITH at 102-04).

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‘‘‘By 1840, the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.’”48 In 1842, Congress imposed districting ending the longstanding practice of electing United States Representatives via general ticket.49 By that time, the two-party system had developed into “large-scale electoral machines focused on wining mass-based elections and capturing control of the national government.”50
Legendary gerrymanders of Congressional districts occurred in Ohio beginning in the 1840’s. Ohio followed the traditional policy of redistricting once every ten years, following the census until 1842, when the Democratic controlled Legislature apportioned Ohio’s Congressional districts in a manner that the Whigs considered grossly unfair and partisan.51 Subsequently, the Whigs regained control of the Legislature (despite running under a Democratic gerrymander) and remapped the state in 1844-1845. This was the first time a Legislature
48 Vieth, 541 U.S. at 274-75 (quoting GRIFFITH at 123). 49 ERIK J. ENGSTROM, PARTISAN GERRYMANDERING AND THE CONSTRUCTION OF AMERICAN DEMOCRACY 43 (The University of Michigan Press 2013). 50 Id. 51 Jenni Salmon, Ohio’s 1842 Election: Absqatulators vs. Gerrymanderers, Ohio Memory (Sep. 6, 2013), http://www. ohiohistoryhost.org/ohiomemory/archives/133.

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exercised the implied power to redistrict a state middecade.52
Partisan gerrymandering had become a thoroughly ingrained aspect of our national twoparty system; however, no egregious redistricting was the subject of action by Congress until Reconstruction.53 IV. Congressional and State Reapportionment 1842-
1962 A. Congressional Oversight of Gerrymandering
Until Congress imposed Congressional districts in 1842, the manner in which states chose their Representatives was not uniform.54 Thereafter, in the Nineteenth and Twentieth Centuries, Congress used its authority under Article I, § 4, to restrain gerrymandering of Congressional districts through a series of Apportionment Acts, culminating in the Reapportionment and Census Act of 1929.55 Through the Apportionment Acts, Congress exercised its power in attempts to restrain gerrymandering by requiring district contiguity and compactness, and single-member districts. The Acts also required that each district contain as equal a number of persons as practicable. Even so, whatever the controlling Apportionment Act at the time,
52 Id. 53 Gabriel J. Chin, Justifying A Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule, 94 B.U. L. Rev. 1551, 1565 (2014). 54 Colegrove v. Green, 328 U.S. 549, 555 (1946). 55 Vieth, 541 U.S. at 276.

23
disparities in population of districts continued to prevail.56
The requirements of single-member districts57 and districts “composed of contiguous territory”58 were first imposed in the Apportionment Act of 1842. With that statute, the gerrymandering practice of switching between at-large and districted Congressional elections for political advantage by opportunistic majorities in state Legislatures was effectively stopped.59 All Apportionment Acts passed after 1842, until 1872, reiterated the single-member and contiguity requirements.60
The Apportionment Act of 1872 added the requirement that the population of each district have, “as nearly as practicable,” an equal number of inhabitants.61 Finally, a compactness requirement for Congressional districts was adopted in the Apportionment Act of 1901.62 The contiguity, compactness, and equality of population requirements were reiterated in each Apportionment Act from 1842 through the Apportionment Act of 1911. After 1911, they were intentionally
56 Colegrove, 328 U.S. at 555. 57 Vieth, 541 U.S. at 276. 58 Id. (citing GRIFFITH at 12 (noting that the law was “an attempt to forbid the practice of the gerrymander”)). 59 James A. Gardner, Foreword: Representation Without Party: Lessons from State Constitutional Attempts to Control Gerrymandering, 37 Rutgers L. J. 881, 913 (2006). 60 The contiguity and equality of population requirements were repeated in the Apportionment Acts of 1862, 1872, 1882, 1892, and 1901. 61 Vieth, 541 U.S. at 276. 62 Id.

24
discontinued.63 Only the single-member districts requirement remains today.64
None of the Apportionment Acts adopted proportional representation.
B. Legislation in the States From 1846 to 1889, the New Jersey
Legislature passed no less than eighteen (18) acts and supplemental acts regulating elections.65 In 1871, the Legislature introduced a new system for constructing Assembly districts, “plainly for the furtherance of political purposes,”66 leading to arbitrary, grotesquely shaped districts where qualified voters of one political party were amassed to secure their advantage against those of the other party.67
From 1879 to 1886, the Ohio Legislatures redistricted the states’ Congressional districts four times achieving a partisan advantage in the House and Senate delegations.68
63 Wood v. Broom, 287 U.S. 1, 7 (1932). (“It was manifestly the intention of the Congress not to re-enact the provision as to compactness, contiguity, and equality in population with respect to the districts to be created pursuant to the reapportionment under the Act of 1929.”). 64 Vieth, 541 U.S. at 276. 65 State ex rel. Morris v. Wrightson, 56 N.J.L. 126, 186-87; 204-06 (1893). 66 Id. at 204. 67 Id. 68 PETER H. ARGERSINGER, REPRESENTATION AND INEQUALITY IN LATE NINETEENTH-CENTURY AMERICA: THE POLITICS OF REAPPORTIONMENT (Cambridge University Press 2012).

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In 1882, South Carolina adopted a Congressional redistricting plan described as “one of the most complete gerrymanders ever drawn by a legislative body.69 While the backdrop of this gerrymander was the aftermath of Reconstruction, it is a prime example of the practice that would one day be called “packing.” Democrats, in an attempt to dilute the power of the black, Republican majority in the state, drafted what has been termed the “boa constrictor” district, running from Columbia nearly to Savannah, splitting six counties, and at one point extending into the Atlantic Ocean to exclude Democrats from the district.70
In 1891, the Commission (including the lame duck Commissioners) of Murray County, Minnesota redrew the county’s district map after the 1890 election, but before the newly elected Commissioners could take office. At the time of the election, each newly elected Commissioner lived within his respective district.71 The effect of the redrawn map was that the Commissioners-Elect no longer resided in the districts in which they had run.72 After the redistricting, the Commission met and determined the Commissioners-Elect were no longer qualified to take the offices they had won, and appointed the lame-duck Commissioners to succeed themselves.73
69 Laughlin McDonald, Symposium: Election Law: The Looming 2010 Census: A Proposed Judicially Manageable Standard and Other Reform Options for Partisan Gerrymandering, 46 Harv. J. on Legis. 243, 246 (2009). 70 Id. 71 Id. 72 State ex rel. Norwood v. Holden, 47 N.W. 971, 972 (1891). 73 Id. at 315.

26

C. Later Congressional Action

The Reapportionment and Census Act of 1929

was a combination census and reapportionment

statute establishing a permanent method for

apportioning a constant 435 seats in the House of

Representatives. In 1932, this Court, in Wood v.

Broom held that the provisions of each

Apportionment Act affected only the apportionment

for which they were written, thereby eliminating the

size and population requirements of previous

Apportionment Acts, which were last required in

the Apportionment Act of 1911.74

The

Reapportionment act of 1929 eliminated any

mention of districts, allowing the political parties in

control of state Legislatures to draw districts of

various sizes or to abandon districts altogether.75

In 1941, Congress passed the last Apportionment Act. The statute did nothing further to address political gerrymanders. In the years that followed, courts began wading into the “political thicket” of political gerrymander cases.76 Congress’s decision not to regulate further in this area may well be based on judicial decisions to apply the Equal

74 Broom, 287 U.S. at 8 (1932). 75 Reapportionment Act of 1929, 2 U.S.C. § 2(a) (1929). 76 See Baker, 369 U.S. at 270. (Frankfurter J. dissenting) (stating that Baker “is the latest in the series of cases in which the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been invoked in federal courts as restrictions upon the power of the States to allocate electoral weight among the voting populations of their various geographical subdivisions.”)

27
Protection and Due Process Clauses in their antigerrymandering attempts.77
Even before Baker v. Carr, decided in 1962, federal courts had considered political gerrymandering cases;78 however, in cases raising issues regarding redistricting of state political subdivisions, courts consistently refused to exercise their powers to fashion equitable remedies.79
In 1916, in Ohio ex rel. Davis v. Hildebrant, this Court affirmed the lower court’s refusal to dismiss a case for lack of subject-matter jurisdiction.80 Ohio citizens had held a referendum in which they rejected the Legislature’s then Congressional redistricting plan. The lower court dismissed the suit, which sought a writ of mandamus to order state election officials to ignore the referendum vote. The lower court denied the writ, holding that the referendum disapproving the law was part of the state’s “legislative power” and that the disapproved law was not entitled to be enforced by mandamus.81 In reviewing the case, this Court concluded that it could either dismiss the case for want of federal question subject-matter jurisdiction, or affirm the lower court on the merits of the case.82 The Court determined that the controversy contained sufficient federal characteristics to reject dismissal for want of
77 Baker, 369 U.S. at 270. 78 Id. at 201. 79 Id. at 279. 80 Id.; see also Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). 81 Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 567 (1916). 82 Id. at 570.

28

jurisdiction and instead addressed the merits, affirming the lower court.83

In the 1916 case of Smiley v. Holm,84 this

Court reversed the Minnesota Supreme Court’s

dismissal of a suit seeking to enjoin the Secretary of

State from implementing Minnesota Congressional

redistricting legislation.85 The state had been

required to reapportion because of a decrease in

population.

The Legislature had passed

reapportionment legislation which the Governor

vetoed; however, pursuant to legislative resolution

the bill was nevertheless sent to the Secretary of

State. A citizen sued, seeking a declaratory

judgment that the reapportionment legislation was

unconstitutional because the Governor had vetoed it.

The trial court dismissed the case, concluding that

the drawing of Congressional districts was a

discharge of a duty and did not amount to a law-

making function. The Minnesota Supreme Court

affirmed the dismissal.86 This Court reviewed the

constitutionality of the legislation and reversed the

Minnesota Supreme Court.87 It held that pursuant

to Article I, § 4 of the United States Constitution,

Congressional district legislation is a law-making

function and that a Legislature did not have

authority to pass laws beyond what it was allowed

under its Constitution.88

83 Id. 84 285 U.S. 355, (1932). 85 Baker, 369 U.S. at 277-78; see also Holm, 285 U.S. 355 (1932). 86 Holm, 285 U.S. at 361-62. 87 Id. at 373. 88 Id.

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In 1932, in Wood v. Broom, this Court reversed a Mississippi District Court which had permanently enjoined state officials from proceeding with a Congressional election under the state’s redistricting act.89 The District Court determined that the districts were not composed of compact and contiguous territory having, as nearly as practicable, the same number of inhabitants, thus, violating the Apportionment Act of 1911. This Court reviewed the Apportionment Acts of 1911 and 1929 and held that the districting requirements contained in previous Apportionment Acts were intentionally excluded from the 1929 Act and therefore no longer in force and not applicable.90 In Mahan v. Hume,91 in a per curiam decision, this Court also reversed a similar ruling by a Kentucky District Court concerning a Kentucky redistricting act.
In Colegrove v. Green, decided in 1946, this Court reviewed the dismissal of the case by the District Court for the Northern District of Illinois. The District Court, pursuant to Wood v. Broom, had dismissed the complaint against state officials seeking to restrain them from holding the November 1946 election under the existing Illinois Congressional districting legislation.92 Illinois had not passed a Congressional redistricting statute since 1901. Appellants argued that the statute was unconstitutional for violating the compactness and
89 Baker, 369 U.S. at 201. 90 Broom, 287 U.S. at 12. 91 287 U.S. 575 (1932). 92 Colegrove, 328 U.S. at 550-51.

30
equal population requirements of the Apportionment Act of 1911.93
This Court agreed that the case was properly dismissed pursuant to Wood v. Broom’s reasoning that such matters should be dismissed for “want of equity.”94 The Court concluded the Appellants were simply asking the Court to go beyond what it was competent to grant.95 The Court stated, “the remedy for unfairness in [Congressional] districting is to secure State Legislatures that will apportion properly, or invoke the ample powers of Congress.”96
In addition, the Court held that dismissal was appropriate for lack of a sufficient federal question in cases dealing with apportionment of districts of smaller subdivisions of states.97 The Court determined that it lacked the power to fashion equitable remedies to address political gerrymandering of Congressional districts; however, it did not address whether partisan gerrymanders were ever justiciable, even though that was implied by the ruling. V. The Modern Era
The tradition of dismissing political gerrymandering cases for lack of a substantial
93 Id. 94 Id. at 551-52. 95 Id. at 552. 96 Id. at 556. 97 See e.g. Tedesco v. Orleans Par. Bd. of Supervisors, 339 U.S. 940 (1950) (affirming lower court’s dismissal for lack of substantial federal question on the claim that of the division of a municipality into voting districts of unequal population was unconstitutional).

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federal question changed with this Court’s landmark decision in Baker v. Carr.98 In Tennessee, the state Constitution required the General Assembly to reapportion following each decennial census.99 However, the General Assembly failed to follow the dictates of its own Constitution. In 1901, the General Assembly passed an Apportionment Act, and for the next sixty (60) years, it failed to pass any reapportionment legislation.

Between 1901 and 1960, Tennessee

experienced substantial growth and

redistribution of her population. For

example, in 1900, the First Senatorial

district in upper east Tennessee had a

population of 86,328.

The 18th

Senatorial district in rural Middle

Tennessee had a population of 45,125.

By 1950, the 1st District had grown to

171,615, while the 18th District was

only 50,624.100

The urban districts were severely overpopulated and the rural districts significantly underpopulated. Moore County, home to the Jack Daniels Distillery, had in 1960 a population of 2,340 and was entitled to one representative. Rutherford County, suburban Nashville, had a population of 25,316, and was also only entitled to one representative.101 By simple (but

98 389 U.S. 186 (1962). 99 TENN. CONST. art. II, § 4. 100 Michael W. Catalano, Kidd v McCanless: The Genesis of Reapportionment Litigation In Tennessee, 44 Tennessee Historical Quarterly No.1, 72, 74 (Spring 1985) (hereinafter “Catalano”). 101 Baker, 382 U.S. at 255 (Clark, J. concurring).

32
intentional) inaction, the Tennessee General Assembly was able to preserve rural domination of the state House and Senate.
In 1955, Representative Maclin Davis of Nashville introduced House Bill 136 of the 84th General Assembly, to reapportion the state.102 His bill was soundly rejected by the rural dominated Legislature. Davis filed suit in state court, arguing that the state Constitution required the Legislature to reapportion the state. While the trial court ruled in favor of the Plaintiff, the suit was ultimately rejected by the Tennessee Supreme Court under the “political question” doctrine.103 This Court granted certiorari but subsequently dismissed the petition,104 citing Colegrove v. Green105 and Anderson v. Jordan.106
The cause was then taken up by Shelby County, Tennessee, the state’s most populous county, and the one most aggrieved by the malapportionment. Charles Baker, the Chairman of the county legislative body, initiated suit in the United States District Court for the Middle District of Tennessee. That court rejected his challenge as non-justiciable, leading to an appeal to this Court. This Court held the issues to be justiciable and remanded to the District Court.107
102 Catalano at 76. 103 Kidd v McCandless. 292 S.W. 2d 40 (Tenn. 1956). 104 352 U.S. 920 (1956). 105 328 U.S. 549 (1946). 106 343 U.S. 912 (1952). 107 Baker, 369 U.S. at 237.

33
Decades of litigation from almost every state followed the Baker decision. A Lexis-Nexis search for political gerrymander cases nationally at all levels reveals that from 1859 through 1962 (104 years), there are as many as 54 gerrymander cases. From Baker in 1962 to Bandemer in 1986 (24 years), there are as many as 137 cases. From Bandemer in 1986 through Vieth in 2004 (18 years), there are as many as 95 cases; and from Vieth in 2004 through today (13 years), there are as many as 104 cases. VI. Fruitless search for manageable standards
By establishing in Baker that redistricting and reapportionment cases based on violations of the traditional standards may be justiciable, the Court invited a logical next step—cases asking whether partisan gerrymandering is justiciable. In 1986, this Court considered partisan gerrymandering in Bandemer v. Davis.108 After the Republicancontrolled Indiana Legislature reapportioned districts following the 1980 Census, Indiana Democrats sued arguing that the new map was a political gerrymander which disadvantaged Democrats and thus violated the Equal Protection Clause of the Fourteenth Amendment. While the majority held political gerrymandering claims were justiciable, the Court rejected the District Court’s standard for determining an equal protection violation.
Justice White, writing for the plurality said: “[W]e are not persuaded that there are no judicially discernable and manageable standards” in partisan
108 478 U.S. 109 (1986).

34
gerrymandering cases.109 Justice White proposed no discernable standard, but only posited that unconstitutional discrimination occurs when there is “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”110 These claims were justiciable, he said, but there was no standard to determine how much partisan gerrymandering is unconstitutional.
Bandemer, in the words of Justice Scalia, sent the lower courts “wandering in the wilderness” for nearly two decades.111 Without a consensus in this Court on a manageable standard, the lower courts faced partisan gerrymandering cases on an ad hoc basis with little direction. Any fears that Bandemer would open the floodgates to litigation were unfounded, because the courts refused to address the issue in the absence of real guidance.112
This Court avoided the partisan gerrymandering issue during the 1990 redistricting cycle, and between Bandemer and Vieth, only one case of political gerrymandering arose in which a court granted relief: Republican Party of North Carolina v. Hunt.113 Hunt addressed North Carolina’s method of electing its Superior Court Judges. The Fourth Circuit concluded that Republican Superior Court judicial candidates—of
109 Id. at 123. 110 Id. at 127. 111 Vieth, 541 U.S. at 303. 112 Id. at 279. 113 Republican Party of N.C. v. Hunt, 1996 U.S. App. LEXIS 2029 (4th Cir. 1996).

35
which only one had been elected since 1900— experienced a “pervasive lack of success and exclusion from the electoral process as a whole.”114 Ironically, less than a week after the decision, all Republican Superior Court judicial candidates won their respective races under the very map that the Court had declared an unconstitutional partisan gerrymander.115
The 2000 redistricting cycle provided the Court’s next opportunity to weigh in on political gerrymandering and the search for a manageable standard. The redistricting of Pennsylvania’s Congressional districts by the Republican-controlled Legislature resulted in a challenge by Democrats. The District Court held that the redrawn districts were not an unconstitutional partisan gerrymander, and the Democrats appealed. In Vieth v Jubilirer, a plurality of this Court upheld the District Court’s ruling.116
Three different standards were proposed in Vieth, all of which the plurality rejected for one reason or another:
Justice Stevens proposed using the racial gerrymandering standard from the Shaw line of cases, translating to the standard for unconstitutionality being that the only possible explanation for the district’s shape was to advantage one party over another.117 The plurality rejected this theory, noting that, while race receives strict
114 Vieth, 541 U.S. at 287. 115 Id. at 287, n.8. 116 Id. at 306. 117 Id. at 323.

36
scrutiny under the Equal Protection Clause, partisan affiliation does not require a heightened level of scrutiny.118
Justices Souter and Ginsburg proposed a five part test that would have shifted the burden to the state to justify the drawing of its districts.119 The plurality found that test inadequate because it did nothing to help courts address how much partisan gerrymandering constitutes unconstitutional partisan gerrymandering.120
Justice Breyer proposed a “spectrum of indicia of abuse” standard, laying out examples of “indicia of abuse.”121 The plurality dismissed this proposal predicting, that the standard would produce future litigation without any discernable, applicable standard.122
In LULAC v. Perry,123 Texas Democrats challenged a Republican-drawn, mid-decade redistricting map as unconstitutional partisan gerrymandering. The District Court rejected Plaintiff’s claims. While the case was on appeal to this Court, the Vieth decision was issued. This Court vacated the District Court’s order and remanded for consideration in light of Vieth.124 On remand, the District Court again rejected Plaintiff’s claims and Plaintiff again appealed to this Court.
118 Id. at 339. 119 Id. at 351-52. 120 Id. at 297. 121 Id. at 365. 122 Id. at 300-01. 123 548 U.S. 399 (2006). 124 Id. at 408.

37
The Court reviewed the District Court’s second opinion to consider whether the proposed standard was a manageable standard for evaluating partisan gerrymandering,125 and found the proposed standard lacking.
Building consensus around a standard with which to judge the constitutionality of partisan gerrymandering requires answering the question— how much partisan gerrymandering is too much—a daunting proposition no mathematical formula can address. Mathematical formulas and social science theories cannot determine what amount of partisan gerrymandering is unconstitutional because, as the Court has long recognized, some partisan motivations behind drawing districts are unavoidable and also constitutional.126 After all, “statistical models are not a substitute for thinking.”127 It is an inherently qualitative question. It is an exercise in futility to attempt to gauge an American political climate which is ever-changing and anything but static.
None of the proposed standards in Bandemer, Vieth or LULAC mustered a majority opinion. The courts have wandered through the “political thicket” in search of an elusive manageable standard for 55 years since Baker, 31 years since Bandemer, 13 years since Vieth, and 11 years since LULAC —it has yet to emerge. No standard can, in fact, emerge,
125 Id. at 399. 126 Vieth, 541 U.S. at 281-83; 299. 127 Bill Henderson, Innovation in Organizations, Part II (Jul. 23, 2017), available at http://www.legalevolution.org/2017/07/ innovation-in-organizations-part-ii-016/.

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because, ultimately, the search for a standard is the search for a quantitative answer to a qualitative question.
The Court recognized this, at least tacitly, in Evenwel v. Abbott,128 which dealt with reapportionment in a somewhat different context: Whether the population of a district should be measured by all inhabitants, or those eligible to vote, so that the votes of persons in Texas Senate Districts would have approximately the same weight. In her opinion, Justice Ginsberg noted: “What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.”129
Justice Thomas elaborated in his concurrence: The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution
128 ___ U.S. ___, 136 S. Ct. 1120 (2016). 129 Id. at 1132.

39
leaves the choice to the people alone -not to this Court.130 A fortiori, the United States Constitution does not entitle any voter to be assigned to a legislative district that consists of some made up ideal number of like-minded voters, whether Democrat, Republican, Libertarian, Green, or any other party or interest group. VII. Proportionality Any standard other than the traditional and long-articulated standards of compactness, contiguity, equality of population, and communities of interest, engages the courts in making political determinations of the proper proportion of partisans in the legislative branch. As Justice O’Conner said in Bandemer: “It is predictable that the courts [would] respond by moving away from the nebulous standard a plurality of the Court fashions today and toward some form of rough proportional representation for all political groups.”131 Any such standard fundamentally changes the nature of representation from a district-based system of representation, to an ideological- and partisan-based system. Rather than single-member districts represented by members accountable to voters therein, representation would be based on arbitrary assignment to a partisan or ideological numerator and a statewide denominator, with the elected officials receptive only to that interest group.
130 Id. at 1133 (emphasis added). 131 Bandemer, 478 U.S. at 145.

40
Furthermore, such an approach is precluded by this Court’s prior rulings. As Justice White said in the plurality opinion in Bandemer: “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.”132 As noted by Justice Kennedy in Vieth: “There is no authority for this precept.”133
The standard advanced by the law professors in the court below simply ignores reality. It requires a judge to assign individuals to legislative districts based on the judge’s calculation of the number of like-minded voters in a geographic area, so that none of their votes are “wasted.” It is naïve to assume that people’s reasons for voting for a given candidate are all the same, and never vary from election to election. It ignores the fact that many voters split their tickets. It fails to take into account independent voters, voters loyal to smaller parties (such as the Libertarian Party or the Green Party), or voters who do not vote in every election, or in every race on a given ballot. It gives no consideration to intangible qualities possessed by candidates, or major issues and events that may sweep in and cause voters to vote against their custom. It simply fails to consider that political
132 Id. at 130. 133 Vieth, 541 U.S. at 308. (Kennedy, J. concurring).

41
winds shift and the pendulum swings back and forth.134
In short, the methodology advocated in the court below is unworkable in the real world, for either legislators or the courts. The best standards of constitutionality are the traditional, common standards, e.g., compactness, contiguity, preserving natural and local government boundaries, and equality of population. These already provide Legislatures and courts more than enough factors to balance, without additional nebulous and artificial hair-splitting.135
CONCLUSION
Gerrymandering has been with us from the founding of the Republic. For over two centuries, there have been complaints made and solutions proposed and tried, yet the creature remains with us. Some gerrymanders have worked, and others have failed. Some solutions have worked, some have failed. The challengers in this case are only disgruntled because they are not the ones holding the power of the majority at the moment.
In the 55 years since Baker and the 32 years since Bandemer, the courts have struggled to find a manageable standard and have failed to do so, because no standard exists. The so-called efficiency gap is only the latest mathematical fad championed in the cause of curing gerrymanders. It suffers from
134 SEAN TRENDE, THE LOST MAJORITY (Palgrave McMillen 2012). 135 See, State ex rel. Lockert v. Crowell, 631 S.W.2d 702 (Tenn. 1982).

42
the same fundamental defect as all others: It is an arithmetic fig leaf for proportional representation. This Court has noted that “representatives don’t represent trees or cows, but people.”136 A proportionality approach relegates representation to an ideological construct, rather than the representation of actual people.
The Court should hold that the traditional standards, reflected in the Apportionment Acts, are a sufficient curb to gerrymandering, reverse the decision of the court below, and uphold Wisconsin’s redistricting plan.
Respectfully Submitted,
John L. Ryder Counsel of Record Pablo Adrian Varela Harris Shelton Hanover Walsh, PLLC 40 South Main Street, Suite 2700 Memphis, Tennessee 38103 901.545.1455 jryder@harrisshelton.com
Linda Carver Whitlow Knight Gullett Sanford Robinson & Martin, PLLC 150 Third Avenue South, Suite 1700 Nashville, TN 37201 615.244.4994
136 Reynolds, 377 U.S. at 562.

43 lknight@gsrm.com Counsel for Amici Curiae
August 3, 2017

 
 No. 16-1161
IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=

BEVERLY R. GILL, ET AL., v.

Appellants,

WILLIAM WHITFORD, ET AL., Appellees.

On Appeal From The United States District Court For The Western District Of Wisconsin

BRIEF OF THE WISCONSIN INSTITUTE FOR LAW & LIBERTY
AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

RICHARD M. ESENBERG WISCONSIN INSTITUTE FOR
LAW & LIBERTY 1139 East Knapp Street Milwaukee, WI 53202 (414) 727-9455 rick@will-law.org

DOUGLAS R. COX Counsel of Record
AMIR C. TAYRANI BRIAN M. LIPSHUTZ DAVID W. CASAZZA* GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500 dcox@gibsondunn.com

* Admitted only in New York; practicing under the supervision of principals of the firm.
Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

Table of Authorities................................................... iii
Interest of Amicus Curiae ...........................................1
Summary of Argument................................................2
Argument ..................................................................... 3
I. PARTISAN GERRYMANDERING CLAIMS ARE NOT JUSTICIABLE .....................................4
A. This Court’s Attempts To Wrestle With Political Gerrymandering Claims Provide Conflicting Precedents And Inadequate Guidance To District Courts....................5
B. The Thirteen Years Of Confusion Following This Court’s Decision In Vieth v. Jubelirer Demonstrate That No Manageable Standard Will Emerge..............................................8
C. Repeated Litigation Over Redistricting Damages The Political Process And The Courts ..........14
D. Centuries Of Historical Practice Confirm That Political Forces Temper Excesses In Partisan Redistricting And That The Constitution Does Not Empower Federal Courts To Police Partisanship ...........................................17
E. Holding Partisan Gerrymandering Claims Nonjusticiable Reaffirms The Outcome Of Vieth And Would Not Disturb Settled Precedent ..............21

ii
II. A PLAN THAT COMPLIES WITH TRADITIONAL REDISTRICTING CRITERIA IS NOT AN UNCONSTITUTIONAL POLITICAL GERRYMANDER .............................22
Conclusion .................................................................28

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Ala. Legislative Black Caucus v. Alabama, No. 2:12-cv-691, 2017 WL 378674 (M.D. Ala. Jan. 20, 2017) ............................... 15, 16

Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) .................................... 26, 27

Ala. Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285 (M.D. Ala. 2013) .................................................3, 9

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015)..........................................15

Baker v. Carr, 369 U.S. 186 (1962) ............................................4, 5

Burns v. Richardson, 384 U.S. 73 (1966)..................................................6

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ..............................................10

Cooper v. Harris, 137 S. Ct. 1455 (2017)..........................................10

Cox v. Larios, 542 U.S. 947 (2004) ..............................................10

iv
Davis v. Bandemer, 478 U.S. 109 (1986) ..........................................6, 11
Ferrell v. Hall, 406 U.S. 939 (1972) ................................................5
Ferrell v. Hall, 339 F. Supp. 73 (W.D. Okla. 1972)........................5
Fortson v. Dorsey, 379 U.S. 433 (1965) ..........................................5, 26
Gaffney v. Cummings, 412 U.S. 735 (1973) ..............................................26
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................................................5
INS v. Chadha, 462 U.S. 919 (1983) ................................................4
Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976) ................................................5
Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 68 F.R.D. 668 (S.D. Tex. 1975) ..............................5
Kerr v. Hickenlooper, 759 F.3d 1186 (10th Cir. 2014)............................17
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) .................... 7, 8, 11, 16, 26, 27

v
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ..............................................10
Miller v. Johnson, 515 U.S. 900 (1995) .................................... 2, 25, 27
Montejo v. Louisiana, 556 U.S. 778 (2009) ........................................ 21, 22
Myers v. United States, 272 U.S. 52 (1926)................................................18
Nixon v. United States, 506 U.S. 224 (1993) ................................................4
NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)..........................................17
Pearson v. Callahan, 555 U.S. 223 (2009) ........................................ 21, 22
Perez v. Texas, No. 11-CA-360, 2011 WL 9160142 (W.D. Tex. Sept. 2, 2011) .......................................9
Printz v. United States, 521 U.S. 898 (1997) ..............................................18
Radogno v. Ill. State Bd. of Elections, No. 1:11-cv-4884, 2011 WL 5868225 (N.D. Ill. Nov. 22, 2011) .....................................3, 9
Radogno v. Ill. State Bd. of Elections, No. 1:11-cv-4884, 2011 WL 5025251 (N.D. Ill. Oct. 21, 2011) ................................ 5, 8, 16

vi
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016)..................................9
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 166 F. Supp. 3d 553 (E.D.N.C. 2016) ....................9
Republican Party of N.C. v. Hunt, No. 94-2410, 1996 WL 60439 (4th Cir. Feb. 12, 1996) ........................................16
Reynolds v. Sims, 377 U.S. 533 (1964) ............................................2, 5
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) ................................................4
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)................................................22
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) ........................8
Shaw v. Reno, 509 U.S. 630 (1993) .................................. 24, 25, 27
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ..............................................18
Vieth v. Jubelirer, 541 U.S. 267 (2004) ........... 2, 3, 7, 8, 10, 14, 15, 16, ................................... 17, 21, 22, 24, 25, 26, 27, 28

vii
Wells v. Rockefeller, 398 U.S. 901 (1970) ................................................5
Wells v. Rockefeller, 311 F. Supp. 48 (S.D.N.Y. 1970)............................5
Wesberry v. Sanders, 376 U.S. 1 (1964)....................................................5
Whitcomb v. Chavis, 403 U.S. 124 (1971) ................................................6
WMCA, Inc. v. Lomenzo, 382 U.S. 4 (1965)....................................................5
WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965)..........................5
Zivotofsky v. Clinton, 566 U.S. 189 (2012) ............................................3, 4
Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015)..........................................17
Federal Constitutional Provisions
U.S. Const. art. I, § 4.................................................15
State Constitutional Provisions
Alaska Const. art. VI, § 8..........................................15
Cal. Const. art. XXI, §§ 1–3 ......................................15
Wash. Const. art. II, § 43 ..........................................15
Wis. Const. art. IV, § 3 ................................................3

viii
Wis. Const. art. IV, § 4 ..............................................23 Statutes 2 U.S.C. § 2c...............................................................15 Apportionment Act of 1842, 5 Stat. 491 ...................15 Apportionment Act of 1872, 17 Stat. 28 ...................15 Idaho Code Ann. §§ 72-1501 et seq. ..........................15 Wis. Stat. Ann. § 120.02(2) .........................................3 Proposed Legislation H.R. 145, 115th Cong., 1st Sess. (2017) ...................15 H.R. 151, 115th Cong., 1st Sess. (2017) ...................15 H.R. 711, 115th Cong., 1st Sess. (2017) ...................15 H.R. 712, 115th Cong., 1st Sess. (2017) ...................15 H.R. 713, 115th Cong., 1st Sess. (2017) ...................15 H.R. 1102, 115th Cong., 1st Sess. (2017) .................15 H.R. 3057, 115th Cong., 1st Sess. (2017) .................15 Other Authorities Peter Argersinger, All Politics Are
Local: Another Look at the 1890s, 8 J. Gilded Age & Progressive Era 7 (2009) ....................................................................20

ix
Peter Argersinger, Representation and Inequality in Late NineteenthCentury America (2012) ................................. 19, 20
Peter Argersinger, The Value of the Vote: Political Representation in the Gilded Age, 76 J. Am. Hist. 59 (1989) .................19
Michael Barone, Straight-Ticket Voting in Divided Government, in The Almanac of American Politics 2016 (Richard E. Cohen & James A. Barnes eds., 2015) ................................................12
Jacob Eisler, Partisan Gerrymandering and the Illusion of Unfairness, 67 Cath. U.L. Rev. (forthcoming 2018), https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2993876 ....................................15
Elmer Cummings Griffith, The Rise and Development of the Gerrymander (1907) ....................................................................18
Hearing on Wisconsin Redistricting Plan Before the Wisconsin Legislature, 100th Leg., Extraordinary Sess. (Wis. 2011)..........................14
Michael Klarman, The Framers’ Coup: The Making of the United States Constitution (2016) ..............................................19

x
Philip Lampi, The Federalist Party Resurgence, 1808–1816: Evidence from the New Nation Votes Database, 33 J. Early Am. Republic 255 (2013)...................18
Thomas Rogers Hunter, Hastening the Demise of Federalism in the Low Country: South Carolina’s Congressional Gerrymander of 1802, 113 S.C. Hist. Mag. 221 (2012)............................19
Nicholas R. Seabrook, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics (2017) ....................................................................12
Jesse Sussell & James A. Thomson, Are Changing Constituencies Driving Rising Polarization in the U.S. House of Representatives? (Rand 2015) ..........................................................12
David Wasserman, Purple America Has All But Disappeared, FiveThirtyEight (Mar. 8, 2017), https://fivethirtyeight.com/features/ purple-america-has-all-butdisappeared ..........................................................13

INTEREST OF AMICUS CURIAE1 The Wisconsin Institute for Law & Liberty (“WILL”) is a nonprofit organization that supports and promotes the public interest in the rule of law, individual liberty, constitutional government, and a robust civil society. WILL is an active participant in issues of public concern to the State of Wisconsin. WILL has represented plaintiffs in election law and free speech cases. Among other matters, it successfully challenged Wisconsin laws limiting aggregate campaign contributions and donations from political committees. It also obtained a favorable settlement in a challenge to a local sign ordinance. In addition, WILL’s president and general counsel testified at a joint public hearing on redistricting before the Wisconsin Legislature in 2011. WILL strives to advance the debate concerning law and public policy in these and other areas.
1 Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae states that no counsel for a party authored this brief in whole or in part and no party or counsel for a party made a monetary contribution to fund the preparation or submission of this brief. A contribution to fund the submission of this brief was made by the Freedom Partners Institute. Both Appellants and Appellees have entered consent to the filing of amicus curiae briefs on the docket.

2
SUMMARY OF ARGUMENT
“[L]egislative reapportionment is primarily a matter for legislative consideration and determination,” Reynolds v. Sims, 377 U.S. 533, 586 (1964), because “federalism and the slim judicial competence to draw district lines weigh heavily against judicial intervention in apportionment decisions,” Miller v. Johnson, 515 U.S. 900, 934–35 (1995) (Ginsburg, J., dissenting).
Despite this “slim judicial competence,” federal courts in Wisconsin have governed the State’s redistricting process since the 1980s, imposing courtordered plans in 1982, 1992, and 2002. See J.S. App. 9a–11a. The district court in this case struck down Wisconsin’s legislatively enacted redistricting plan without articulating a manageable standard for deciding claims of political gerrymandering. It found no departure from traditional redistricting principles, but it nevertheless invalidated the plan because the election results were not proportional to the statewide vote—a purely hypothetical election that Wisconsin does not hold.
As this case and others like it demonstrate, there is no law-based, workable standard for separating permissible maps from impermissible maps. Therefore, federal courts have no jurisdiction. This Court should remove any lingering uncertainty and hold that “political gerrymandering claims are nonjusticiable.” Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion).
Even if a judicially manageable standard could be devised for political gerrymandering claims, redistricting plans that adhere to traditional redistricting criteria are constitutionally permitted.

3
These traditional-criteria districts are not impermissible partisan gerrymanders, and a majority of the Justices in Vieth would have upheld such districts. See, e.g., Vieth, 541 U.S. at 306 (plurality opinion); id. at 307 (Kennedy, J., concurring in the judgment); id. at 318 (Stevens, J., dissenting); id. at 347 (Souter, J., dissenting). Striking down districts that comply with traditional redistricting criteria “would commit federal and state courts to unprecedented intervention in the American political process,” id. at 306 (Kennedy, J., concurring in the judgment), and require those courts to draw district lines for everything from Congress to the State Senate to the local school board. See, e.g., Wis. Const. art. IV, § 3 (providing for political apportionment of State Senate districts); Wis. Stat. Ann. § 120.02(2) (providing for political apportionment of school boards). This would be both unwise and unworkable.
ARGUMENT
This case provides an opportunity for this Court to clarify an area of law that has harmed the political institutions of the States and left district courts struggling to answer “unsolvable” questions, Radogno v. Ill. State Bd. of Elections, No. 1:11-cv-4884, 2011 WL 5868225, at *2 (N.D. Ill. Nov. 22, 2011) (Radogno II), by employing “unknowable” standards, Ala. Legislative Black Caucus v. Alabama, 988 F. Supp. 2d 1285, 1296 (M.D. Ala. 2013) (ALBC I).
This Court can restore the appropriate primacy of States in redistricting and spare district courts from these “unsolvable” questions by holding claims of partisan redistricting nonjusticiable. Such claims raise a political question that federal courts “lack[ ] the authority to decide.” Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). A dispute asks a political

4
question when there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Id.
The limit on the judicial power imposed by the political question doctrine is jurisdictional—a court has no power to render judgment in a dispute if there is no standard. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (“The concept of justiciability . . . expresses the jurisdictional limitations imposed upon federal courts by the ‘case or controversy’ requirement of Article III.”). The political question doctrine does not prevent courts from asserting jurisdiction merely “because the issues have political implications,” INS v. Chadha, 462 U.S. 919, 943 (1983), but it does prevent a court from usurping the prerogatives of the political branches when the constitutional basis for the claim “lacks sufficient precision to afford any judicially manageable standard of review.” Nixon v. United States, 506 U.S. 224, 230 (1993).
After more than fifty years of contending with these challenges, this Court should confirm that there is no determinable legal standard by which a court can consistently and impartially determine whether a redistricting plan is too partisan. These challenges are nonjusticiable.
I. PARTISAN GERRYMANDERING CLAIMS ARE NOT JUSTICIABLE
Since this Court entered the redistricting fray in Baker v. Carr, 369 U.S. 186 (1962), district courts have come to anticipate apportionment litigation “[l]ike a periodic comet, once every ten years.”

5
Radogno v. Ill. State Bd. of Elections, No. 1:11-cv4884, 2011 WL 5025251, at *1 (N.D. Ill. Oct. 21, 2011) (Radogno I). Despite decades of effort, courts are still unable to devise a workable standard for claims of partisan gerrymandering.
A. This Court’s Attempts To Wrestle With Political Gerrymandering Claims Provide Conflicting Precedents And Inadequate Guidance To District Courts
This Court first held that apportionment plans were susceptible to constitutional challenges in Baker v. Carr. 369 U.S. at 187. The Court also held that apportionment plans must distribute the population in roughly equivalent districts, Reynolds v. Sims, 377 U.S. 533, 568 (1964); Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964), and must not divide racial groups to “depriv[e members of one race] of the municipal franchise,” Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).
Soon thereafter, the Court was called on to decide whether the Constitution permitted politically motivated redistricting plans. Its early decisions were inconsistent. Compare WMCA, Inc. v. Lomenzo, 382 U.S. 4 (1965), summarily aff’g 238 F. Supp. 916 (S.D.N.Y. 1965) (political redistricting claim is not justiciable); Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976), summarily aff’g 68 F.R.D. 668 (S.D. Tex. 1975) (same); Ferrell v. Hall, 406 U.S. 939 (1972), summarily aff’g 339 F. Supp. 73 (W.D. Okla. 1972) (same); Wells v. Rockefeller, 398 U.S. 901 (1970), summarily aff’g 311 F. Supp. 48 (S.D.N.Y. 1970) (same), with Gaffney v. Cummings, 412 U.S. 735, 751 (1973) (adjudicating claim of political apportionment without assessing justiciability); Fortson v. Dorsey, 379 U.S. 433, 439

6
(1965) (plans that “cancel out the voting strength of . . . political elements of the voting population” are invalid); Burns v. Richardson, 384 U.S. 73, 88 (1966) (quoting Fortson); Whitcomb v. Chavis, 403 U.S. 124, 143 (1971) (same).
After years of conflicting decisions, a fractured majority of this Court held that assertions of partisan apportionment presented a justiciable question in Davis v. Bandemer, 478 U.S. 109 (1986), but neither the Bandemer Court nor any subsequent Court has been able to devise a standard for such cases.
Bandemer’s plurality opinion suggested a twopart test, with plaintiffs “required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” 478 U.S. at 127 (White, J., concurring). For the plurality, that a redistricting plan emerged from a political process was almost per se proof of discriminatory intent. Id. The plurality’s proposed test for discriminatory effect was more demanding than its intent test but less precise—the “mere lack of proportional representation” was not sufficient to prove discriminatory effect: Rather, plaintiffs had to show that the plan “consistently degrade[d] a voter’s or a group of voters’ influence on the political process as a whole.” Id. at 131–32. Justice Powell proposed an alternative standard that considered “a number of other relevant neutral factors,” including “the configurations of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of districting”— in short, traditional redistricting criteria. Id. at 162, 165 (Powell, J., concurring in part and dissenting in part).

7
Bandemer proved difficult in application. See Vieth, 541 U.S. at 283 (cataloging confusion in courts caused by Bandemer and widespread critical commentary by legal scholars).
This Court once again considered the justiciability of partisan redistricting in Vieth. The Court explicitly retreated from Bandemer, and a majority of the Justices agreed that partisan gerrymandering claims could be considered only rarely, if at all. A plurality concluded “that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.” Id. at 281. The concurrence stopped short of that conclusion. While it was not ready to “foreclose all possibility of judicial relief,” it agreed that, after nearly twenty years, no manageable standard had been identified, which “make[s] our intervention improper.” Id. at 306, 317 (Kennedy, J., concurring in the judgment). The four dissenting Justices authored three opinions, each proposing a different standard, none of which replicated the Bandemer plurality’s test.
Two years after Vieth, this Court returned to the question of political apportionment and once again failed to provide any standard. League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (LULAC). The Court observed that “disagreement persists” regarding the justiciability of political gerrymandering claims but declined to revisit Vieth. Id. at 414. None of the Court’s six opinions garnered a majority. Nevertheless, a majority of the Court agreed that the plaintiffs had not identified constitutionally flawed partisanship in the middecade redistricting plan even though the Texas legislature did “seem to have decided to redistrict with the sole purpose of achieving a Republican

8
congressional majority.” Id. at 417; see id. at 423 (plurality opinion); id. at 483 (Souter, J., concurring in part); id. at 511 (Scalia, J., concurring in the judgment in part).
B. The Thirteen Years Of Confusion Following This Court’s Decision In Vieth v. Jubelirer Demonstrate That No Manageable Standard Will Emerge
Bandemer’s legacy proved to be “one long record of puzzlement and consternation.” Vieth, 541 U.S. at 282; see also id. at 283. The plurality in Vieth took this puzzlement as proof that these cases have no workable standard, while the concurrence suggested that district courts might yet devise a workable standard once freed from Bandemer. Id. They have not done so. Instead, they struggle to apply case law that is “foggy at best,” and consists mainly of “cobbledtogether plurality opinions that place district courts in the untenable position of evaluating political gerrymandering claims without any definitive standards.” Radogno I, 2011 WL 5025251, at *4.
When last this Court considered the justiciability of partisan gerrymandering in Vieth, the plurality concluded that “[e]ighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application.” Vieth, 541 U.S. at 306. “Essentially pointless litigation” has now continued for thirteen more years. The nine opinions in Vieth and Bandemer could not identify a rule of decision with support from a majority of the Justices. Nor, as noted above, did any standard obtain a majority across the six opinions authored in LULAC.
The predictable outcome is confusion and disquiet in the lower courts. See, e.g., Shapiro v.

9
McManus, 203 F. Supp. 3d 579, 594 (D. Md. 2016) (“while political gerrymandering claims premised on the Equal Protection Clause remain justiciable in theory, it is presently unclear whether an adequate standard to assess such claims will emerge”); Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 166 F. Supp. 3d 553, 591 n.15 (E.D.N.C.) (observing the “extraordinary tension” among this Court’s partisan gerrymandering decisions), aff’d in part, 827 F.3d 333, 348 (4th Cir. 2016) (“the Supreme Court has not yet clarified when exactly partisan considerations cross the line from legitimate to unlawful”); ALBC I, 988 F. Supp. 2d at 1296 (“the standard of adjudication for [plaintiffs’] claim of partisan gerrymandering is ‘unknowable’”); Radogno II, 2011 WL 5868225, at *2 (“political gerrymandering claims . . . are currently ‘unsolvable’ based on the absence of any workable standard for addressing them”); Perez v. Texas, No. 11-CA-360, 2011 WL 9160142, at *11 (W.D. Tex. Sept. 2, 2011) (dismissing political gerrymandering claims due to the absence of “a reliable standard by which to measure the redistricting plan’s alleged burden on . . . representational rights”).
Before Vieth, “the results from one gerrymandering case to the next” proved “disparate and inconsistent.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). Vieth’s fractured outcome has itself left lower courts “ask[ing] . . . how we could ‘allow a claim to go forward that no one understands,’” ALBC I, 988 F. Supp. 2d at 1296, and the results in these cases remain “disparate and inconsistent.”
In their search for a constitutionally cognizable standard, appellees grounded their arguments below on the First Amendment and the Equal Protection

10
Clause. Neither provides a clear or appropriate standard for courts to evaluate their claims. Appellees’ First Amendment claim is unworkable because it would subject all apportionment plans to strict scrutiny as restrictions on core political speech or associational interests, McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995), which would preclude all political considerations. That is hard to square with the rule that “‘politics as usual’ is . . . itself a ‘traditional’ redistricting criterion.” Cox v. Larios, 542 U.S. 947, 952 (2004) (Scalia, J., dissenting) (citing Vieth, 541 U.S. at 285 (plurality opinion); id. at 307 (Kennedy, J., concurring in the judgment); id. at 344 (Souter, J., dissenting); id. at 355 (Breyer, J., dissenting)); see also Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (listing “partisan advantage” as a traditional redistricting criterion).
An equal protection claim similarly provides no workable standard because partisanship is neither an immutable characteristic nor a protected classification. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (classifications by race, alienage or national origin are subject to strict scrutiny). Nothing in the Equal Protection Clause requires State governments to act in a way that minimizes the political consequences of the geographic concentration of voters by party.
Appellees propose their “efficiency gap” metric in an effort to provide a purportedly neutral metric for their constitutional claims. But the “efficiency gap” is not novel and does not remedy a constitutional injury. It is based on a series of unsupported and indefensible presumptions. Judge Griesbach’s dissent detailed several of these flaws: The efficiency gap naively assumes that each marginal seat is of equal political

11
importance; it ignores the fact that “votes are meaningful, even if ‘inefficient’”; and it is based on an unsupported presumption that whenever “one party won a lot of close elections,” an unconstitutional map was to blame. J.S. App. 282a, 285a, 295a. Even setting these flaws aside, the efficiency gap cannot distinguish between election results caused by a gerrymander and election results caused by historic and unusual changes in turnout, as Wisconsin saw in 2012. J.S. App. 303a–06a.
Ultimately, the efficiency gap measure is merely a dressed-up form of the proportionality analysis that has been rejected by this Court. The efficiency gap assumes that the cumulative results of district elections ought to “track” to some unspecified degree the aggregate totals of votes for Democrat and Republican candidates statewide. Because there is no reason to presume that this will be so—voters who prefer Democrats and Republicans will not necessarily be distributed evenly across a State—the efficiency gap presupposes a new right to proportional representation. That it is proportionality in disguise is suggested by the contrived nature of its name; a lack of statewide proportionality is constitutionally “inefficient” and votes are “wasted” only if statewide proportionality is a constitutional goal.
Far from demanding proportionality, this Court has repeatedly rejected such a standard. Even the Bandemer plurality agreed that “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” 478 U.S. at 132 (White, J., concurring); see also LULAC, 548 U.S. at 419 (Kennedy, J., concurring in the judgment) (“there is no constitutional requirement of proportional representation, and equating a party’s

12
statewide share of the vote with its portion of the congressional delegation is a rough measure at best”).
Furthermore, the “efficiency gap” identified by the district court is attributable not to nefarious political gerrymandering but to changing political geography. Parties suffer large numbers of “wasted” votes because like-minded voters increasingly live in close proximity to each other. J.S. App. 307a–11a (discussing Wisconsin’s political geography); see also Michael Barone, Straight-Ticket Voting in Divided Government, in The Almanac of American Politics 2016, at 19 (Richard E. Cohen & James A. Barnes eds., 2015) (Electoral outcomes are “largely the result of demographic clustering, the fact that heavily Democratic voting groups—blacks, Hispanics (in many states) and gentry liberals—tend to be clustered in most central cities, many sympathetic suburbs and most university towns, while Republican voters are spread more evenly around the rest of the country. . . . [C]lustering helps Republicans in elections held in equal-population districts, since Democratic votes are clustered in relatively few districts and Republican votes are more evenly spread around in the rest.”); Jesse Sussell & James A. Thomson, Are Changing Constituencies Driving Rising Polarization in the U.S. House of Representatives?, at 5–8 (Rand 2015); Nicholas R. Seabrook, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics 3 (2017) (“Effects attributed to partisan gerrymandering have been consistently demonstrated in the published political science literature to have mostly emanated not from deliberate manipulation of district boundaries, but instead from the natural impact of demographics and geography.”).

13
Nationwide, in the 2016 election, 61% of voters cast ballots in counties that went at least 60-40 to one presidential candidate, up from 50% of voters living in such counties in 2012 and 39% of voters in 1992. David Wasserman, Purple America Has All But Disappeared, FiveThirtyEight (Mar. 8, 2017), https://fivethirtyeight.com/features/purple-americahas-all-but-disappeared/. In 2016, only 303 of America’s 3,113 counties were decided by a singledigit margin, while in 1992, 1,096 counties were decided by single-digit margins. Id. Over the same period, the number of counties decided by margins greater than 50 percentage points increased from 96 to 1,196. Id. Minimizing the “efficiency gap” in this rapidly changing political landscape would require legislatures to draw tortured districts in a fruitless, open-ended quest for some notion of proportional representation. Nor is there any neutral way for courts to superintend such a process or to impartially redraw districts after invalidating a politically drafted plan.
Although the district court recognized that the “efficiency gap” was a product of the geographic concentration of voters who have historically preferred Democrats, it nonetheless found that the gap was just too big. But the district court offered no standard to measure how much is too much. At most, it concluded that, even though the Wisconsin legislature respected traditional redistricting principles, it could have drawn a set of maps with a lower efficiency gap. In other words, the district court imposed on the legislature a constitutional obligation to gerrymander for competitiveness.
As technology advances, mapmakers will be able to generate, with a few keystrokes, an infinite variety

14
of potential maps that have different efficiency—or proportionality—gaps and that balance traditional redistricting principles in marginally different ways. By requiring district courts to decide how much partisan proportionality is required, the judgment below will force courts to put political considerations at the center of their decisions. But district courts are not authorized or equipped to draw sharp lines separating the constitutionally permissible from the impermissible among huge numbers of computergenerated plans. They are particularly ill-equipped to employ an “efficiency gap” standard that compels them to evaluate the extent to which a redistricting plan must ensure—or is permitted to deviate from— partisan proportionality.
C. Repeated Litigation Over Redistricting Damages The Political Process And The Courts
Judicial micromanagement of the redistricting process destabilizes the political branches. By imposing a de facto proportionality requirement, the district court’s “efficiency gap” test would undermine single-member districts. J.S. App. 276a–79a. If legislative representation must match statewide voter preferences, courts will eventually require a proportional representation system, particularly as minor-party or special-interest plaintiffs bring claims. See Joint Public Hearing on Wisconsin Redistricting Plan Before the Wisconsin Legislature, 100th Leg., Extraordinary Sess. 61 (Wis. 2011) (statement of Professor Richard Esenberg). That system will diminish electoral accountability and increase legislative gridlock as shifting coalitions transition in and out of power. See Vieth, 541 U.S. at 357–58 (Breyer, J., dissenting).

15
There is no justification for this. Voters can use the political process to restrain partisan apportionment. Vieth, 541 U.S. at 362–63 (Breyer, J., dissenting). In States where the political branches conduct apportionment, state law and electoral accountability provide a check on partisan gerrymanders. Or, if voters prefer, they can limit the legislature’s role in drawing legislative districts. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015) (upholding redistricting commission adopted through initiative process); Cal. Const. art. XXI, §§ 1–3 (establishing redistricting commission); Alaska Const. art. VI, § 8 (same); Wash. Const. art. II, § 43 (same); Idaho Code Ann. §§ 72-1501 et seq. (same). At the federal level, Congress has the authority to police apportionment of congressional districts. U.S. Const. art. I, § 4; see also 2 U.S.C. § 2c; Apportionment Act of 1842, 5 Stat. 491 (requiring the use of single-member districts); Apportionment Act of 1872, 17 Stat. 28 (requiring contiguous single-member districts of equal population). There are seven bills currently pending in Congress that propose to regulate apportionment. H.R. 3057, H.R. 1102, H.R. 713, H.R. 712, H.R. 711, H.R. 151, H.R. 145, 115th Cong., 1st Sess. (2017). And, at every level of government, elections themselves can check partisan redistricting. An overly partisan map risks spreading the dominant party’s voters too thinly, and the perception of undue partisanship may provoke an electoral backlash. See, e.g., Ala. Legislative Black Caucus v. Alabama, No. 2:12-cv-691, 2017 WL 378674, at *4 (M.D. Ala. Jan. 20, 2017) (“The 2001 partisan gerrymander [by Democrats] failed to save the Democrats in 2010, when Republicans won supermajorities in both houses.”) (ALBC III); see also Jacob Eisler, Partisan

16
Gerrymandering and the Illusion of Unfairness, 67 Cath. U.L. Rev. (forthcoming 2018), https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2993876 (arguing that “political adaptation” by voters and parties “undermines the case for litigating partisan gerrymandering”).
Political apportionment challenges also impose serious burdens on judicial resources. Redistricting litigation bursts into the federal courts at the conclusion of each Census cycle. Radogno I, 2011 WL 5025251, at *1. Mid-cycle redistricting generates further litigation. LULAC, 548 U.S. at 409–10. Nor is litigation limited to only a handful of States— apportionment lawsuits are filed across the nation. Because these lawsuits are heard by three-judge district courts and require exhaustive judicial factfinding, they impose unusually high demands on judges. See, e.g., ALBC III, 2017 WL 378674 (457page slip opinion); J.S. App. 1a–315a (116-page slip opinion).2 Apportionment challenges drag on for
2 The Vieth plurality identified a perfect example of the futile burdens these cases place on district courts. One district court in North Carolina considered 311 stipulations, 132 witness statements, and 300 exhibits, and heard two days of oral argument, before concluding that the State’s system of statewide election of superior court judges “resulted in Republican candidates experiencing a consistent and pervasive lack of success and exclusion from the electoral process as a whole” and that “these effects were likely to continue unabated into the future.” Republican Party of N.C. v. Hunt, No. 94-2410, 1996 WL 60439, at *1 (4th Cir. Feb. 12, 1996). Five days after the district court’s ruling, every Republican candidate running for superior court under that same electoral system prevailed. Vieth, 541 U.S. at 287 n.8. The circuit court remanded for reconsideration. Id.

17
years, often reaching resolution only as the next Census approaches.
A fractured result, as in Bandemer and Vieth, affirming the decision below would continue to place district courts in “litigation limbo,” condemning them to “many more years wrestling with [these cases] all without a wisp of an idea what rule of law might govern [their] disposition.” Kerr v. Hickenlooper, 759 F.3d 1186, 1195 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc). Recognizing that these questions are nonjusticiable would acknowledge the reality of redistricting and relieve the courts and the political branches of these harms.
D. Centuries Of Historical Practice Confirm That Political Forces Temper Excesses In Partisan Redistricting And That The Constitution Does Not Empower Federal Courts To Police Partisanship
Partisan considerations have influenced redistricting throughout American history. And, as noted above, Americans have traditionally understood that elections, not courts, provide the most effective check on partisan apportionment. Because the political branches conduct redistricting, the process has always reflected political interests. See Vieth, 541 U.S. at 275 (plurality opinion).
When this Court considers questions of federalism and the separation of powers, it places “significant weight upon historical practice.” NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014); see also Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091 (2015) (“In separation-of-powers cases this Court has often ‘put

18
significant weight upon historical practice.’” (quoting Noel Canning, 134 S. Ct. at 2559)); Printz v. United States, 521 U.S. 898, 905 (1997) (“contemporaneous legislative exposition of the Constitution . . . , acquiesced in for a long term of years, fixes the construction to be given its provisions” (quoting Myers v. United States, 272 U.S. 52, 175 (1926))); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327–28 (1936) (“A legislative practice such as we have here, evidenced not by only occasional instances, but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice.”).
America’s most famous instance of partisan redistricting took place in 1812, when Massachusetts Republicans devised a map so aggressive that it led critics to coin a new term—“Gerrymandering”—a portmanteau of Governor Elbridge Gerry’s name and the stylized salamander that one of his districts was said to resemble. Philip Lampi, The Federalist Party Resurgence, 1808–1816: Evidence from the New Nation Votes Database, 33 J. Early Am. Republic 255, 262 (2013). The Republican map left Federalists with only eleven of forty senate seats (27%) despite winning 51% of the statewide vote. Id.
Although memorable, Governor Gerry’s salamander was far from alone. Legislatures have drawn districts influenced by partisan considerations throughout American history. District boundaries drawn by the Founding generation often displayed partisan influence. See, e.g., Elmer Cummings Griffith, The Rise and Development of the Gerrymander 61 (1907) (observing that “the principles of the gerrymander were well known and used” in the

19
Founding era); id. at 24–30, 42–118 (describing prerevolutionary gerrymanders in Pennsylvania, New York, and Virginia); Thomas Rogers Hunter, Hastening the Demise of Federalism in the Low Country: South Carolina’s Congressional Gerrymander of 1802, 113 S.C. Hist. Mag. 221, 222, 241–55 (2012) (describing gerrymandering of colonial assembly districts in 1690 and of congressional districts in the early republic); Lampi, supra, at 258. In fact, ratification of the Constitution itself may have occurred only because of gerrymandering in favor of low country planters in South Carolina’s Assembly and ratifying convention. Michael Klarman, The Framers’ Coup: The Making of the United States Constitution 451 (2016). The history of post-Civil War politics belies any suggestion that the Fourteenth Amendment forbids partisan considerations in redistricting. See, e.g., Peter Argersinger, The Value of the Vote: Political Representation in the Gilded Age, 76 J. Am. Hist. 59, 66 (1989) (recounting that Democrats designed Ohio’s 1890 congressional districts to secure a majority of seats with a minority of the statewide vote); Peter Argersinger, Representation and Inequality in Late NineteenthCentury America 310–16 (2012) (noting similar tactics employed by both parties in Michigan, Illinois, Iowa, Indiana and Wisconsin in the 1880s and 1890s).
Centuries of history also show that political forces themselves impose the most effective restraints on partisan redistricting. See Seabrook, supra, at 9, 12– 20, 25–32 (detailing the significant political constraints that discourage partisan gerrymandering and dampen its effects over time). First, a party that seeks to maximize the number of seats it holds also necessarily diminishes its expected margin of victory in each race. A slight change in the political temper

20

can produce dramatic changes when the formerly dominant party has traded comfortable margins of victory for the chance to win more seats. Second, a party perceived as seeking power through redistricting may alienate voters and mobilize the opposition party.

The risk of setting the margins too thin was

demonstrated after the 1891 reapportionment. In

power after victories in the early 1890s, Democrats

drew districts they expected to win narrowly. But

they diluted their votes too much. When the party’s

popularity waned in 1894, more than 110

congressional seats switched from Democrat to

Republican control. Peter Argersinger, All Politics

Are Local: Another Look at the 1890s, 8 J. Gilded Age

& Progressive Era 7, 21–22 (2009). In Indiana,

Illinois, Michigan, and Wisconsin, not a single

Democrat was elected to Congress, even though

Democrat majorities in all but Indiana had drawn

maps to favor their party.

Argersinger,

Representation and Inequality, supra, at 270–72. As

one Michigan reporter observed, “[t]he Democratic

gerrymander of ’91 has given the Republicans every

district in the state.” Argersinger, All Politics Are

Local, supra, at 21 (quoting Detroit Evening News,

Apr. 10, 1895). The political hazards of the

gerrymander were also made clear by Elbridge Gerry

himself, whose infamous redistricting caused such an

uproar that he lost reelection to the governorship even

as his party won 73% of the seats in the state senate.

Lampi, supra, at 262.

The uninterrupted history of partisan considerations in redistricting—including shortly after ratification of the First and Fourteenth Amendments—strongly suggests that the

21
Constitution does not authorize federal courts to police partisan redistricting. These centuries of historical practice instead suggest that effective supervision of partisanship comes through the ballot box, not the courtroom.
E. Holding Partisan Gerrymandering Claims Nonjusticiable Reaffirms The Outcome Of Vieth And Would Not Disturb Settled Precedent
In Vieth, the entire Court declined to follow the plurality’s standard in Bandemer. A plurality of four Justices concluded “that Bandemer was wrongly decided,” Vieth, 541 U.S. at 281, while Justice Kennedy joined the judgment, noting “the shortcomings” of Bandemer and observing that the Court’s inability to describe a standard “make[s] our intervention improper,” id. at 308, 316 (Kennedy, J., concurring in the judgment).
To the extent that Vieth arguably left open the slender possibility that some partisan gerrymandering cases may be justiciable, stare decisis is no barrier to this Court’s holding that they are nonjusticiable. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U.S. 778, 792–93 (2009). This Court also considers whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555 U.S. 223, 233 (2009).
None of these factors counsels in favor of the justiciability of partisan gerrymandering claims, for substantially the same reasons that the Court

22
abrogated Bandemer in Vieth. First, there is no workable test to disturb. See supra Section I.B. This Court has not hesitated to overturn fractured decisions that “creat[e] confusion among the lower courts,” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996), or that contain no test at all, see Vieth, 541 U.S. at 305–06 (plurality opinion) (noting the Bandemer “majority’s inability to enunciate the judicially discernible and manageable standard that it thought existed”). Second, the decision in Vieth is only thirteen years old, which is younger than other decisions that this Court has overturned. See, e.g., Montejo, 556 U.S. at 793 (overturning a decision that was “only two decades old”). Third, the reliance interests are “weak because it is hard to imagine how any action taken in reliance upon [the decision] could conceivably be frustrated—except the bringing of lawsuits, which is not the sort of primary conduct that is relevant.” Vieth, 541 U.S. at 306 (plurality opinion). Fourth, the fractured nature of the decision means that there is no concern with overturning a wellreasoned majority opinion. Cf. Seminole Tribe, 517 U.S. at 66 (calling a decision “of questionable precedential value, largely because a majority of this Court expressly disagreed with the rationale of the plurality”). Finally, thirteen years of confusion in the district courts have “pointed up the precedent’s shortcomings.” Pearson, 555 U.S. at 233; see supra Section I.B. The Court should hold that assertions of partisan gerrymandering are not justiciable.
II. A PLAN THAT COMPLIES WITH TRADITIONAL REDISTRICTING CRITERIA IS NOT AN UNCONSTITUTIONAL POLITICAL GERRYMANDER
If the Court holds that political gerrymandering claims are justiciable, it should also impose a

23
commonsense limitation on such claims: A district is not an unconstitutional partisan gerrymander when it complies with traditional redistricting criteria. For example, the majority party in the legislature might draw a district that it hopes will favor its constituency in the next election, but the map also might include only compact, contiguous districts that respect political subdivisions and communities of interest. See Wis. Const. art. IV, § 4 (“such districts [are] to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable”).
The district court reached the opposite conclusion, holding that an unconstitutional gerrymander occurred even though, as the dissent observed, “the plaintiffs did not argue that Act 43 created any districts with unusual shapes or lines” and did not show any “appreciable problems with contiguity, compactness, or regard for political boundaries.” J.S. App. 251a. The district court’s reasoning ignores the consensus on this issue in Vieth and the logic of this Court’s other gerrymandering cases.
Even though the Court agreed on little in Vieth, all but one Justice endorsed an approach that upholds districts that comply with traditional redistricting criteria. The plurality would not have allowed any political gerrymandering challenges, which means that they would not have struck down a district that complied with traditional redistricting criteria. Three of the four dissenters—who agreed on little else— made clear that they would uphold districts that complied with traditional redistricting criteria. Justice Stevens would have held a district unconstitutional only “when any pretense of neutrality is forsaken unabashedly and all traditional

24
districting criteria are subverted for partisan advantage.” Vieth, 541 U.S. at 318 (Stevens, J., dissenting); see also id. at 335 (“We have explained that ‘traditional principles[ ]’ . . . ‘may serve to defeat a claim that a district has been gerrymandered on racial lines.’” (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993))); id. at 339 (“[I]f no neutral criterion can be identified to justify the lines drawn . . . then no rational basis exists to save the district from an equal protection challenge.”).
Justice Souter, joined by Justice Ginsburg, proposed a five-part prima facie case that a plaintiff must make, including that “the district of his residence paid little or no heed to . . . traditional districting principles.” Vieth, 541 U.S. at 347–48 (Souter, J., dissenting) (citation omitted); see also id. at 349 (plaintiffs must “establish specific correlations between the district’s deviations from traditional districting principles and the distribution of the population” and “present the court with a hypothetical district” that “deviate[s] less from traditional districting principles than the actual district”).
Justice Kennedy’s concurring opinion also suggests that a district that complies with traditional redistricting criteria is constitutional. He stated that “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307. Under this test, a district that complies with traditional redistricting criteria would pass muster because it would be “[r]elated to [ ] legitimate legislative

25
objective[s].” Thus, as the dissent noted below, all but one of the opinions in Vieth would have agreed that a district that complies with traditional redistricting criteria is not an unconstitutional political gerrymander. J.S. App. 252a–258a.
This consensus accords with the Court’s reasoning in racial gerrymandering cases, in which there is a presumption of validity when districts comply with traditional redistricting criteria. Three factors “requir[e] courts to exercise extraordinary caution,” Miller, 515 U.S. at 916, in gerrymandering cases that turn on indirect proof of alleged discriminatory effect. First, “[e]lectoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests.” Id. at 915; see also id. at 916 (referring to “the sensitive nature of redistricting”). Second, this Court has recognized a “presumption of good faith that must be accorded legislative enactments.” Id. at 916. Third, there is an “evidentiary difficulty” in establishing whether a legislature was motivated by impermissible considerations or was merely aware of them. Id.; see also Shaw, 509 U.S. at 646 (referring to the “difficulty of proof”). These same factors favor “extraordinary caution” in partisan gerrymandering cases. See Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment) (affording “judicial relief” in political gerrymandering cases only “if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases” (emphasis added)).
The district court in this case abandoned the restraint counseled by this Court. The majority concluded that “[i]t is entirely possible to conform to

26
legitimate redistricting purposes but still violate the Fourteenth Amendment because the discriminatory action is an operative factor in choosing the plan.” J.S. App. 120a. In reaching this conclusion, it relied primarily on inapposite dicta from Fortson v. Dorsey, 379 U.S. 433 (1965), and Gaffney v. Cummings, 412 U.S. 735 (1973), which were one-person, one-vote cases. But holdings in one-person, one-vote cases provide no guidance on the significance of traditional redistricting criteria because “an equal population goal . . . is part of the redistricting background,” not a traditional redistricting principle. Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1270 (2015) (ALBC II). As a result, these cases do not resolve whether compliance with traditional redistricting principles is sufficient to defeat a claim of political gerrymandering.
If compliance with traditional redistricting criteria is not a limit on political gerrymandering claims, then courts will be propelled deep into the political process. As noted above, passing upon the constitutionality of district maps when confronted with thousands of options that all comply with traditional redistricting criteria will force courts to decide how much partisanship is too much—a subjective political judgment. And a legislature that was impermissibly partisan—however that is defined—when it drew the initial map likely will remain impermissibly partisan when a court orders it to draw a new one. If so, courts will end up drawing more plans themselves and shouldering “the difficulties . . . in drawing a map that is fair and rational.” LULAC, 548 U.S. at 415. These tasks will further burden the district courts in an area where this Court has already expressed doubts about manageability. See, e.g., Vieth, 541 U.S. at 307–08

27
(Kennedy, J., concurring in the judgment) (noting the risk for the courts of “assuming political, not legal, responsibility for a process that often produces ill will and distrust”); see also supra Section I.C.
Redistricting by a legislature has always been an unavoidably political process. Vieth, 541 U.S. at 274 (plurality opinion); see also ALBC II, 135 S. Ct. at 1270 (listing “political affiliation” as a traditional redistricting criterion); Vieth, 541 U.S. at 360 (Breyer, J., dissenting) (“[T]raditional or historically based boundaries are not, and should not be, ‘politics free.’”); Shaw, 509 U.S. at 646 (noting that the legislature “is aware of . . . political persuasion” when it redistricts). What history has sanctioned, modern thought has ratified. “[D]rawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican selfgovernance.” LULAC, 548 U.S. at 416. And “purely political boundary-drawing, even where harmful to the members of one party, will often nonetheless find justification in other desirable democratic ends, such as maintaining relatively stable legislatures in which a minority party retains significant representation.” Vieth, 541 U.S. at 360 (Breyer, J., dissenting).
Because of the political nature of redistricting and the limited role of our federal judiciary, courts cannot plausibly require the legislature to redraw every politically motivated district. “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to an unprecedented intervention in the American political process.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment); see also Miller, 515 U.S. at 916 (recognizing “the intrusive potential of judicial intervention into the legislative

28

realm”). The task of the courts—if these claims are deemed somehow justiciable, see supra Section I—is to regulate political gerrymanders in which “legislative restraint was abandoned.” Vieth, 541 U.S. at 316 (Kennedy, J., concurring in the judgment). Restraint has not been abandoned when traditional redistricting principles are observed.

CONCLUSION

The Court should put an end to the confusion in the district courts by vacating the judgment and holding that political gerrymandering claims are nonjusticiable. At the very least, the Court should make clear that a district that complies with traditional redistricting criteria cannot be an unconstitutional partisan gerrymander.

Respectfully submitted,

RICHARD M. ESENBERG WISCONSIN INSTITUTE FOR
LAW & LIBERTY 1139 East Knapp Street Milwaukee, WI 53202 (414) 727-9455 rick@will-law.org

DOUGLAS R. COX Counsel of Record
AMIR C. TAYRANI BRIAN M. LIPSHUTZ DAVID W. CASAZZA* GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 955-8500 dcox@gibsondunn.com

* Admitted only in New York; practicing under the supervision of principals of the firm.

Counsel for Amicus Curiae

August 4, 2017

 
 No. 16-1161
In the
Supreme Court of the United States

BEVERLY R. GILL, et al., Appellants,
v. WILLIAM WHITFORD, et al.,
Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICI CURIAE THE MAJORITY LEADER AND TEMPORARY PRESIDENT OF THE NEW YORK STATE SENATE AND MEMBERS OF
THE MAJORITY COALITION IN SUPPORT OF THE APPELLANTS

David L. Lewis Counsel of Record
Lewis and Fiore, Esqs. 225 Broadway, Suite 3300 New York, New York 10007 (212) 285-2290 dlewis@lewisandfiore.com
Counsel for Amici Curiae

274453

A
(800) 274-3321 • (800) 359-6859

i
TABLE OF CONTENTS
Page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . .  iii
STATEMENT OF THE INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT  . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The Efficiency Gap Is Of No Utility In Measurement Of Partisanship In Any Authentic Political System Which Functions In Coalition As In The New York State Senate . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. The Use Of A Gross Political Vote As A Measurement As To Single Member Winner-Take-All Elections Is A Dangerous And False Measurement In Objective Reality . . . . . . . . . . . . . . . . . . . . 9
B. A State House That Governs In Coalition Between And Among Parties Voids The Presumptions In The District Court Opinion . . . . . . . . . . . . . . . . . . . . . . . . 15

ii
Table of Contents
Page
C. M i nor Pa r t y Vot e s W h ich A r e Decisive In Close Elections In The New York State Senate A re Excluded From The Wisconsin Social Science Model . . . . . . . . . . . . . . . . . . . . . . . .  17
II. Redistricting Of State Legislature Will End Up Being Endlessly Micro Managed By The Federal Courts Based Upon A Claim Of Political Partisanship Given That It Undermines Traditional Redistricting Standards  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii

TABLE OF CITED AUTHORITIES CASES

Page

Ala. Leg. Black Caucus v. Alabama, 134 S. Ct. 1257 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Baker v. Carr, 369 U.S. 186 (1962)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Chapman v. Meier 420 U.S. 1 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Davis v. Bandemer, 478 U.S. 109 (1986)  . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 13

Favors v. Cuomo, 2014 WL 2154871 (E.D.N.Y. 2014), modified, 2014 WL 3734378 (E.D.N.Y. July 28, 2014) . . 3, 19, 20, 22

Gaffney v. Cummings, 412 U.S. 735 (1973)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Growe v. Emison, 507 U.S. 25 (1993)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . 6, 11, 12, 19

Loeber v. Spargo, 391 Fed. Appx. 55 (2d Cir. 2010)  . . . . . . . . . . . . . . . . 21

iv
Cited Authorities Page
Miller v. Johnson, 515 U.S. 900 (1995)  . . . . . . . . . . . . . . . . . . . . . . . . 14, 20
Ste. Marie v. Eastern R. R. Ass’n, 650 F.2d 395 (2d Cir. 1981) . . . . . . . . . . . . . . . . . . . . . 12
Vieth v. Jubelier, 541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . . . . . . passim
Whitford v. Gill, 218 F. Supp. 3d 837 . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 15
CONSTITUTIONAL PROVISIONS
U.S. Const. art. IV sec. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1
STATEMENT OF THE INTEREST OF AMICI CURIAE
The New York State Senate is the upper house of New York’s bicameral system. In the last seven years it has functioned in a variety of bipartisan coalition models. Currently the Majority Coalition is comprised of the Republican Party’s elected representatives and one individual elected Democratic Party Senator, all of whom caucus together as the Republican Conference which governs in coalition with a group of eight Democratic Party senators functioning as the Independent Democratic Conference. Together this Majority Coalition, the Republican Conference and the Independent Democratic Conference, comprise the working controlling numerical majority of members. The Majority Coalition has governed the State Senate in terms of practice and policy and in turn has governed New York State in partnership with the Democratic Governor and the New York State Assembly, which the Democratic Party dominates.
Senator John J. Flanagan, a Republican is elected by vote of the Senate to be the Temporary President of the New York State Senate. He also is elected by fellow Republicans as the Majority Leader of the Republican Conference of the State Senate.1 Senator Jeff Klein is the Leader of the Independent Democratic Conference.
1.  No party’s counsel authored any part of this brief. No person other than the amici curiae made a monetary contribution intended to fund the preparation of this brief. Each party has represented that they have filed with the Court blanket consents to the filing of amicus curiae briefs in support of either party or neither party.

2
New York has two major parties, Democratic and Republican. The ballot also carries minor party candidates for offices of the Conservative, Independence, Reform, Green, Women’s Equality and Working Families Parties. Each party has its own rules for the nomination, designation and endorsement of its candidates. Party identification qualifies to vote in only that party’s non-open party primary elections. Voters may register as “Blank” indicating no party preference, depriving them, only, of a vote in any New York primary election. Local Senate races often include participation by additional and other parties accorded additional ballot lines established from election to election based upon highly localized issues such as lowering property taxes. Senators often are elected by the participation and votes of what are called these minor parties, either affirmatively when the candidate is on the ballot line or by drawing votes from a major party candidate when they fail to secure a minor party’s endorsement.
Each State Senator serves districts mapped out by the process of redistricting. Given that the ballot cast by each voter is secret, Senators extend their services to their constituents without regard to political party. Voters cast their ballots, especially in local elections, for reasons other than pure party identification. Such reasons include candidate visibility and access, receiving constituent services, reach out programs, informational events, participation in the community, candidate personality, policy issues, socio-economic status, race, economic beliefs as well as party identification.
Adopting the social science two party based metric as accepted by the lower court would upend New York’s

3
previously court sanctioned redistricting method. New York would be found to be engaged in “partisan gerrymandering” along with 35 other states. Similarly, an efficiency gap of greater than 10% was found in New York and eleven other states.
The Senate redistricting map, using the traditional redistricting principles, meets all the requirements for constitutional redistricting. See, Favors v. Cuomo, 2014 WL 2154871(E.D.N.Y. 2014) modified, 2014 WL 3734378 (E.D.N.Y. July 28, 2014).
The district court process would eliminate the very bipartisan New York Majority Coalition that the district court is trying to impose in Wisconsin. Upholding the district court, regarding political gerrymandering by formula, will directly eliminate the coalition governing the New York State Senate and create the inevitable harm of ending bipartisanship, rather than cure it.
SUMMARY OF THE ARGUMENT
The district court failed to identify or adopt a limited and precise workable standard that would be judicially manageable to determine the existence of a partisan gerrymandering such that could be identified as rising to the level of being unconstitutional. The district court held that any social science theory in effect will support a finding of partisan redistricting if it contains a claim to be able to measure of partisan asymmetry or consists of any particular technique for demonstrating the durability of the partisanship including an “efficiency gap” or other methods from recent conceptual and methodological advances in social sciences. The formula fails to take

4
into account vital elements of traditional redistricting, as well as actual voting patterns, which one cannot discern as party identification driven. It predicates its finding on a false equivalency of state-wide totals as providing measures for individual districts. Further, it presumes that partisan symmetry state-wide is a value in redistricting. The validity of the test is only measurable in retrospect after an election and by ignoring all realitybased variables that go into an election.
The New York State Senate is governed by a multiparty, multi-member coalition. As proffered, the district court’s appeal to general social sciences matrices fails to account for a legislative coalition government as exists in the State Senate. Such a legislative coalition, transcending partisanship, cannot be measured by state-wide vote totals from legislative races. The use of a state-wide vote totals as a variable to “compare” the number of seats in the state legislature with state-wide vote totals erases voter preferences for particular candidates in particular districts based upon voter specific reasons. Ignoring the actual district by district vote for specific individuals undermines the basis of actual one person one vote jurisprudence. Perniciously, the test advances the concept of “wasted” votes, an anathema in a Republican democracy. In a representative democracy, no vote is wasted because legislators represent all their constituents. It ignores the variables of actual political representation by exalting shifting social science tests over traditional redistricting principles.
The test fails to give weight to the votes of minor parties whose vote totals provide margins of victory for state legislators in close races. The total state-wide races

5
of major parties do not include state-wide minor parties or the highly localized issue-based minor parties.
The proposal by the district court is fundamentally incompatible with the traditional redistricting principles that has governed the process for the last 55 years after Baker v. Carr, 369 U.S. 186 (1962). The district court determination would ensure that the federal courts will be intimately involved in the drawing of the state legislative lines, rather than allowing traditional redistricting principles to govern and thereby plunging each court into the picking of winners and losers by drawing the states’ legislative lines itself.
ARGUMENT
Introduction
This Court first asserted that in state legislative redistricting, a claim of partisan gerrymandering was justiciable more than thirty years ago in Davis v. Bandemer, 478 U.S. 109,143 (1986) (plurality opinion). In 2004, this Court re visited the intractable issue in Vieth v. Jubelier, 541 U.S. 267 (2004) and agreed that such a phenomenon existed, but divided sharply on the justiciability of partisan gerrymandering claims, producing no standard or guidance for lower courts faced with the claim.
Vieth held unanimously that excessive partisanship in redistricting is unconstitutional. The four justice plurality acknowledged that excessive partisanship in redistricting offends the Constitution - and is therefore “unlawful” and also that the “excessive injection of politics” into the

6
redistricting process is fundamentally “[incompatible] with democratic principles.” 541 U.S. at 292-93 (plurality opinion). In his concurrence, Justice Kennedy agreed that “[a]llegations of unconstitutional bias in apportionment are most serious claims,” explaining that severe partisan gerrymanders impose burdens “on the representational rights of voters and parties.” Id. at 311-13 (Kennedy, J., concurring in the judgment). The four dissenters likewise agreed that partisan gerrymandering is unconstitutional. See Id. at 317-18 (Stevens, J., dissenting) (“The concept of equal justice under law requires the State to govern impartially[, and] … partisan gerrymanders that are devoid of any rational justification … cannot be said to [be] impartial[].”); id. at 343 (Souter, J., dissenting) (explaining that “the guarantee of equal protection condemns [some forms of partisan gerrymandering] as a denial of substantial equality”); id. at 355 (Breyer, J., dissenting) (“The use of purely political considerations in drawing district boundaries is not a ‘necessary evil’ that … the Constitution inevitably must tolerate.”). The Court, however, was unable to agree on a standard by which partisan gerrymandering claims should be adjudicated to determine what is or is not unconstitutional in the drawing of state legislative lines.
Thereafter, regarding congressional line drawing, this Court in League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006) generated six opinions with a majority of the Court held that no identifiable constitutional flaw existed even with the seeming determination of the Texas legislature to redistrict midterm with the sole purpose of achieving a Republican congressional majority. Id. at 417, see id. at 423 (plurality opinion), id. at 483 (Souter, J., concurring in part) id. at 511 (Scalia, J., concurring in the judgment in part).

7
Regarding state legislative redistricting, the Vieth court explicitly found that no judicially discernible and manageable standards exist for adjudicating claims of political gerrymandering have emerged. Id., 541 U.S. 267, 281. That finding remains true at this writing.
Into this intractable thicket, the district court in Wisconsin purports to have found the alchemical Philosophers Stone, which has otherwise eluded every other court. The majority opinion held that a state redistricting plan violates the First Amendment and the Equal Protection Clause when it is (1)“intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation”: (2) “ha[d] that effect”; and (3) “cannot be justified on other legitimate grounds. Whitford v. Gill, 218 F.Supp.3d 837, 884 (W.D. Wisc. 2017) (three judge court) The court based both the intent and effects prongs of this test around the concept of entrenchment, the notion that the map drawing party is likely to remain in power for the entire decennial period. The district court utilized a metric labelled the “efficiency gap” (EG) calling it “corroborative evidence of an aggressive partisan gerrymander.” Whitford, 218 F. Supp. 3d at 910.
The EG is has not been peer-reviewed or otherwise validated. It rests on a supposition as to how districts should be drawn in a two party model with voters adhering rigorously to partisanship allegiances over the subsequent decade. The test seeks to measure partisanship by the use of state-wide vote totals of the two major political parties. The test is premised upon the comparison of individual legislative seats to statewide votes. The EG seeks to measure the difference between state-wide votes for state

8
legislative seats from one political party compared to the actual percentage of seats held, as in a parliamentary election. No other court has required that the seats that a party’s candidates win be proportional to the party’s state-wide totals. No court should so hold now, given that single member districts and winner take all elections are the norm in state legislative elections.
The EG is predicated on the concept of a “wasted vote”, a contrivance. It posits that a votes are “wasted” when votes are not “properly distributed.” A vote is purportedly “wasted” when it is either a vote for a candidate who does not win the election or it is a vote that is surplus, cast for a winning candidate in excess of the simple majority needed to win a two party race, any vote in excess of 50% of the vote plus one. The EG is calculated by dividing the “wasted” votes for each party in an election by the overall votes cast in that election. The percentage difference is the EG. The Appellees posit further that any EG above 7% will continue to favor the party it benefits for the life of the plan, decennially, for example, in New York State. The EG equates this with a measurement of favoritism that serves to lock out a political party from holding a majority in the legislative body even if there is a huge swing in state-wide vote share. Whitford, Id. at 886-7.
The district court’s standard and methodology fail to comport with the realities of political decision making by voters, elected officials and exalts a false value more appropriate for a parliamentary system than a republican form of government. U.S. Const. art. IV sec. 4.

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I. The Efficiency Gap Is Of No Utility In Measurement Of Partisanship In Any Authentic Political System Which Functions In Coalition As In The New York State Senate
A. The Use Of A Gross Political Vote As A Measurement As To Single Member WinnerTake-All Elections Is A Dangerous And False Measurement In Objective Reality
The elusive quest for a workable standard that is limited and precise cannot be solved by the district court decision. The district court’s use of social science misses the key point that the political process is not limited to winning elections. See, Bandemer, 478 U.S. at 132. The standard that the district court uses a purported metric that is itself unreliable and undefinable. The observation of reliable and regular phenomenon is fundamental to accurate social science. The EG makes no effort to control for or assess voter decision making, party factionalism and individual ranges of beliefs within voters and their application to a particular candidate. In multi-candidate, multi-office ballots there is ample evidence of ticket splitting which demonstrates that a vote for a candidate or a party does not directly or indirectly reflect a preference for every Democratic or Republican candidate state-wide across the state. The EG wholly ignores the local electoral issues that drive the outcomes in local ballot races.
The district court’s test to determine partisanship requires acceptance of a faulty major premise to anchor its determination. The district court measured partisanship by the use of state-wide vote totals of the two major political parties. The major premise is that redistricting

10
demands that the proportion of state-wide votes for major party’s candidates should match the proportion of legislative seats.
This premise is nowhere applicable to the conduct of representative government. A cast vote is not necessarily identification with a party and is not a correlative of partisanship. Using partisan affiliation is an eel-like measurement, given that voters ticket split, change political parties affiliation either by public registration or by secret ballot, over the cycle of the census in significant numbers. Voters clearly change political party loyalties from election to election predicated upon personal experiences, political views, public or private missteps, individual candidates and specific hot button issues.
The social science metrics fail to permit conformance with constitutional norms for its redistricting by requiring that any political party should receive a specific number of seats or a projection of party voting strength from aggregate numbers. There is no basis for such correlation with partisanship except as it related to pure political party identification by voting. It would be as if a party in this Court would win her suit based not on the number of Justices who are in the majority, but on the overall number of federal judges in the aggregate who agreed with that party.
It cannot guarantee the outcomes of an election based on voter choices, so it could be recalculated after every election and be the predicate for a challenge to the district lines every two years in New York after each election cycle. The social science does not have the value of fixed numbers as provided by Census Bureau data.

11
The test asserts an undefinable standard predicated upon methodology that is outcome driven. The system adopted by the district court has no controls for actual variables in local elections. It devalues actual voters’ actual decision making by asserting what party should win district by district and belittling the actual votes that it purports to protect and measure. The inference that a vote for a candidate or a party directly reflects a preference for every Democrat or Republican state-wide across the state is misbegotten. The test also infers that the individual voter acts out of a desire for that particular party to achieve state-wide gains is likewise misbegotten, in a state that has long had divided government between houses of the legislature and between the governor and one house of the legislature. The gap between major political parties’ representation in the Senate is closer than the state-wide vote gap, which is what aids in the creation of coalition government. Where the voters have determined that they wish a divided government by keeping the New York State Senate politically closely divided, the EG and the social science, if applied to the New York State Senate, would be skewed, based solely on the fact that Republicans hold a narrow majority, it would ironically show greater evidence of a partisan effect than a broad majority and it would likewise show entrenchment on the basis of a narrow and close number of votes, despite the fact that voters of all parties re-elect incumbents based as much on performance as on partisanship.
Even in a perfect two party ideal state, it is “no more than a rough measure at best”. See, L.U.L.A.C., 548 U.S. at 419 (opinion by Kennedy, J.). The EG is a concept of no practical use in any state except to allow a federal court to pick winners and losers in races for the state legislators.

12
See, Vieth, 541 U.S. at 308-309 (Kennedy, J. concurring). It is fallacious to maintain that an endless gaze at a set of raw numbers permits a court to determine a valid etiology of complex social phenomena. Even strong statistical correlation between variables does not automatically establish causation. Ste. Marie v. Eastern R. R. Ass’n, 650 F.2d 395, 400 (2d Cir. 1981) (Friendly, J.).
Fundamentally the EG seeks to recognize “group” based rights anchored to political party identification. Such identification by the vote in election cycles still remain both elusive and fluid from election to election, from candidate to candidate and issue to issue. Such a “group” based rights concept in the area of vote dilution has been rejected on the basis that vote dilution is individual and a claim not available to a political party. L.U.L.A.C., 548 U.S. at 437. There is no authority for this “value,” especially in New York where the experience in the State of New York has been shifts in control within districting periods that the EG denies could occur.
There is no state-wide party that has the authority to select candidates for individual districts. Parties are organized by each of the 62 counties in New York State with state wide party committees playing different roles once the party has selected a nominee either by primary or by a non-opposed petition. Elections for the State Legislature are single member district based. Candidates for the Senate and other local offices petition to get placed on the ballot as the nominee of their party. Party endorsed candidates do lose primary elections demonstrating that the state-wide party has no control over local candidates. The Conferences and the Coalition is an aggregation of elected members identified as district-based or county

13
based party candidates and political affiliations evidenced from the ballot at the last election.
Voters vote for candidates in their districts, on the basis of individual assessment of the candidate and the political options and not for a state-wide slate of legislative candidates put forward by the parties. Bandemer, 478 U.S. at 159 (O’Connor, J., concurring). Local legislators serve all constituents and not those of one party but their attendance at functions, distributions of information, constituent services in dealing with recalcitrant state, federal and local governments. Voters respond to individual candidates in their districts, to the constituent services they receive when needed and to positions on important issues. The right candidate at the right time under certain conditions can defeat an incumbent who loses the faith of his constituents, his political base or his popularity. The crucial defect in the lower court’s decision is the presumption that under the EG and any other suggested social science standard it used is to equate political gerrymandering with deprivation of minority party’s capacity to serve its constituents. It posits that only the state-wide values should control rejecting the face that local legislators evince the local interests of voters as well as those on state-wide issues. Often local legislation is not partisan issue driven and members of one political party act with member of the other party to achieve the goals of both.
Apart from the fact that each major parties’ umbrella contains a wide variety of political views that defeat a factual claim of exclusion by partisanship, the EG and the social science applied by the district court fails to take into account any variable other than vote totals. It ignores

14
the political geography of New York State. It ignores the impact of the non-contested elections which skew results. It ignores the fact that far many more Senate districts in New York City are single party Democratic districts, where 42% of registered Democrats reside than there are single party districts of Republicans upstate. New York City overwhelmingly contributes Democratic legislators and often the sole competitive race in many local legislative district seat is the Democratic Party primary election.
In the actual political process in New York State, the term “efficiency” is of no utility in measuring partisanship, excessive or otherwise. New York along with at least eight other states, which allows candidate to run for office on multiple party lines, the EG does not work as a partisan assessment because the very concept of fusion allows for candidates to combine lines to achieve election, even to go so far as to either run with both major parties endorsement or to run unopposed by a major party in a general election.
Thus the district court’s reliance in and appeal to social science fails to generate a workable standard that is limited and precise as well as reliable. As a consequence the ruling will drive federal courts deeply into unprecedented and intrusive intervention in the state legislative realm of its province of legislative districting process, not based upon the precise and limited accurately measurable core values surrounding immutable conditions, such as race, but instead upon tenuous basis with no guarantee of its own constitutionality. Vieth, 541 U.S. at 306 (Kennedy J., concurring in the judgment); Miller v. Johnson, 515 U.S. 900, 916 (1995).

15
B. A State House That Governs In Coalition Between And Among Parties Voids The Presumptions In The District Court Opinion
Coalition government is designed to specifically give voice to the minority party members. In the New York State Senate, coalition governance insures that even losing voices play a role by and through the forged coalition, thus giving the lie to the district court determination of partisanship by party designation. The district court in pursuit of a misguided concept of political fairness invoked the ability of voters of a particular political persuasion to form a legislative majority. Whitford, Id. at 882-883. The district court presumes injury to the party by virtue of the claim that a losing party is completely shut out of the legislative process. Traditional Republicans and Progressive Democrats have in coalition passed laws traditionally identified with opposition parties. The social science is blind to the fact that in the New York State Senate, nine of the elected Democrats serve in coalition with the Republicans providing a majority governing coalition.
The use of political party vote as a proxy for being shut out of the political process of the majority is wholly misbegotten given the coalition influences legislation and creates adequate representation of every voice at the table of government. In certain matters, minor parties enact legislation beneficial to their communities. Large scale issues with deep ideological divisions are less likely to be imposed upon the majority coalition from minority party members, as is appropriate in a representative democracy. Coalition members, however, have an actual seat at the table in the terms of advocating for legislation and in negotiating the state-wide budget.

16
Coalition government allows legislators to transcend party identities in order to make the value driven decisions that voters expect of their elected representatives. It allows coalition members to bring back to their districts resources and opportunities not tied to any one political party. Individual legislators have the ability to assess and act upon local conditions not relative to party concerns but keyed to district and constituent concerns. In New York especially party identification is not always a consistent predictor of individual votes for local legislators. Coalition government is the cooperative project that allows governance to transcend the cold social science record.
In the New York State Senate it is clear that a coalition governing structure may therefore claim to be overvaluing the votes of voters in certain district when that elected Senator participates as part of the majority coalition, without regard to the political persuasion of the elected Senator. The district court’s core belief that a losing political party district by district cannot form a legislative majority is belied by the reality of New York State politics.
Thus the use of state-wide numbers to then conclude that the entirety of the minority party is perforce shut out of the political process to the degree that it creates unconstitutional state districts is baseless in the reality of the New York State Senate’s governance.

17
C. Minor Party Votes Which Are Decisive In Close Elections In The New York State Senate Are Excluded From The Wisconsin Social Science Model
The test in the district court to be even plausible requires the reduction over every election to nothing more than “D” and “R” votes on the ballot. In doing so the district court oversimplified the political process by eliminating the role of the minor parties. In the case of the minor parties their endorsement allows persons who eschew the top of the ticket of the major parties, but wish to vote for their preferred local representative, exclusive of identification with a major party. In New York, these parties include the Conservative, Independence, Green, Reform, Womens’ Equality and Working Families Parties as well as the many highly localized issue-based parties. Minor parties would play no role in the EG partisan assessment under the district court model, despite the fact there is evidence of ticket splitting in the State. Local legislators often outpoll candidates higher on the ticket. Candidates draw voters for reasons that transcend political affiliations given the vast amounts of money spent, the disparate Democratic registration advantage and the ticket splitting tendencies of New York voters.
Minor parties indirectly and directly determine outcomes in local legislative races in New York State so as to undermine the use solely of major party votes. Minor parties alter outcomes of major party candidate voting patterns, either affirmatively when the candidate is on the ballot line or by drawing votes from a major party candidate when that candidate fails to secure a minor party’s endorsement

18
Minor parties often endorse the candidate of a major party and on occasion endorse their own candidate. In New York members of the state legislature are elected by virtue of the votes of members of the two majority parties and the participation of the various state-wide minor parties and localized issue-based parties.
In the current reapportionment cycle based upon maps approved by the federal court, in the election of 2016, three Republican Senators won election or reelection based upon the votes of third parties. In 2014 one Democrat and one Republican won their election based on the vote of a third party. In the 2012 cycle, six republican senators won election or re-election on the basis of third party voters.
The participation of non-major parties is crucial to outcomes particular to certain counties or areas by occasionally provide margins of victory in local races. In state legislative races and in the New York State Senate elections, there is ample evidence of ticket splitting in local races in New York.
The social science of the district court makes no provision for such minor parties, especially where these parties do or do not endorse a major party candidate. By measuring partisanship using only the two major parties, the EG casts aside votes that express the preference that actually reflects partisanship that the test pretends to be testing.					

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II. Redistricting Of State Legislature Will End Up Being Endlessly Micro Managed By The Federal Courts Based Upon A Claim Of Political Partisanship Given That It Undermines Traditional Redistricting Standards.
Reapportionment of state legislatures is primarily the duty and obligation of states and not the federal courts. Growe v. Emison, 507 U.S. 25, 34 (1993), quoting Chapman v. Meier 420 U.S. 1, 27 (1975). Reapportionment by any state legislature is primarily a political task. Gaffney v. Cummings, 412 U.S. 735, 749 (1973), undertaken by political actors elected for such purpose. The elusive nature of identifying partisan gerrymandering might suggest that the decades-long quest to find a workable standard with a “limited and precise rationale” to isolate impermissible levels of partisanship, regarding state legislatures be abandoned to the measurement of traditional redistricting principles and assessing invidious discrimination. Use of the EG alone would invalidate New York’s redistricting plan just recently approved by a three judge court. Favors v. Cuomo, 2014 WL 2154871(E.D.N.Y. 2014) modified, 2014 WL 3734378 (E.D.N.Y. July 28, 2014).
Even if a federal court can decide how much partisanness is too much, it is making an exclusively political judgment committed to the states as one of the most significant acts a State can perform to ensure citizen participation in self-governance. LULAC, 548 U.S. at 415. The coalition in the New York State Senate reflects the effects of citizen participation by their votes in individual districts maintains a relatively stable legislature in which a minority party retains significant representation Vieth, 541 U.S. at 360 (Breyer, J. , dissenting).

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The standard such as it is proposed by the district court is assuredly a recipe for epic amounts of litigation in federal courts over state legislative lines, even when they meet all traditional redistricting principles such as compactness, contiguity, respect for political subdivisions, core communities, communities of interest, Miller v. Johnson, 515 U.S. 900, 916 (1995) and other requirements of traditional redistricting, including protecting incumbents and political affiliations, Ala. Leg. Black Caucus v. Alabama, 134 S. Ct. 1257, 1270 (2015). Because any voter or organization can make themselves a plaintiff redistricting litigation becomes the vehicle for those whose failures at the ballot box an opportunity to overturn the actual will of the voting public.
The Favors litigation is instructive regarding the potential consequences of affirmance of the district court decision. After the failure of the two houses of the legislature to agree upon Congressional lines, a three judge court was forced to draw the Congressional lines. A state plan proposed by the then pre coalition Republican controlled Senate majority and the Democratic controlled Assembly was adopted and signed into law by the Governor. Thereupon various individuals and organizations sued to overturn the State plan and impose their variants of plans based either upon racial, ethnic, religious or other demographics. Plaintiffs sued the Governor and the majority and minority party legislative leaders. In the course of the litigation, the putative defendant, the then-Senate Minority Leader, having been unable to command enough votes to defeat the bill in the Senate chamber, functionally aligned with plaintiffs in seeking to defeat the enacted plan. The lion’s share of the litigation devolved down to a contest between the Senate Minority

21
defendants seeking to overturn the enacted plan defended by the Senate Majority defendants and with nothing to lose politically, seeking to seize a victory in the courts denied to them on the floor of the Senate. The case stretched over four years culminating in the three judge court finding that the plans of Senate in particular was constitutionally proper according to traditional redistricting principles.
Should the district court be affirmed, the redistricting process in the states will be a prelude to the guaranteed litigation in federal court by any one political actor aggrieved, any loser in the exercise of representative democracy or a political gadfly. The addition of more “metrics” will bring every crook and nanny (and every organization that funds or controls them) into federal court as a private litigant against the re districting lines convinced they are gerrymandered into oblivion. See, e.g. Loeber v. Spargo, 391 Fed. Appx. 55 (2d Cir 2010). No cycle will be free from litigation poised to claim any social science metric tested or otherwise as a means to tie up functional government with the obligation to defend its political realities to a federal court with little or no experience of the political geography or factors of the state of New York.
The federal court litigation will begin with a rummage through the social sciences to find any “test” that could be asserted to claim partisanship and will culminate in a mud wrestling of experts. The result is that the federal courts will be in the business of picking winners and losers out of the caldron of social science.
The standard should not impose greater uncertainty, nor should it not be discernible or manageable by the

22
state actors to whom the obligation of redistricting is constitutionally delegated. No state legislator would be able to securely enact a plan confident that it meets constitutional requirements. Good faith attempts to follow traditional redistricting principles will be of no value. There will be no way to divine what will comply with what is now to be an ever-shifting elusive constitutional standard set by the federal courts over the state re districting process. No legislature could draw lines that would protect it from federal litigation and no party will know how a future district court would identify a social science value and impose it.
The consequence of upholding the metric accepted by the district court will be that no redistricting process will ever end by the acts of the state legislature as was contemplated by relegating re districting to the states. Instead, the losers in the state process will rush through the doors of the federal courthouse to the detriment of representative government in the states.
And only the federal court will be able to determine each and every claim against a legitimately drawn map because no one will have a thread of an idea of what social science metric could govern the redistricting. The courts will assume political responsibility for a process that itself is fraught with ill will and distrust as demonstrated by the litigious nature of redistricting. Further the result will be unprecedented costly and time consuming litigation initiated by the rival political party, as was done in Favors, where the Senate Democrats separately litigated against the Senate Majority. See, Favors, Id. The consequence will be a ten year anniversary of docket busting redistricting cases which drag on almost until the next census and

23

then it all begins again. By the time a redistricting plan is sanctioned by a federal court, it will be time to begin a new round of line drawing into the vacuum. In effect a permanent consent decree will be the consequences of the amorphous standard of the district court. State legislatures and state voters are entitled to a degree of certainty and to be free from repeated invasion by the federal court.

CONCLUSION

For the foregoing reasons, amici, New York State Senate Temporary President and Republican Coalition Leader respectfully requests that the Court reverse the lower court’s decision.

				

Respectfully submitted,
David L. Lewis Counsel of Record
Lewis and Fiore, Esqs. 225 Broadway, Suite 3300 New York, New York 10007 (212) 285-2290 dlewis@lewisandfiore.com

Counsel for Amici Curiae

August 4, 2017

 
 No. 16-1161
In the Supreme Court of the United States
BEVERLY R. GILL, ET AL., APPELLANTS v.
WILLIAM WHITFORD, ET AL., APPELLEES
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
BRIEF FOR THE STATES OF TEXAS, ALABAMA, ARIZONA, ARKANSAS, GEORGIA, INDIANA, KANSAS, LOUISIANA, MICHIGAN,
MISSOURI, NEVADA, OHIO, OKLAHOMA, SOUTH CAROLINA, UTAH, AND WEST VIRGINIA AS AMICI CURIAE IN SUPPORT OF APPELLANTS

KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General

SCOTT A. KELLER Solicitor General Counsel of Record MATTHEW H. FREDERICK Deputy Solicitor General

KRISTOFER S. MONSON Assistant Solicitor General

OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov (512) 936-1700

TABLE OF CONTENTS
Page Interest of amici curiae...................................................... 1 Summary of argument ....................................................... 2 Argument ............................................................................ 3
I. Legislatures do not act invidiously or irrationally, under the Equal Protection Clause, when they reapportion with a partisan purpose. .......... 4 A. Partisan-gerrymandering claims require showing that a legislature acted with an invidious or irrational purpose. ....................... 4 B. Partisan purposes are inherent in legislature-controlled redistricting, and there is nothing invidious or irrational about such purposes. ........................................ 7 C. The presumptions of constitutionality and good faith for government actions, combined with the many traditional purposes inherent in any reapportionment, make it incredibly difficult—if not impossible—to show invidious partisan purpose. ..... 9 D. The district court did not apply a presumption of constitutionality and good faith, and it contravened this Court’s precedent by equating partisan purpose with invidious intent. ...................................... 13
II. Neither the district court’s nor plaintiffs’ test presents judicially discoverable and manageable standards for determining when a reapportionment has an invidious partisan purpose or sufficiently burdens representational rights............................................................. 15
(I)

II
A. The district court improperly relied on a theory of group—rather than individual— rights, which leads to a proportionalrepresentation standard already rejected by this Court. .................................................. 17
B. Plaintiffs’ proposed “efficiency-gap” test does not provide a judicially manageable standard. .......................................................... 23
Conclusion ......................................................................... 28
TABLE OF AUTHORITIES
Cases:
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ........................................................ 17
Baker v. Carr, 369 U.S. 186 (1962) .......................................................... 4
Baumgart v. Wendelberger, Nos. 01-C-0121, 02-C-0366, 2002 WL 34127471 (E.D. Wis. July 11, 2002) .............................................. 24
Buckley v. Valeo, 424 U.S. 1 (1976) .............................................................. 5
Burns v. Richardson, 384 U.S. 73 (1966) ............................................................ 9
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) .......................................................... 5
Chapman v. Meier, 420 U.S. 1 (1975) ........................................................ 1, 14
City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365 (1991) ........................................................ 10
City of Mobile v. Bolden, 446 U.S. 55 (1980) .................................................. 6, 8, 21

III
Davis v. Bandemer, 478 U.S. 109 (1986) .................................................... 7, 22
Evenwel v. Abbott, 136 S. Ct. 1120 (2016) .................................................... 12
Flemming v. Nestor, 363 U.S. 603 (1960) ........................................................ 11
Fletcher v. Peck, 6 Cranch 87 (1810) ................................................... 10, 11
Gaffney v. Cummings, 412 U.S. 735 (1973) .................................... 1, 5, 7, 8, 9, 13
Growe v. Emison, 507 U.S. 25 (1993) ........................................................ 1, 7
Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301 (2016) .................................................... 15
Karcher v. Daggett, 462 U.S. 725 (1983) ...................................................... 7, 8
LULAC v. Perry, 548 U.S. 399 (2006) ..........................14, 15, 17, 21, 23, 24
McCleskey v. Kemp, 481 U.S. 279 (1987) ........................................................ 11
McGowan v. Maryland, 366 U.S. 420 (1961) .......................................................... 6
Miller v. Johnson, 515 U.S. 900 (1995) .................................... 7, 9, 10, 13, 14
Palmer v. Thompson, 403 U.S. 217 (1971) ........................................................ 16
Perry v. Perez, 565 U.S. 388 (2012) .......................................................... 7
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979) .................................................... 6, 11
Reno v. Bossier Par. Sch. Bd., 520 U.S. 471 (1997) .......................................................... 6

IV
Reynolds v. Sims, 377 U.S. 533 (1964) ........................................................ 18
Rogers v. Lodge, 458 U.S. 613 (1982) .................................................. 5, 6, 8
Shaw v. Hunt, 517 U.S. 899 (1996) ........................................................ 17
Shaw v. Reno, 509 U.S. 630 (1993) .................................................... 7, 12
Smith v. Doe, 538 U.S. 84 (2003) .......................................................... 11
Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350 (1918) ........................................................ 10
Tenney v. Brandhove, 341 U.S. 367 (1951) ........................................................ 12
U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) ........................................................ 10
United States v. Chem. Found., Inc., 272 U.S. 1 (1926) ............................................................ 10
Vieth v. Jubelirer, 541 U.S. 267 (2004) ............................................... passim
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ..............10, 11, 12, 14, 15, 27
Washington v. Davis, 426 U.S. 229 (1976) ................................................ 6, 8, 11
Whitcomb v. Chavis, 403 U.S. 124 (1971) ........................................ 5, 18, 19, 21
Constitutional provisions:
U.S. Const. amend. I ......................................................... 5, 6 U.S. Const. amend V ........................................................... 17 U.S. Const. amend. XIV ............................................ passim

V
Miscellaneous:
Paul A. Diller, Reorienting Home Rule: Part 1— The Urban Disadvantage in National and State Lawmaking, 77 La. L. Rev. 287 (2016) ............ 19
Daniel H. Lowenstein & Jonathan Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory? 33 UCLA L. Rev. 1 (1985) ................................................................... 13
Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) ........................ 23, 24

INTEREST OF AMICI CURIAE
Amici curiae are the States of Texas, Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. The States have a vital interest in the rules that govern apportionment of seats for state legislative bodies and the United States House of Representatives. This Court has repeatedly held that “reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.” Growe v. Emison, 507 U.S. 25, 34 (1993) (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)).
And the Court has recognized that reapportionment by state legislatures is an inherently political task. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 749 (1973). The Court has never held that a State violates the Constitution by pursuing or achieving political goals through reapportionment.
Yet in this case, the district court held that Wisconsin violated the Constitution when it passed Act 43, the reapportionment plan for its Assembly and Senate, because that plan was purportedly an unlawful partisan gerrymander. The district court’s decision invites openly partisan policy battles in the courtroom. This will expose every State to litigation under a legal standard so indeterminate that any party that loses in the legislature has a plausible chance of overriding that policy decision in the courts. The Constitution does not support, let alone compel, this result.
(1)

2
SUMMARY OF ARGUMENT
Plaintiffs’ expert in this case concluded that the proposed partisan-gerrymandering standard offered by plaintiffs would have invalidated a redistricting plan in 36 States over the past few decades. That includes States across the country, from Alabama to Washington, California to New York, and from Massachusetts to South Carolina. See infra pp.25-26. Plaintiffs thus propose nothing short of a paradigm shift in how legislatures and courts approach redistricting.
Yet this Court has repeatedly recognized that legislative reapportionment is an inherently partisan task. Partisan purpose is thus inherent in the nature of legislative reapportionment. There is nothing invidious or irrational, under the Equal Protection Clause, about legislatures having partisan purposes when reapportioning legislative seats.
Furthermore, the district court’s indeterminate standard does not draw a manageable line between permissible and impermissible partisan purpose and effects. This Court has made clear that partisangerrymandering claims are not cognizable based on a measure of proportional representation between the statewide votes and seats obtained by a political party. See infra pp.21-22. Nevertheless, the split decision of the district court here recognized such a partisangerrymandering claim under an amorphous test—based on a metric of proportional representation—that could be used to threaten countless state legislative reapportionment plans. At base, the district court’s reliance on vote-dilution cases misunderstands the difference between those claims regarding individual rights versus the novel group-based right recognized by the district court.

3
The district court infused proportional representation into its analysis by relying on plaintiffs’ “efficiency gap” analysis as “corroborative evidence” of the effectiveness of the declared partisan intent. But this efficiency gap analysis—which calculates a percentage based on the number of “wasted” votes (that is, votes for the winning candidate beyond the 50% margin needed for victory plus any votes for losing candidates) divided by the total number of votes in the election— measures nothing meaningful in the real world of a given district. The efficiency-gap calculation is just designed to achieve a particular type of proportional political outcome. Given the Court’s longstanding rejection of proportional representation, it should not now adopt a mathematical formula that would require courts to ensure certain political outcomes for every state legislature in every redistricting cycle.
ARGUMENT
This Court has repeatedly recognized a widely known fact: Politics is, and always has been, a part of redistricting. Far from being invidious or irrational, political competition is a necessary component of legislative-controlled redistricting. The district court fundamentally misunderstood this Court’s Equal Protection Clause precedent, which requires a showing of invidious or irrational purpose—and one that overcomes the strong presumption of constitutionality and good faith accorded to legislative acts.
Worse yet, the district court’s test for sustaining a partisan-gerrymandering claim rests on an untenable assumption that redistricting plans should produce proportional representation. Moreover, plaintiffs’ proposed standard would have invalidated redistricting plans in 36 States over the past few decades. Thus, far from

4
eliminating politics from redistricting, the district court’s test would shift political battles from the statehouse to the courthouse.
I. Legislatures Do Not Act Invidiously or Irrationally, Under the Equal Protection Clause, When They Reapportion With a Partisan Purpose.
Legislatures do not act invidiously or irrationally when they reapportion with a partisan purpose. And the Court has recognized numerous times that partisan politics are inherent in the nature of legislative-controlled reapportionment. This fatally undermines the existence of partisan-gerrymandering claims.1
A. Partisan-gerrymandering claims require showing that a legislature acted with an invidious or irrational purpose.
A claim of unconstitutional partisan gerrymandering is an allegation, under the Equal Protection Clause, that a legislature has acted with an invidious or irrational purpose. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring in the judg-
1 The Court can therefore hold that partisan-gerrymandering claims are not cognizable under the Equal Protection Clause— wholly apart from any potential application of the politicalquestion doctrine’s limits on Article III jurisdiction. That said, the political-question doctrine would independently bar partisangerrymandering claims. Partisan concerns are a constitutionally appropriate element in the redistricting process, so any partisan-gerrymandering standard triggered by the degree of partisan interest motivating the plan can have no predictable limiting principle and is, at base, a question for the political branches. E.g., Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that, among other things, the “lack of judicially discoverable and manageable standards” for resolving a dispute make it a political question, outside the Judiciary’s power).

5
ment) (a partisan-gerrymandering claim alleges that “political classifications . . . were applied in an invidious manner or in a way unrelated to any legitimate legislative objective”); see also Whitcomb v. Chavis, 403 U.S. 124, 155 (1971) (“it would not follow that the Fourteenth Amendment had been violated unless [the law] is invidiously discriminatory”); Gaffney, 412 U.S. at 754 (redistricting plan may be unconstitutional if political group is “fenced out of the political process and their voting strength invidiously minimized”).
Because a partisan-gerrymandering challenge to a redistricting plan must allege invidious action, it is “subject to the standard of proof generally applicable to Equal Protection Clause cases.”2 Rogers v. Lodge, 458
2 As support for treating partisan intent as invidious, the district court invoked the First Amendment’s freedom-ofassociation principle and cases related to the ability of groups to speak. J.S. App. 109a (analyzing plaintiffs’ claim under combination of associational rights and Equal Protection jurisprudence); J.S. App. 176a-77a (concluding that the associational rights of members of the Democratic Party were impaired because they could not transform their votes into electoral results); J.S. App. 226a (concluding that individual plaintiffs had standing to present harm to Democratic Party). However, partisan intent is necessarily behind the exact type of speech and association inherent in political parties speaking and their members voting during elections. E.g., Vieth, 541 U.S. at 313-14 (Kennedy, J., concurring in the judgment) (a “‘[r]epresentative democracy . . . is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views’” (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000)). The Court has long declined to take a role in elevating any particular partisan message or outcome in the election process. E.g., Buckley v. Valeo, 424 U.S. 1, 57 (1976) (per curiam) (“The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise.”). And it has always described the First Amendment as providing access to the political

6
U.S. 613, 617 (1982). The Equal Protection Clause does not forbid state action that merely affects some individuals differently than others. E.g., McGowan v. Maryland, 366 U.S. 420, 425 (1961); see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979) (“[T]he Fourteenth Amendment guarantees equal laws, not equal results.”). A claim of mere disparate effect does not violate the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 240 (1976); see Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 481 (1997) (citing City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality op.)).
Plaintiffs’ obligation to prove invidious purpose, therefore, “is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment.” Rogers, 458 U.S. at 619 (quoting Bolden, 446 U.S. at 66 (plurality op.)).
process, not a right to particular partisan outcomes. E.g., id. (“In the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign.”). At any rate, as explained below, see infra Part II, the tests advanced in this case do not present the “pragmatic or functional” test that would be required to administer a First Amendment regime tied to the election outcomes for the political parties. Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the judgment).

7
B. Partisan purposes are inherent in legislature-controlled redistricting, and there is nothing invidious or irrational about such purposes.
This Court has said time after time that partisan purposes are inherent in redistricting, for example:
• “Politics and political considerations are inseparable from districting and apportionment.” Gaffney, 412 U.S. at 753.
• “In the reapportionment context, the Court has required federal judges to defer consideration of disputes involving redistricting where the State, through its legislative or judicial branch, has begun to address that highly political task itself.” Growe, 507 U.S. at 33.
• “[R]edistricting in most cases will implicate a political calculus in which various interests compete for recognition.” Miller v. Johnson, 515 U.S. 900, 914 (1995).
• Redistricting “ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment.” Perry v. Perez, 565 U.S. 388, 393 (2012) (per curiam).3
3 See also Vieth, 541 U.S. at 285 (plurality op.) (“The Constitution clearly contemplates districting by political entities . . . and unsurprisingly that turns out to be root-and-branch a matter of politics.”); Shaw v. Reno, 509 U.S. 630, 662 (1993) (White, J., dissenting) (“[D]istricting inevitably is the expression of interest group politics . . .”); Davis v. Bandemer, 478 U.S. 109, 129 (1986) (plurality op.) (“As long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.”); Karcher

8
Consequently, the fact that a legislature reapportioned with a partisan purpose is not evidence that the legislature acted invidiously or irrationally. See, e.g., Vieth, 541 U.S. at 313 (Kennedy, J., concurring in the judgment) (“[A]ppellants’ evidence at best demonstrates only that the legislature adopted political classifications. That describes no constitutional flaw . . . .”).
In contrast, when a legislature acts with a purpose to create a racial classification, for example, that purpose itself is invidiously suspect.4 But there is nothing inherently suspect, invidious, or irrational about a legislature using a partisan purpose when redistricting. See Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (“Race is an impermissible classification. Politics is quite a different matter.” (citation omitted)).
This Court’s precedent establishes that partisanship and entrenchment are not invidious purposes—and for good reason. For example, bipartisan gerrymanders, which often favor incumbent legislators of both parties, are permissible. See Gaffney, 412 U.S. 735 (holding that a redistricting plan drawn by a bipartisan commission along political lines was not invidiously discriminatory);
v. Daggett, 462 U.S. 725, 753 (1983) (Stevens, J., concurring) (“Legislators are, after all politicians; it is unrealistic to attempt to proscribe all political considerations in the essentially political process of redistricting.”).
4 See Rogers, 458 U.S. at 617 (“[I]n order for the Equal Protection Clause to be violated, ‘the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.’” (quoting Washington v. Davis, 426 U.S. at 240)); Bolden, 446 U.S. at 66 (plurality op.) (“We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities.”).

9
Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966) (“The fact that district boundaries may have been drawn in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness.”). Such gerrymanders are just as likely to involve both an “injection of politics,” Vieth, 541 U.S. at 293 (plurality op.), and an “intent to entrench” those who control the process, J.S. App. 117a. But neither violates equal protection: “[t]he very essence of districting is to produce a different—a more ‘politically fair’— result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats.” Gaffney, 412 U.S. at 753.
Determining what is “politically fair” is a task left to the States to resolve through the political process. See, e.g., Miller, 515 U.S. at 915 (“Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests.”).
C. The presumptions of constitutionality and good faith for government actions, combined with the many traditional purposes inherent in any reapportionment, make it incredibly difficult—if not impossible—to show invidious partisan purpose.
Even if the Court were to entertain the possibility that a drastic, specific type of partisan purpose could possibly rise to the level of invidious or irrational intent, it would be very difficult—if not impossible—to sustain such a claim. This Court’s established precedent makes clear that any unlawful-purpose analysis requires “extraordinary caution” and faces an exacting standard: it requires the clearest proof of invidious purpose in light of the heavy presumptions of constitutionality and good

10
faith accorded to government actions. See, e.g., Miller, 515 U.S. at 916 (recognizing a “presumption of good faith that must be accorded legislative enactments, requir[ing] courts to exercise extraordinary caution in adjudicating claims that a State has [engaged in invidiously-motivated action]”). Plus, any redistricting plan will necessarily involve traditional, legitimate reapportionment purposes—including compliance with the oneperson, one-vote doctrine, which already significantly cabins the ability of legislatures to engage in excessive partisan gerrymanders.
1. The exacting standard for invidious-purpose challenges to government action is just one application of the Court’s general recognition that government action is presumed valid, e.g., Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 353 (1918); that government actors are presumed to act in “good faith,” Miller, 515 U.S. at 916; and that a “presumption of regularity” attaches to official government action, United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). These doctrines create a “heavy presumption of constitutionality.” U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 721 (1990).
This Court, therefore, “has recognized, ever since Fletcher v. Peck, [6 Cranch 87, 130-31 (1810),] that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977). So the Court has permitted an unlawfulpurpose analysis of government action in only a “very limited and well-defined class of cases.” City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 377 n.6 (1991).
Even when it has permitted an unlawful-purpose analysis of government action, the Court has

11
concomitantly stated that any such analysis proceeds under an exacting standard. As Chief Justice Marshall explained over two centuries ago in Fletcher, government action can be declared unconstitutional only upon a “clear and strong” showing, 6 Cranch at 128.
The Court has thus explained, in various contexts, that only clear proof of unlawful purpose can allow courts to override facially neutral government actions. For example:
 When there are “legitimate reasons” for government action, courts “will not infer a discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 298-99 (1987) (rejecting equal-protection claim).
 A law’s impact does not permit “the inference that the statute is but a pretext” when the classification drawn by a law “has always been neutral” as to a protected status, and the law is “not a law that can plausibly be explained only as a [suspect class]-based classification.” Feeney, 442 U.S. at 272, 275 (1979) (rejecting equalprotection claim); see Arlington Heights, 429 U.S. at 269-71; Washington v. Davis, 426 U.S. at 245-48.
 Only the “clearest proof” will suffice to override the stated intent of government action, to which courts “defer.” Smith v. Doe, 538 U.S. 84, 92 (2003) (rejecting ex-post-facto claim); see Flemming v. Nestor, 363 U.S. 603, 617 (1960) (citing Fletcher, 6 Cranch at 128).
This exacting standard for an unlawful-purpose challenge to facially neutral government action exists for good reason. It keeps a purpose inquiry judicial in nature, safeguarding against a devolution into policy-

12
based reasoning that elevates views about a perceived lack of policy merit into findings of illicit purpose. Even when an official adopts a different policy after criticism of an earlier proposal, critics can be quick to perceive an illicit purpose when they disagree with the final policy issued. See Tenney v. Brandhove, 341 U.S. 367, 378 (1951) (“In times of political passion, dishonest or vindictive motives are readily attributed . . . and as readily believed.”). The clearest-proof standard helps keep the Judiciary above that political fray.
2. The fact that reapportionment will always necessarily involve traditional redistricting motives in addition to partisan motives also significantly undermines any allegation of invidious partisan gerrymandering.
Legislatures in charge of redistricting operate under a “broad mandate,” and their decisions are rarely “motivated solely by a single concern.” Arlington Heights, 429 U.S. at 265. Thus, while partisan advantage is ever present, it is never a legislature’s sole concern in redistricting. Many other traditional, legitimate factors figure into decisions to draw district boundaries in a certain way, such as “compactness, contiguity, and respect for political subdivisions.” Shaw v. Reno, 509 U.S. at 647.
Importantly, the one-person, one-vote doctrine also significantly cabins the ability of legislatures to rely excessively on partisan purpose. By requiring districts of nearly equal population, legislatures are already limited in how they can use partisan purpose in reapportionment. See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016) (“Over the ensuing decades, the Court has several times elaborated on the scope of the one-person, onevote rule.”).
When weighing all these traditional reapportionment criteria, politicians’ attention naturally gravitates

13
towards the “the location and shape of districts [that] may well determine the political complexion of the area,” Gaffney, 412 U.S. at 753, and affect their chances of reelection or the probability that their favored legislation will pass. Voters expect no less. See Daniel H. Lowenstein & Jonathan Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory? 33 UCLA L. Rev. 1, 74 (1985) (“[W]hat . . . matters to almost all Americans when district lines are drawn, is how the fortunes of the parties and the policies of the parties stand for are affected. When such things are at stake there is no neutrality. There is only political contest.”).
D. The district court did not apply a presumption of constitutionality and good faith, and it contravened this Court’s precedent by equating partisan purpose with invidious intent.
Rather than apply a presumption of constitutionality and good faith while exercising “extraordinary caution,” Miller, 515 U.S. at 916, the district court did the opposite. It ignored this Court’s precedent by finding invidious purpose based on the reapportionment drafters’ expressed partisan purpose in redistricting. E.g., J.S. App. 126a (purpose of plan was to “secure the Republican Party’s control of the state legislature for the decennial period”); J.S. App. 126a-36a (drafters considered partisan data to predict outcome); J.S. App. 139a (drafters considered partisan effects and “durability” of their plan). Evidence of partisan purpose is not evidence of invidious intent. See supra Part I.B. But under the district court’s approach, any effort to secure a marginal partisan advantage might qualify as prohibited invidious discrimination.

14
Problematically, the district court shifted the burden to Wisconsin to provide a non-partisan rationale for its redistricting, essentially treating partisan motive as invidiously suspect. Requiring that States minimize the partisan effects of redistricting—and tasking courts with ensuring that they do—invites massive judicial intervention in the redistricting process and draws courts further into the “political thicket” than this Court’s apportionment jurisprudence has ever envisioned: “Federal-court review of districting legislation represents a serious intrusion on the most vital of local functions.” Miller, 515 U.S. at 915. And redistricting is a “duty and responsibility of the State through its legislature.” Chapman, 420 U.S. at 27. Pervasive judicial involvement is “unwelcome,” from the perspective of both the States and the courts, because decennial reapportionment “is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance.” LULAC v. Perry, 548 U.S. 399, 416 (2006) (plurality op.).
Nor would the States find any comfort in “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” J.S. App. 123a (quoting Arlington Heights, 429 U.S. at 266). Circumstantial evidence—and likely direct evidence— will presumably abound with indicators of political motive. See, e.g., Vieth, 541 U.S. at 347-50 (Souter, J., dissenting) (“[U]nder a plan devised by a single major party, proving intent should not be hard, . . . politicians not being politically disinterested or characteristically naïve.”). And the “components of the analysis” under Arlington Heights, J.S. App. 171a, are not necessary elements of any claim; they are merely circumstantialevidence “subjects of proper inquiry” that can be analyzed to determine whether the independent

15
elements of the underlying claim are satisfied. 429 U.S. at 268.
Contrary to the district court’s suggestion, court- or commission-drawn plans will also be subject to extensive litigation. A recent case before this Court proves that claims of partisan gerrymandering will not “stall,” J.S. App. 171a, merely because a court or commission drew the challenged plan, see Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1307 (2016) (rejecting claim that deviations from population equality resulted from the redistricting commission’s “political efforts to help the Democratic Party”).
II. Neither the District Court’s nor Plaintiffs’ Test Presents Judicially Discoverable and Manageable Standards for Determining When a Reapportionment Has an Invidious Partisan Purpose or Sufficiently Burdens Representational Rights.
Even assuming that the Court determined that a drastic, specific type of partisan purpose in redistricting is invidious, the Court would still need to fashion a manageable standard for (1) distinguishing that specific type of invidious partisan purpose from legitimate partisan purposes, and (2) determining when a redistricting plan has a sufficient discriminatory effect or burden on representational rights. After all, as with any Equal Protection Clause claim based on an invidious purpose, a challenger must show not only invidious purpose but also a discriminatory effect—which would be an unconstitutional cognizable burden on representational rights in a partisan-gerrymandering claim. See, e.g., LULAC, 548 U.S. at 418 (plurality op.) (“[A] successful claim attempting to identify unconstitutional acts of partisan gerrymandering must . . . show a burden, as measured by a reliable standard, on the complainants’ representa-

16
tional rights.”); Palmer v. Thompson, 403 U.S. 217, 224 (1971) (“[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.”).
Neither the district court nor the plaintiffs have come close to demonstrating the existence of manageable standards for partisan-gerrymandering claims that overcome the strong presumption of constitutionality and good faith applicable here. As Wisconsin notes, the district court adopted an “entrenchment” test. See, e.g., Appellants’ Br. 20-21, 53-59. But Vieth already rejected party entrenchment as a manageable partisangerrymandering standard, and not even plaintiffs have defended the district court’s entrenchment test. See id. at 53-54.
This brief therefore will address portions of the district court’s analysis that plaintiffs might try to separate from the district court’s entrenchment test. The district court’s analysis of partisan effect relied on a theory of group rights never recognized by this Court, and that theory in turn compels a test requiring a form of proportional representation. See infra Part II.A. But this Court has rejected proportional representation as a manageable standard for partisan-gerrymandering claims. See infra pp.21-22. The plaintiffs’ proposed test—based on the so-called “efficiency gap”—fares no better. See infra Part II.B. Far from a meaningful measure of excessive partisan purpose, plaintiffs’ test is essentially a mathematical repackaging of a proportional-representation standard.

17
A. The district court improperly relied on a theory of group—rather than individual—rights, which leads to a proportional-representation standard already rejected by this Court.
1. The district court’s opinion morphed the plaintiffs’ individual rights against vote dilution into a group entitlement to a certain degree of statewide political power, contrary to this Court’s precedent. Although the district court claimed that “one-person, one-vote and vote dilution cases provide the foundation for evaluating claims of political gerrymandering,” J.S. App. 78a, the court’s basis for recognizing the plaintiffs’ claims was the perceived impediment of the “ability of Democrats to translate their votes to seats,” J.S. App. 79a. This analysis of statewide vote and seat totals focuses on the collective ability of groups to secure a “fair” level of representation in the legislature, rather than on the dilution of individuals’ votes.
Yet, as this Court has long recognized, “the right to an undiluted vote does not belong to the ‘minority as a group’ but rather to ‘its individual members.’” LULAC, 548 U.S. at 437 (plurality op.) (quoting Shaw v. Hunt, 517 U.S. 899, 917 (1996)); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.”).
Specifically, the district court concluded that the Wisconsin redistricting plan’s tendency to produce electoral results favoring Republicans constituted a dilution of plaintiffs’ vote, reasoning that the ability of plaintiffs to “secur[e] a political voice depends on the efficacy of the votes of Democrats statewide.” J.S. App. 226a. The district court did not consider the electoral history of the plaintiffs’ districts, their voting history, or pre-

18
ferred candidates, and the court entirely avoided an inquiry into whether any of the plaintiffs’ individual votes were somehow invidiously diluted. Instead, the district court evaluated “the ability of voters of a certain political persuasion to form a legislative majority,” asking whether this resulted in their “unequal particip[ation] in the decisions of the body politic.” J.S. App. 106a-07a. But this view of effective representation as requiring statewide partisan fairness is at odds with the Court’s clear holding that “[a] predominant consideration in determining whether a State’s legislative apportionment scheme constitutes an invidious discrimination violative of rights asserted under the Equal Protection Clause is that the rights allegedly impaired are individual and personal in nature.” Reynolds v. Sims, 377 U.S. 533, 561 (1964) (emphasis added).
A partisan-gerrymandering analysis cannot ignore district-specific factors, including the historical makeup of individual districts. By emphasizing the cumulative statewide performance of Democratic candidates, the district court side-stepped the inescapable fact that “American legislative elections are district-oriented, head-on races between candidates of two or more parties.” Whitcomb, 403 U.S. at 153. Voters who supported a losing candidate will not have the representation they preferred—that is the nature of electoral politics. And the very nature of singlemember, “first-past-the-post” districts means “a party with a bare majority of votes or even a plurality of votes will often obtain a large legislative majority, perhaps freezing out smaller parties.” Vieth, 541 U.S. at 357 (Breyer, J., dissenting). But this Court has never viewed these features of the American electoral system as “a denial of equal protection . . . , even in those so-

19
called ‘safe’ districts where the same party wins year after year.” Whitcomb, 403 U.S. at 153.
The majority’s opinion below also downplays the effect of geographic clustering, where Democratic-leaning voters tend to be concentrated in high-density urban areas. This well-documented phenomenon exists across the country, with predictable effects on district-level elections. See, e.g., Vieth, 541 U.S. at 290 (plurality op.) (recognizing that “political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a ‘natural’ packing effect”); Paul A. Diller, Reorienting Home Rule: Part 1—The Urban Disadvantage in National and State Lawmaking, 77 La. L. Rev. 287, 336 (2016) (“The same overlap of residential demography and political preference that skews the U.S. House in favor of Republicans operates, perforce, at the state level because a vast majority use contiguous, singlemember, winner-take-all districts to elect legislators.”).
The district court majority acknowledged, and the plaintiffs conceded, that “Wisconsin’s political geography affords Republicans a modest natural advantage in districting.” J.S. App. 200a. In fact, plaintiffs’ demonstration plan, which was drawn to minimize their “efficiency gap” metric, still showed an efficiency gap of 2.2% to 3.89% in favor of Republicans under their own measure. J.S. App. 202a, 203a n.355.5
The majority discounted this factor on the ground that geography alone “cannot explain the burden that Act 43 imposes on Democratic voters in Wisconsin.” J.S. App. 217a-18a. But other factors, such as larger num-
5 To reach the 2.2% efficiency gap, the plaintiffs’ expert assumed that there were no incumbents. Accounting for incumbency, the figure rose to 3.89%. J.S. App. 203a n.355.

20
bers of uncontested elections and variations in turnout, may correlate with and magnify the effects of geographic clustering. See J.S. App. 243a, 309a-11a (Griesbach, J., dissenting). It is a symptom of the district court’s reliance on plaintiffs’ efficiency-gap approach, see infra Part II.B, that the court’s analysis is divorced from evidence regarding particular districts— and thus factors the Court has previously found indispensable to redistricting analysis.6
2. The district court pretended that it was not enshrining a group right to proportional representation by asserting that its analysis of statewide voting and outcomes was simply measuring the “magnitude” of partisan motivations in redistricting. J.S. App. 169a. But the court’s measure of the degree of partisan effects necessarily turns on a comparison of statewide voting and outcomes—that is, a measure of proportional representation. The district court expressly relied on the plaintiffs’ proposed “efficiency gap” test—which is a proportional-representation measure, see infra Part II.B—as one factor in its unbound totality-of-thecircumstances analysis.7 J.S. App. 176a (treating efficiency gap analysis as basis for effect analysis).
6 Nor should the partisan effect of Wisconsin’s Act 43 be overestimated. As Judge Griesbach’s dissent pointed out, Republicans already had an “efficiency gap” advantage before Wisconsin reapportioned, so any partisan changes from the prior map are not so striking as the district-court majority seemed to believe. See J.S. App. 245a-46a; see also J.S. App. 235a (Griesbach, J., dissenting) (“[I]t is very likely that the Republicans would have won control of the legislature in 2012 and 2014 even without the alleged gerrymandering, and so this case presents a poor vehicle for the remedying of any grave injustice.”).
7 The district court’s analysis also erroneously rested on speculative predictions about how the “efficiency gap” would operate

21
This Court has consistently rejected proportional representation metrics as a manageable measure for partisan-gerrymandering claims under the Equal Protection Clause. See, e.g., Whitcomb, 403 U.S. at 156 (rejecting “the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote.”); Bolden, 446 U.S. at 75–76 (plurality op.) (“The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization.”); id. at 122 (Marshall, J., dissenting) (“The constitutional protection against vote dilution found in our prior cases does not extend to those situations in which a group has merely failed to
in hypothetical future elections throughout the upcoming decade. The district court concluded, and plaintiffs ask this Court to affirm, that Act 43 was likely to “entrench the Republican party in power,” in part because “Wisconsin’s plan would have an average pro-Republican efficiency gap of 9.5% for the entire decennial period.” J.S. App. 164a. The panel’s conclusion relied on expert-witness speculation about how the efficiency gap might change in the future, given hypothetical statewide vote totals. J.S. App. 165a-66a (relying on projected future results for decennial period); see also J.S. App. 148a-53a (discussing “swing analysis” and efficiency gap). But this Court has previously rejected the call to “adopt[] a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” LULAC, 548 U.S. at 420 (plurality op.).

22
elect representatives in proportion to its share of the population.”); see also, e.g., Vieth, 541 U.S. at 228 (plurality op.) (“groups . . . [do not] have a right to proportional representation); id. at 308 (Kennedy, J., concurring in the judgment) (agreeing with plurality’s rejection of proposed tests); Bandemer, 478 U.S. at 132 (plurality op.); id. at 155 (O’Connor J., concurring) (reasoning that to recognize a partisan gerrymandering claim, the Court would have to “evolve towards some loose form of proportionality”).
It is true that the majority did not require that a political party’s share of the statewide vote be in perfect proportion to the number of seats held by that political party. See J.S. App. 169a. But just because the district court did not require perfect proportional representation does not mean that its analysis was not inexorably intertwined with a determination of proportional representation. A standard that requires almost, but not quite, perfect proportional representation is hardly a judicially manageable partisan-gerrymandering standard, and it does not comport with this Court’s precedents.
As Judge Griesbach’s dissent rightly explains, the majority’s reasoning below on proportional political outcomes would, in effect, require lawmakers to aggressively eliminate many partisan considerations—as if partisan motive were invidiously suspect. J.S. App. 245a-46a (majority’s test would require legislators to “engage in heroic levels of nonpartisan statesmanship”). The logic of the district court majority’s opinion would permit a finding of partisan gerrymandering based on some unknown degree of disproportionality between statewide votes and legislative seats, provided only that the seats-to-votes gap persisted over the decennial re-

23
districting period. This would inject courts into the redistricting process in a novel, massively intrusive way.
B. Plaintiffs’ proposed “efficiency-gap” test does not provide a judicially manageable standard.
Not only did the district court fail to create a judicially manageable standard, but the plaintiffs also have not offered a workable test. The “efficiency gap” test proposed by the plaintiffs (J.S. App. 159a-61a) purports to correct the flaws of another measure of “fairness”— the “symmetry standard”—rejected in LULAC. 548 U.S. at 420 (plurality op.); id. at 492 (Roberts, C.J., concurring in the judgment); id. at 511 (Scalia, J., concurring in the judgment). But plaintiffs’ “efficiency gap” test is flawed as well.
1. The previously rejected “symmetry” standard measured the supposedly discriminatory effect of a map on “hypothetical” voters and “depend[ed] on conjecture about where possible vote-switchers will reside.” LULAC, 548 U.S. at 420 (plurality op.). Plaintiffs’ “efficiency gap” metric, in contrast, was conceived as a measure of “the parties wasted votes in [an] actual election.” Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 857 (2015). This “efficiency gap” metric purports to identify when a redistricting plan “enables a party to convert its votes into seats more efficiently than its adversary—even if this edge would vanish under different electoral conditions.” Id. at 859. The glaring problem with this approach is that it is just another mathematical formula measuring relative, proportional partisan outcomes.
This efficiency gap is defined through simple arithmetic: “[It] is . . . the difference between the parties’

24
respective wasted votes, divided by the total number of votes cast in the election.” Id. at 851 (emphasis omitted). So-called “wasted” votes are those that do not arithmetically contribute to the victory of a candidate in a two-way race—that is, all votes either (1) for the winning candidate beyond the 50% threshold for victory or (2) for a losing candidate. See id. at 850-53. Thus, for each election analyzed, nearly 50% of the votes cast are considered “wasted” under this “efficiency gap” measure. So, importantly, labeling a vote as “wasted” under this measure is nothing at all like this Court’s standard for unlawful vote dilution under the Voting Rights Act. E.g., LULAC, 548 U.S. at 426-27 (plurality op.). In practical terms, a party whose voters are more evenly distributed among legislative districts will see an efficiency gap in its favor. But that says nothing about the conditions in each of those districts.
Based on this calculation, plaintiffs allege that, as a result of Wisconsin’s district lines, “Republicans . . . wield legislative power unearned by their actual appeal to Wisconsin’s voters.” Mot. to Affirm at 1. But that just begs the question, as plaintiffs fail to explain what precisely makes a political party’s “legislative power unearned.” Id.
Tellingly, Wisconsin’s own historical experience proves that the “efficiency gap” does not measure anything relevant to a determination of excessive, invidious partisan purposes or effects. Under Wisconsin’s prior court-drawn map used from 2002 to 2010, the “efficiency gap” consistently favored Republicans—ranging from 4% to 12%. J.A. Vol. I at 221 (¶240), 223 (¶¶25256). And as the district court emphasized, that map was drawn by a court “in the most neutral way it could conceive.” J.S. App. 11a (quoting Baumgart v. Wendelberger, Nos. 01-C-0121, 02-C-0366, 2002 WL 34127471,

25
at *7 (E.D. Wis. July 11, 2002) (per curiam)). Nevertheless—even with a map giving Republicans a 4% to 12% “efficiency gap”—in 2008, the Democratic Party in Wisconsin won a majority of the seats in the State Assembly. J.A. Vol. I at 224 (¶255). When the Republican Party retook the Assembly in 2010, it did so despite the lowest Republican efficiency gap since 1996. J.A. Vol. I at 222 (¶249), 224 (¶256). Finally, in 2012, the year Wisconsin’s Act 43 produced a supposedly anti-democratic result by denying Democrats a legislative majority, 53% of Wisconsin voters rejected the attempted recall of Republican Governor Scott Walker. J.A. Vol. I at 249 (¶287).
Consequently, the efficiency gap does not actually measure vote dilution or distribution in reality, but simply the deviation from a statewide proportional votes-to-seats ratio masked by an additional mathematical formula. This is just another measure of proportional representation.
2. The analytical problems created by relying on the abstract “efficiency gap” analysis are underscored by the fact that plaintiffs assert that any redistricting map with a 7% or greater “efficiency gap” is unconstitutional. J.A. Vol. I at 60 (¶86). Plaintiffs’ selection of the 7% figure is derived from their expert’s projection that a percentage greater than 7% would tend to correlate with control of a legislature never shifting to another political party, J.A. Vol I at 58-60, and their expert’s hypothetical conclusion that a 7% efficiency gap would prevent control of a state legislature from shifting based on a projected statewide vote share, J.A. Vol. II at SA164.
This standard would have invalidated redistricting plans in 36 States over the past few decades. The plaintiffs’ expert, Jackman, applied the plaintiffs’ efficiency-

26
gap test to elections in 41 States over a 43-year period, finding invidious partisan purpose whenever the first election under a plan produced an efficiency gap greater than 7%. See J.A. Vol. II at SA212-SA213. This test would have condemned approximately one-third of the redistricting plans in the 786 elections analyzed in the study. J.A. Vol. II at SA212-SA214. Plaintiffs’ test would have found an impermissible partisan gerrymander in at least one plan in 36 of the 41 States analyzed8—including Alabama, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Montana, North Carolina, New Mexico, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Washington, Wisconsin, West Virginia, and Wyoming. See J.A. Vol. II at SA214.
Even when confining this analysis to elections held in just 2012 and 2014, Jackman found an efficiency gap greater than 10% in Florida, Indiana, Kansas, Michigan, Missouri, North Carolina, New York, Ohio, Rhode Island, Virginia, Wisconsin, and Wyoming. See J.A. Vol. II at SA253. In addition, Jackman averred that one political party could win a majority in the legislature without obtaining a majority of statewide votes in post-2010 redistricting plans in Alaska, Colorado, Georgia, Maine, Minnesota, Oregon, Pennsylvania, and Vermont. Id.
8 Jackman excluded 9 States—Arizona, Idaho, Louisiana, Maryland, Nebraska, New Hampshire, New Jersey, North Dakota, and South Dakota—from his analysis because they had “exceedingly high rates of uncontested races” or because they used multi-member districts, non-partisan elections, or a run-off system. J.A. Vol. II at SA200.

27
And as noted above, see supra Part II.A, the district court’s standard is even more open-ended than the plaintiffs’ proposed standard. Eschewing plaintiffs’ 7% threshold, the district court found that Wisconsin “burden[ed] the representational rights of Democratic voters in Wisconsin by impeding their ability to translate their votes into legislative seats, not simply for one election but throughout the life of Act 43.” J.S. App. 176a77a. In other words, the district court did not even adopt a certain numerical threshold for liability, instead treating any “efficiency gap” level as permissible circumstantial evidence that can always be considered under Arlington Heights. J.S. App. 176a. Under this rationale, as long as a state legislature intended to create some degree of partisan electoral advantage—and it is difficult to imagine how this could not be proven—then the plan would be unconstitutional.
The plaintiffs’ theory or the district court’s test, if adopted, would require the Court to completely overhaul its redistricting jurisprudence, disregard fundamental premises recognized repeatedly by the Court, and require courts to perpetually calculate and compare the relative level of partisan intent and proportional partisan effect of every redistricting effort in every State. Nothing in the Constitution supports this transformation of the democratic process.

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CONCLUSION
This Court should vacate the judgment of the district court and order the district court to dismiss the lawsuit for lack of Article III jurisdiction under the political-question doctrine. Alternatively, this Court should reverse the judgment of the district court.

STEVE MARSHALL Attorney General of Alabama
MARK BRNOVICH Attorney General of Arizona
LESLIE RUTLEDGE Attorney General of Arkansas
CHRISTOPHER M. CARR Attorney General of Georgia
CURTIS T. HILL, JR. Attorney General of Indiana
DEREK SCHMIDT Attorney General of Kansas
JEFF LANDRY Attorney General of Louisiana

Respectfully submitted. KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General SCOTT A. KELLER Solicitor General Counsel of Record MATTHEW H. FREDERICK Deputy Solicitor General KRISTOFER S. MONSON Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov (512) 936-1700

29
BILL SCHUETTE Attorney General of Michigan
JOSHUA D. HAWLEY Attorney General of Missouri
ADAM PAUL LAXALT Attorney General of Nevada
MICHAEL DEWINE Attorney General of Ohio
MIKE HUNTER Attorney General of Oklahoma
ALAN WILSON Attorney General of South Carolina
SEAN D. REYES Attorney General of Utah
PATRICK MORRISEY Attorney General of West Virginia
AUGUST 2017

 
 No. 16-1161

In the
Supreme Court of the United States
________________

BEVERLY R. GILL, et al., Appellants,
v.

WILLIAM WHITFORD, et al., Appellees.
________________ On Appeal from the United States District Court for the Western District of Wisconsin
________________

BRIEF FOR AMICI CURIAE
WISCONSIN STATE SENATE AND WISCONSIN STATE ASSEMBLY IN SUPPORT OF APPELLANTS ________________

KEVIN ST. JOHN BELL GIFTOS ST. JOHN LLP 5325 Wall Street Suite 2200 Madison, WI 53718

PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY MICHAEL D. LIEBERMAN KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000 paul.clement@kirkland.com

Counsel for Amici Curiae

August 4, 2017

TABLE OF CONTENTS STATEMENT OF INTEREST ................................... 1 SUMMARY OF ARGUMENT .................................... 1 ARGUMENT............................................................... 4 I. Partisan Gerrymandering Claims Subvert
The State Redistricting Process.......................... 4 A. Wisconsin’s Redistricting History Vividly
Illustrates the Difficulties of Enacting a Map That Complies With All Federal and State Law Requirements.............................. 5 B. Partisan Gerrymandering Claims Will Cause Unprecedented Levels of Federal Intrusion Into the State Redistricting Process .......................................................... 9 II. Statewide Partisan Gerrymandering Claims Rest On A Distorted View Of Electoral Politics And Representative Democracy........... 17 A. The Constitution Does Not Guarantee Proportional Representation...................... 17 B. Voters Elect Individual Candidates, Not Statewide Delegations................................ 19 C. Voters Who Support Losing Candidates Are Not Deprived of Representation or Access to the Political Process ................... 23 D. Party Affiliation Is Not an Immutable Characteristic ............................................. 26 III. Any Viable Test For Partisan Gerrymandering Would Need To Be Neutral, Yet Plaintiffs’ Proposed Test For Identifying Partisan Gerrymandering Systematically Favors Their Political Party Of Choice............. 31 CONCLUSION ......................................................... 37

ii
TABLE OF AUTHORITIES Cases Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015)........................................ 6, 10 Baldus v. Brennan,
Nos. 11-cv-562 & 11-cv-1011, 2011 WL 6122542 (E.D. Wis. Dec. 8, 2011) .......... 13 Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) ......... 7, 20, 23 Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366, 2002 WL 34127471 (E.D. Wis. May 30, 2002) ........... 8, 34 Benisek v. Lamone, No. 1:13-cv-03233-JKB, 2017 WL 959641 (D. Md. Mar. 13, 2017)........................................... 13 Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323 (E.D. Va. 2015) ..................... 13 Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017)................................................ 6 Biblia Abierta v. Banks, 129 F.3d 899 (7th Cir. 1997).................................. 12 Bogan v. Scott-Harris, 523 U.S. 44 (1998).................................................. 12 City of Mobile v. Bolden, 446 U.S. 55 (1980)............................................ 24, 26 Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11-C-5065, 2011 WL 4837508 (N.D. Ill. Oct. 12, 2011).......................................... 13

iii
Cooper v. Harris, 137 S. Ct. 1455 (2017)...................................... 10, 15
Davis v. Bandemer, 478 U.S. 109 (1986)........................................ passim
Democratic Party v. Wisconsin, 450 U.S. 107 (1981)................................................ 20
EEOC v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174 (4th Cir. 2011).................................. 12
Evenwel v. Abbott, 136 S. Ct. 1120 (2016)........................................ 6, 18
Favors v. Cuomo, 285 F.R.D. 187 (E.D.N.Y. 2012) ............................ 12
Gaffney v. Cummings, 412 U.S. 735 (1973).................................................. 4
Gomillion v. Lightfoot, 364 U.S. 339 (1960).................................................. 7
Gravel v. United States, 408 U.S. 606 (1972)................................................ 12
Jensen v. Wis. Elections Bd., 639 N.W.2d 537 (Wis. 2002) ................................ 6, 7
LULAC v. Perry, 548 U.S. 399 (2006)................................................ 18
Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis. 1992) ......................... 8
Reynolds v. Sims, 377 U.S. 533 (1964).................................................. 9
Rodriguez v. Pataki, 280 F. Supp. 2d 89 (S.D.N.Y. 2003) ...................... 13
Shaw v. Reno, 509 U.S. 630 (1993)................................................ 23

iv
State v. Fitzgerald, 798 N.W.2d 436 (Wis. 2011) .................................. 20
Tenney v. Brandhove, 341 U.S. 367 (1951)................................................ 14
Thornburg v. Gingles, 478 U.S. 30 (1986).................................................... 6
Vieth v. Jubelirer, 541 U.S. 267 (2004)........................................ passim
Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (M.D. Pa. 2002) .................... 27
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)................................................ 12
Whitcomb v. Chavis, 403 U.S. 124 (1971)................................................ 24
Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630 (E.D. Wis. 1982) .......................... 7
Constitutional Provisions U.S. Const. art. IV, §4 .............................................. 18 Wis. Const. art. IV, §3 ............................................ 1, 5 Wis. Const. art. IV, §4 ................................................ 7 Wis. Const. art. IV, §5 ................................................ 7 Other Authorities Wendy K. Tam Cho,
Measuring Partisan Fairness, 166 U. Pa. L. Rev. Online 17 (2017)...................... 32 Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731 (1998)....... 11

v
Lisa Marshall Manheim, Redistricting Litigation and the Delegation of Democratic Design, 93 B.U. L. Rev. 563 (2013)..................................... 15
Nathaniel Persily, In Defense of Foxes Guarding Henhouses, 116 Harv. L. Rev. 649 (2002)............................. 6, 14
Jason Stein, Assembly Speaker Mike Sheridan Acknowledges Dating Lobbyist, Wis. State J. (Feb. 2, 2010), http://bit.ly/2oEwNyK ............... 21

STATEMENT OF INTEREST1
Amici are the legislative bodies to which the Wisconsin Constitution assigns the task of drawing state and federal legislative districts. Wis. Const. art. IV, §3. As a result, amici have an obvious interest in defending the constitutionality of their districting map. Amici likewise have an acute interest in ensuring that the task of redistricting remains, as the people of Wisconsin intended, with the legislature, not the judiciary. Finally, as the body responsible for representing constituents throughout the State, the legislature is uniquely well-positioned to explain the State’s history, geography, and politics, as well as the myriad ways in which the decision below distorts the nature of representative democracy in Wisconsin.
SUMMARY OF ARGUMENT
Drawing legislative districts is no mean feat. Not only does it entail sensitive policy judgments and political compromises, but it also is subject to a host of complex and often competing federal and state law demands, failure to adhere to any one of which is likely to prompt a lawsuit. Unsurprisingly, then, for decades, the decennial task of redistricting in Wisconsin has devolved into a decennial chore of litigation. In the 1980s, 1990s, and 2000s, plaintiffs from one party or another sued in federal court, and in the face of divided government, partisan gridlock, and
1 Counsel for all parties have consented to this filing. No counsel for any party authored this brief in whole or in part, and no entity or person, aside from amici curiae, their members, and their counsel, made any monetary contribution toward the preparation or submission of this brief.

2

the competing demands of redistricting law, federal judges were forced to impose districting plans for use in state legislative elections.

In 2011, the Wisconsin legislature finally was able to overcome those obstacles and enact a politically accountable districting plan that, after a tweak to a single line separating two assembly districts, satisfied all then-extant state and federal legal requirements. Once again, however, a federal court has intervened, becoming the first court in decades to purport to divine a legal basis to invalidate a districting plan as an unconstitutional partisan gerrymander.

That decision is not just wrong, but dangerously

so. First, it imposes on state legislatures a

constitutional requirement so amorphous as to

threaten their ability to carry out their

constitutionally assigned task of drawing districts. It

is already hard enough to draw districts that

simultaneously satisfy the myriad state and federal

constraints on districting.

Adding partisan

gerrymandering claims to the mix will all but

guarantee that every legislature, in every redistricting

cycle, will be forced to defend against costly, time-

consuming, and intrusive litigation—even litigation

brought, as here, years after maps were enacted. That

result would serve only to increase the federal

judiciary’s already-outsized role in the redistricting

process, a result that this Court has repeatedly

discouraged and that inevitably transfers to federal

judges and private litigants a power that the people

assigned to elected and accountable legislators.

Making matters worse, the district court allowed plaintiffs to bring partisan gerrymandering claims on

3
a statewide basis, instead of requiring them to proceed district-by-district. That is no mere foot fault. A majority of this Court has already rejected the statewide approach—and for good reason, as it is premised on a supposed right to proportional representation that neither the U.S. Constitution nor the Wisconsin Constitution embraces, and that this Court has repeatedly rejected. Moreover, plaintiffs’ statewide approach reflects a fundamentally mistaken view of how representative democracy works. It treats partisan preference as a determinative and immutable characteristic that has nothing to do with the attractiveness of candidates or the attentiveness of legislators. Election results in Wisconsin show that the exact opposite is true. Voters select candidates based on their personalities, their campaigns, their policies, and their performance once elected. By assuming otherwise, plaintiffs conveniently ignore the reality that Republican gains over the past decade are attributable to effective campaigning and governing, not to partisan gerrymandering.
Plaintiffs’ claim to have found a workable standard for statewide partisan gerrymandering claims is particularly dubious because they have embraced a theory that (perhaps not coincidentally) systematically advantages their preferred political party. As in most States, Democratic voters in Wisconsin are concentrated in urban areas like Madison and Milwaukee, while Republican voters are dispersed more widely throughout the State—a trend that is only intensifying over time. As a result, any districting map based on traditional principles like compactness, contiguity, and municipal lines (which this map concededly was) will appear to have a built-

4
in pro-Republican bias that “wastes” Democratic votes in urban areas. In fact, even the court-drawn plans over the past three decades produced the same type of pro-Republican “bias” as the plan challenged here.
If there really is a standard by which courts can adjudicate partisan gerrymandering claims, surely it is not one that flunks the test of partisan neutrality (by systematically advantaging one party) and treats the natural consequences of political geography and compliance with traditional districting principles as evidence of a plan’s unconstitutionality. The district court’s contrary conclusion is profoundly out of step with this Court’s jurisprudence, with decades of lower court decisions rejecting comparable claims, and with basic norms of representative democracy.
ARGUMENT
I. Partisan Gerrymandering Claims Subvert The State Redistricting Process.
Nearly half a century ago, this Court expressed concern about standards so demanding and litigationinviting that the decennial task of redistricting would be “recurringly removed from legislative hands and performed by federal courts.” Gaffney v. Cummings, 412 U.S. 735, 749 (1973). The decision below makes that fear a reality, adding an amorphous prohibition on partisan gerrymandering to the ever-growing list of legal constraints on the state redistricting process. As the recent history of redistricting in Wisconsin reflects, such a novel limitation inevitably will produce additional litigation, additional intrusions into the legislative process, and additional federal supervision of state elections.

5
Indeed, partisan gerrymandering claims pose a uniquely potent threat to state autonomy: They are so easy to allege that they will be filed after almost every election; every standard that has ever been proposed for adjudicating them is so indeterminate that the inevitable litigation will be utterly unpredictable; and they provide plaintiffs with such an easy way to pierce the legislative privilege that the potential for abuse will be ever-present. Allowing claims like plaintiffs’ to proceed would therefore wrest control over the districting process away from the state legislators to whom state constitutions assign the task, and hand it to federal judges, opportunistic plaintiffs, and social scientists seeking to convert academic theories into constraints on the democratic process. This Court should not permit such an unwarranted and unproductive interference in the core sovereign function of redistricting.
A. Wisconsin’s Redistricting History Vividly Illustrates the Difficulties of Enacting a Map That Complies With All Federal and State Law Requirements.
The Wisconsin Constitution, like that of almost every State, assigns the task of redistricting to the legislative branch. See Wis. Const. art. IV, §3. That is no accident: Redistricting is not just some formulaic line-drawing exercise; it is a substantive act of policymaking. Assigning citizens to electoral districts requires “tough value-laden decisions” about “how communities should be represented” and how to foster “service relationships between representatives and constituents that fit into larger public policy programs.” Nathaniel Persily, In Defense of Foxes

6
Guarding Henhouses, 116 Harv. L. Rev. 649, 679 (2002). Those tough decisions, like all other policy choices, are best made as part of the “give-and-take of the legislative process,” Jensen v. Wis. Elections Bd., 639 N.W.2d 537, 540 (Wis. 2002), by legislators who can undertake a “careful assessment of local conditions.” Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 801 (2017).
Even before the decision below, however, state legislatures had been forced to surrender a substantial portion of their constitutionally conferred policymaking discretion to the courts. In recent years, courts have taken up “seemingly permanent residency” in the state redistricting process, Jensen, 639 N.W.2d at 540, enforcing at least five federal-law limitations on state redistricting.
Specifically, under this Court’s precedents interpreting the Equal Protection Clause and the Voting Rights Act (“VRA”), a state legislature must (1) draw districts with nearly perfect population equality, Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016), and must not (2) dilute the voting strength of sufficiently large and politically cohesive minority groups, Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); (3) cause retrogression in minority voting strength in jurisdictions covered by Section 5 of the VRA, Ala. Legislative Black Caucus v. Alabama (“ALBC”), 135 S. Ct. 1257, 1273 (2015); (4) allow racial considerations to predominate over traditional districting principles absent a compelling interest (notwithstanding the VRA’s command to consider the impact of district lines on minority voters), BethuneHill, 137 S. Ct. at 797; or (5) purposefully discriminate

7
against minority voters, Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960). Creative plaintiffs inevitably try to impose even more federal restrictions. See, e.g., Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 847-49 (E.D. Wis. 2012) (describing nine separate federal causes of action asserted in prior districting litigation).
Those not-always-harmonious federal districting requirements exist alongside still more restrictions imposed by state law. In Wisconsin, for example, the state constitution requires the legislature to draw districts that are “bounded by county, precinct, town or ward lines”; are “in as compact form as practicable”; and “consist of contiguous territory.” Wis. Const. art. IV, §4. The legislature also must not split any assembly districts while drawing senate districts, id. §5, and it must comply with a substantial body of case law imposing additional constraints on the redistricting process, see generally Jensen, 639 N.W.2d at 543.
The overlap and interplay among and between those rules has contributed to the unfortunate reality that redistricting in Wisconsin is “almost always resolved through litigation rather than legislation.” Id. at 540. In fact, every districting cycle since 1972 has included trips to federal court. Baldus, 849 F. Supp. 2d at 843. In the 1980 cycle, the governor vetoed the legislature’s plan; in the 1990 cycle, another veto threat prevented the legislature from passing a plan; and in the 2000 cycle, no plan materialized because a divided legislature could not overcome partisan gridlock. JS.App.9-11; see Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630 (E.D. Wis. 1982);

8
Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis. 1992); Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366, 2002 WL 34127471 (E.D. Wis. May 30, 2002). All three times, plaintiffs filed lawsuits alleging that the prior decade’s plan had become unconstitutional, and all three times, federal courts imposed plans of their own design. JS.App.9-11.
As that history reflects, the decennial task of redistricting has already become less of a legislative affair than a judicial task, with the state legislature frequently prevented from bringing its policy expertise to bear on the redistricting process. But in 2011, after three decades of litigation and court-drawn plans, the legistature finally broke through: After months of fulltime work by legislative aides meeting with caucus members and drafting maps that complied with traditional criteria,2 the Wisconsin legislature passed a districting plan (“Act 43”) that obtained the governor’s approval and, after minor tweaks, survived challenges under state law, the VRA, and this Court’s racial gerrymandering precedents. That plan, moreover, scrupulously complied with traditional districting criteria and—because of the legislature’s concerted effort to improve upon the prior court-drawn plans—compared favorably to those plans on measures of compactness, municipal splits, and population deviations. Appellant.Br.62. Indeed, the plaintiffs in this case have not claimed that a single
2 For a summary of the extensive legislative efforts that led to Act 43, see Appellant.Br.13-16; JA156-86; and the Declaration of Adam R. Foltz in Support of Application For Stay Pending Appeal.

9
district violated traditional districting criteria. JS.App.235.
Yet not even that once-in-a-generation feat was enough to keep redistricting under state control. Four years and two election cycles after Act 43’s enactment, a group of plaintiffs filed this partisan gerrymandering challenge in federal court. And after trial (and the third of only five anticipated elections under Act 43), a divided three-judge district court declared that it had divined a workable standard for partisan gerrymandering claim. Without advance warning, the court then applied its newly announced standard to invalidate the State’s first legislatively drawn map in decades as an unconstitutional partisan gerrymander.
B. Partisan Gerrymandering Claims Will Cause Unprecedented Levels of Federal Intrusion Into the State Redistricting Process.
The decision below, if allowed to stand, would extinguish any last hope for a redistricting cycle without a lawsuit. As difficult as it already is to keep redistricting out of the courts, allowing partisan gerrymandering claims like plaintiffs’ to proceed (much less prevail) will make federal-court litigation unavoidable. That result will inevitably increase the influence of unaccountable actors on the state redistricting process, which would do far more to undermine than to advance the “fair and effective representation” that redistricting is intended to promote. Reynolds v. Sims, 377 U.S. 533, 565-66 (1964).

10
Unlike drawing districts on the basis of race, which has no place in redistricting absent a compelling state interest, Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017), the use of partisan considerations in districting is a “lawful and common practice.” Vieth v. Jubelirer, 541 U.S. 267, 286 (2004) (plurality op.). As a result, “there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation.” Id. at 286. And just as nature abhors a vacuum, “court action that is available tends to be sought.” Id. at 300. The decision below thus stands an open invitation for disgruntled voters to ask courts to second-guess the sensitive policy judgments that underlie redistricting legislation.
Worse still, the decision below would make partisan gerrymandering claims available to a virtually limitless universe of plaintiffs. In the racial gerrymandering context, plaintiffs have standing only if they actually live in a gerrymandered district. ALBC, 135 S. Ct. at 1265. Here, however, the district court permitted plaintiffs to proceed even though they did not allege any harm from gerrymandering in their own districts. Lead plaintiff William Whitford, for example, admitted that Act 43 has not affected his ability to elect a Democratic representative because his Madison-based district was heavily Democratic under both Act 43 and the prior plan (and virtually any plan that comports with traditional districting principles). Appellant.Br.19. The district court’s expansion of standing not only is wrong as a legal matter, see Appellant.Br.27-34, but also magnifies the already-strong temptation to bring lawsuits, as it grants every voter in the state the power to ask the

11
courts to intervene in the redistricting process, even if his candidate of choice was elected under the challenged plan.
Moreover, because of the indeterminacy of the district court’s partisan-effects test—and indeed of any test seeking to discern whether an inherently partisan body has been “too partisan”—the outcome of litigation will be uncertain enough that no claim will be too speculative to file (or to dismiss on the pleadings). As this Court recognized in Vieth, “the vaguer the test for availability, the more frequently interest rather than necessity will produce litigation.” 541 U.S. at 300-01 (plurality op.). As a result, “factions that foresee ultimate defeat in the political process” inevitably will obstruct redistricting or file lawsuits “in the hope of throwing the enterprise into courts where they may fare better.” Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731, 735 (1998). Proving the point, plaintiffs here turned to the courts for assistance only after losing three consecutive statewide races for governor and failing to earn a majority of statewide votes in three of the past four Assembly elections. See JS.App.244-45 (“[T]he Republican Party is not a minority party in Wisconsin.”).
Because partisan gerrymandering claims will be easy to file and difficult to dismiss on the pleadings, they provide plaintiffs with an ancillary benefit too good to pass up: the ability to pierce the legislative privilege and force members of the other political party to open their deliberative process to public view. In the normal course, state legislators enjoy absolute

12
immunity in federal court for their legislative acts. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998). That immunity, which derives from federal common law, reflects the reality that legislators “acting collectively to pursue a view of the public good” must remain “free to represent their constituents without fear of outside interference that would result in private lawsuits.” Biblia Abierta v. Banks, 129 F.3d 899, 903 (7th Cir. 1997).
As a corollary to legislative immunity, state legislators enjoy a testimonial privilege, which protects them and their aides “from compelled disclosure of documentary and testimonial evidence” about the legislative process. Favors v. Cuomo, 285 F.R.D. 187, 209 (E.D.N.Y. 2012); see also Gravel v. United States, 408 U.S. 606, 616-17 (1972) (“[T]he dayto-day work of ... aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos”). This legislative “privilege applies whether or not the legislators themselves have been sued.” EEOC v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011).
In recent years, however, courts have concluded with alarming frequency that the testimonial privilege evaporates in redistricting cases. Rather than holding plaintiffs to the traditional methods for proving legislative intent, see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977), courts have been increasingly willing to pierce the legislative privilege and allow plaintiffs to depose or subpoena legislators about the details of the process leading to the enactment of challenged districting plans. These courts, usually applying a five-factor test

13
developed in Rodriguez v. Pataki, 280 F. Supp. 2d 89, 101 (S.D.N.Y. 2003), balance away the legislative privilege on the specious ground that “conversations between and among legislators” are “the most probative evidence of intent.” Benisek v. Lamone, No. 1:13-cv-03233-JKB, 2017 WL 959641, at *8 (D. Md. Mar. 13, 2017); see also, e.g., Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 339-45 (E.D. Va. 2015); Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 11-C-5065, 2011 WL 4837508, at *6 (N.D. Ill. Oct. 12, 2011). As long as “partisan intent” is an element of the cause of action, district courts will continue to strike the same balance, turning a narrow exception to legislative privilege into the rule in partisan gerrymandering cases.
Redistricting litigation in Wisconsin has been no exception. In a prior dispute over Act 43, plaintiffs issued a third-party subpoena to a legislative aide for the Wisconsin State Senate Majority Leader, seeking to depose him and acquire all documents that were used during the redistricting process. Baldus v. Brennan, Nos. 11-cv-562 & 11-cv-1011, 2011 WL 6122542, at *1 (E.D. Wis. Dec. 8, 2011). The State asserted legislative privilege and moved to quash the subpoena, but the district court denied the motion. Although the court acknowledged that piercing the legislative privilege could have a “future ‘chilling effect’ on the Legislature,” it believed that harm was “outweighed by the highly relevant and potentially unique nature of the evidence.” Id. at *2.
The combined effect of decisions devaluing legislative privilege and the temptations provided by partisan gerrymandering claims offers plaintiffs easy

14
access to their political rivals’ otherwise confidential communications. That is no small concern, as legislative communications about redistricting are even more sensitive (and more valuable to the opposing party) than typical legislative deliberations. They can reveal how legislators think about particular political races, which incumbents they might view as vulnerable, which incumbents they considered pairing, and how they engage in intra-caucus decisionmaking. And on top of all that, there is at least some political value in subjecting a legislator from the other party to the “cost and inconvenience” of compulsory process. Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
Partisan gerrymandering claims also increase the influence of unaccountable actors at the expense of officials ultimately accountable to the voters. Federal courts, as already discussed, are omnipresent in state redistricting, bringing “delay and uncertainty … to the political process” and “partisan enmity … upon the courts.” Vieth, 541 U.S. at 301 (plurality op.). And that federal-court involvement is by no means guaranteed (or even particularly likely) to lead to better districting maps: While legislators know every detail of their own districts and have unfettered access to their colleagues’ collective knowledge, federal courts must draw district lines from a “cold record” of maps and charts rather than personal knowledge of on-the-ground facts. Accordingly, courts are more likely than legislators to disrupt cooperative projects or split communities of interest that may not be apparent from maps alone. See Persily, supra, at 678 n.95 (recounting author’s experience as court-

15
appointed mapdrawer, during which he unwittingly disrupted an ongoing environmental project).
Just as problematic, partisan gerrymandering claims give redistricting litigants (and the organizations that fund or control their conduct) immense influence over the districting process. A court cannot adjudicate a gerrymandering claim until someone files a lawsuit, and even then, the court’s analysis is limited to the challenged aspects of the plan. While legislators must consider the competing input and concerns of all voters when redistricting, redistricting litigants can elevate their own particular concerns and make them the focus of the analysis. Yet despite this far-reaching power—and despite the fact that successful redistricting litigation will impact every voter in the state—there is no mechanism in place to ensure that litigants are representative of the general electorate or that they adequately protect the rights of non-litigants. See Lisa Marshall Manheim, Redistricting Litigation and the Delegation of Democratic Design, 93 B.U. L. Rev. 563, 609-10 (2013).
Functionally speaking, redistricting litigants are bringing class-action claims without any of the procedural safeguards that apply in other types of aggregate litigation: There is no requirement that litigants’ objections to the plan be typical, no requirement that legal representation be adequate, and no inquiry into potential conflicts between attorneys and non-litigants. Id. at 600. Nor is there any obvious mechanism for successful defendants to prevent relitigation when another voter files a similar claim. Cf. Cooper, 137 S. Ct. at 1467-68 (rejecting preclusion argument).

16
Finally, the threat of partisan gerrymandering claims would have the perverse effect of increasing the legislature’s attention to partisan concerns. After drawing districts to comply with federal law and traditional principles, legislators would have to check whether the resulting map unduly “favored” one party, which is a real risk since traditional districting principles tend to concentrate voters with shared views, and Democratic voters tend to be concentrated in urban areas. See infra Part III. If this forced consideration of partisan affiliation yielded a yellow flag, legislators would then be required to adjust districts on explicitly partisan terms—i.e., to engage in partisan gerrymandering—to undo the plan’s naturally occurring “partisan slant.”
Those adjustments not only would make plans more difficult to pass through the legislature, and not only would invite partisan gerrymandering claims from members of the other political party, but would come at great cost to traditional districting principles. For example, ensuring a satisfactory score on the “efficiency gap” test might require pairing an excessive number of incumbent legislators, as occurred in plaintiffs’ expert’s Demonstration Plan in this case. Appellant.Br.65-66. Likewise, a legislative judgment to separate urban areas from rural areas might become constitutionally suspect if urban voters vote primarily for one party and rural voters lean the other way. At a certain point, the legal restrictions placed on redistricting will simply occupy the field, crowding out traditional districting objectives and leaving little (if any) room for legislators to bring their local expertise to bear.

17
II. Statewide Partisan Gerrymandering Claims Rest On A Distorted View Of Electoral Politics And Representative Democracy.
The statewide claims plaintiffs were permitted to pursue in this case pose a particularly acute threat to state sovereignty and legislative prerogative. As explained, plaintiffs do not claim that the purported problems with Act 43 impeded their ability to elect their candidates of choice; to the contrary, the lead plaintiff concedes that his preferred candidate won election in his district. Instead, plaintiffs claim that they were injured by the failure of their preferred candidates in other districts to secure election. A majority of this Court in Vieth already rejected these kinds of statewide claims as nonjusticiable. And for good reason: They are premised on a legal theory that this Court has repeatedly rejected, and on factual assumptions that are inconsistent with how representative democracy works, both in Wisconsin and across the country.
A. The Constitution Does Not Guarantee Proportional Representation.
Partisan gerrymandering claims based on statewide, rather than district-specific, injury are inherently premised on a constitutional right to proportional representation that simply does not exist. This is a case in point. In holding Act 43 unconstitutional, the district court focused principally on two purported measures of partisan impact: “entrenchment” and the “efficiency gap.” JS.App.14577. While those theories may differ in their particulars, at bottom, each is designed to measure the extent to which statewide vote totals for candidates

18
from one party translated into seats for that party in the state legislature as a whole. In the district court’s view, too large a discrepancy between statewide votes and statewide seats inflicts constitutional harm upon members of the “underrepresented” party. And, of course, the baseline against which discrepancy is measured is perfect proportionality. In effect, then, the district court concluded that “there is a right to not have disproportional representation,” which “is tantamount to saying there is a right to have proportional representation.” JS.App.272 (Griesbach, J., dissenting).
That approach—which inheres in any theory based on statewide rather than district-specific injury—cannot be reconciled with this Court’s precedents, which “clearly foreclose any claim that the Constitution requires proportional representation.” Davis v. Bandemer, 478 U.S. 109, 130 (1986) (plurality op.); see also LULAC v. Perry, 548 U.S. 399, 419 (2006) (opinion of Kennedy, J.) (“[T]here is no constitutional requirement of proportional representation.”); Vieth, 541 U.S. at 308 (Kennedy, J., concurring) (finding “no authority” for the proposition “that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth’s congressional delegation”).
The Constitution requires States to implement a “Republican Form of Government,” U.S. Const. art. IV, §4, but it otherwise affords States “significant leeway” in deciding how votes cast by their citizens should translate into representation in the state legislature. Evenwel, 136 S. Ct. at 1133 (Thomas, J., concurring). States are equally free to adopt a district-

19
based scheme, one of proportional representation, or any other apportionment method consistent with a Republican form of government. The differences between those alternative systems simply “reflect different conclusions about the proper balance of different elements of a workable democratic government.” Vieth, 541 U.S. at 358 (Breyer, J., dissenting). The Constitution takes no sides in that debate, and the various compromises reflected concerning representation in the House of Representatives and Senate demonstrate that the Framers were not unalloyedly committed to proportional representation. By granting plaintiffs relief based on purported disproportionality between votes cast and statewide representation, the decision below enshrines a political theory that the Framers allowed the States to reject.
B. Voters Elect Individual Candidates, Not Statewide Delegations.
The problems with partisan gerrymandering claims, especially statewide claims, are not just theoretical. The assumptions built into such claims do not accord with the realities of representative democracy, in Wisconsin or elsewhere. First, equating a vote for an individual candidate to a vote for a statewide political party misguidedly assumes that the only factor determining voting behavior is political affiliation. That is “assuredly not true.” Vieth, 541 U.S. at 288 (plurality op.). In reality, there are “separate elections between separate candidates in separate districts, and that is all there is.” Id. at 289. The district court’s contrary assumption is especially out of place in Wisconsin, a quintessential “purple

20
state,” where primaries are open and voters “regularly elect comparable numbers of Democrats and Republicans.” Baldus, 849 F. Supp. 2d at 843; see Democratic Party v. Wisconsin, 450 U.S. 107, 110-11 (1981).
Sure enough, election results in Wisconsin reveal an electorate that chooses candidates based on their records and positions, not just their political parties. Examples abound of state legislative candidates substantially outperforming (or underperforming) the Presidential candidate in their districts. In Assembly District 96, for instance, Republican Lee Nerison has held his seat since 2005 even though his constituents overwhelmingly supported President Obama in 2008 and 2012.3 In those two elections, Nerison earned 51.7% and 59.5% of the two-party vote, while John McCain and Mitt Romney received just 38.2% and 43.6% of the Presidential two-party tally. Likewise, Republican Travis Tranel defeated a Democratic incumbent in District 49 in 2010 and then held his seat in 2012, outperforming Romney by 11 points. Not coincidentally, both legislators have crossed party lines on occasion, including by opposing the highly contentious Budget Repair Bill of 2011.4
The same dynamic is evident in districts that have changed hands within the same districting cycle. For

3

Election

results

are

available

at

http://elections.wi.gov/elections-voting/results.

4 The Wisconsin Assembly’s roll call vote on the Budget Repair Bill is available at http://docs.legis.wisconsin.gov/ 2011/related/votes/assembly/av0184. For discussion of the controversy surrounding the bill, see State v. Fitzgerald, 798 N.W.2d 436, 442-443 (Wis. 2011) (Prosser, J., concurring).

21
example, in District 92—long considered a “safe” Democratic district—Democrat Chris Danou won the seat uncontested in 2012 and earned 56.6% of the twoparty vote in 2014, but was then unseated by a Republican challenger in 2016. In District 75, incumbent Republican Roger Rivard was unseated by a Democratic challenger in 2012, who himself was unseated two years later by Republican Romaine Quinn, who earned 54.9% of the vote in 2014 and 62% in 2016. In District 70, Democrat Amy Sue Vruwink won in 2012, but was then narrowly defeated in 2014 by Republican Nancy VanderMeer. Two years later, VanderMeer defeated a new opponent by 25 points.
The previous decade was no different. In District 28, longtime Republican incumbent Mark Pettis was unseated by Democrat Ann Hraychuck in 2006, who herself was unseated by Republican Eric Severson in 2010. Voters in District 68 elected a Democrat in 2002, a Republican in 2004, a Democrat in 2008, and a Republican in 2010. And this phenomenon is not confined to traditional “swing” districts. The right candidate at the right time can prevail when an incumbent in even the “safest” seat adopts unpopular positions or loses the trust of his constituency. In 2010, for example, Joe Knilans defeated the embattled Speaker of the Assembly,5 who in 2006 had earned 69.3% of his district’s vote and ran unopposed in 2008.
None of these results—the changes in the party winning certain seats, the substantial deviations in support compared to other candidates of the same
5 See Jason Stein, Assembly Speaker Mike Sheridan Acknowledges Dating Lobbyist, Wis. State J. (Feb. 2, 2010), http://bit.ly/2oEwNyK.

22
party, or the substantially different vote percentages depending on the opposing candidate or performance in office—can be explained by partisan gerrymandering. To the contrary, they reflect the same political factors that have always decided elections: the issues that matter to the electorate, the quality of the candidates and their campaigns, the effectiveness of party organizations, the performance of a candidate once elected, and broader waves at the national level.
Wisconsin voters respond to what is happening in their districts and in Madison; they do not just blindly support one party or the other. By reducing elections to an “R” or “D” on the ballot, the district court undervalued the discernment of Wisconsin voters and oversimplified the nuances of Wisconsin politics. Perhaps the most obvious demonstration of this reality is the increase in Republican seats between the 2012 and 2016 elections. The map did not change, but the results did—because the voters evaluated the relative merits of the candidates and the performance of elected officials in Madison. See infra Part II.D.
Second, a statewide focus wrongly assumes that each voter’s preference for the Democrat or Republican in her district reflects a preference for every Democrat or Republican across the State, and a desire for that party to achieve statewide gains. In reality, voters cast votes for individual candidates in individual districts, “not for a statewide slate of legislative candidates put forward by the parties.” Davis, 478 U.S. at 159 (O’Connor, J., concurring). A voter who generally favors Republicans might vote for the Democratic candidate in her district if that

23
candidate prioritizes issues important to her, or if she finds the Republican candidate too extreme, or for any number of other reasons. And while that voter may prefer to see the Democratic candidate prevail in her district, she may prefer the Republican candidate prevail in other districts, and may prefer a majorityRepublican legislature.
As that unremarkable example illustrates, political parties are “big tents” containing voters with widely divergent views about policy, governance, and representation. Baldus, 849 F. Supp. 2d at 851. And that does not even account for consistently independent voters and voters who fear concentrated power, both of whom might prioritize preserving a balance of power in the legislature above whichever candidate they find more attractive in a given election. It thus makes no sense to treat losses by a party’s statewide slate of candidates as inflicting harm on every individual voter who voted for one of those candidates. An individual voter “cannot vote for such candidates,” “is not represented by them in any direct sense,” and might not support them at all. Davis, 478 U.S. at 153 (O’Connor, J., concurring).
C. Voters Who Support Losing Candidates Are Not Deprived of Representation or Access to the Political Process.
Partisan gerrymandering claims also incorrectly presume that voters who supported losing candidates are deprived of representation in the state legislature. That premise is “antithetical to our system of representative democracy.” Shaw v. Reno, 509 U.S. 630, 648 (1993). In Wisconsin and across the country, legislators represent all of their constituents—not just

24
the ones who voted for them. While a losing candidate’s supporters might be “without representation” by their candidate of choice, Whitcomb v. Chavis, 403 U.S. 124, 153 (1971), courts “cannot presume … that the candidate elected will entirely ignore the interests of those voters.” Davis, 478 U.S. at 132 (plurality op.). Instead, those voters are “deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district.” Id. at 132.
Because voters are represented even if they voted for the losing candidate, this Court has rejected equal protection claims that are based merely on the fact “that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice.” Id. at 131-32. In Whitcomb, for instance, this Court rejected gerrymandering claims filed by minority voters who were submerged within a multi-member district. 403 U.S. at 149-53. While the Court acknowledged that those voters had been unable to elect their candidates of choice, it rejected their claims because they failed to show that they were unable to participate in and influence the political process. Id.; see also City of Mobile v. Bolden, 446 U.S. 55, 111 n.7 (1980) (Marshall, J., dissenting) (“When all that is proved is mere lack of success at the polls, the Court will not presume that members of a political minority have suffered an impermissible dilution of political power.”).
Setting aside the problem that plaintiffs do not even claim that they were unable to elect their

25
candidates of choice in their own districts, this Court’s repeated holdings make crystal clear that plaintiffs must show more than the failure to win elections to prevail on partisan gerrymandering claims. And plaintiffs’ myopic focus on election results not only contravenes this Court’s precedents, but also obscures how legislators serve their constituents and how constituents influence their legislators. Wisconsin voters cast their votes in private, with their choices protected by the sanctity of the ballot box. Those who voted for the losing candidate have as much access to sitting legislators as anyone else, whether they “seek help in dealing with a government agency, to express a view about pending legislation, or to request help in securing funds for repairing a local bridge or extending a state bike trail.” JS.App.289 (Griesbach, J., dissenting). The name of the majority party has no bearing on a great many of the services that legislators provide their constituents on a day-to-day basis.
Moreover, voters can influence the political process in myriad ways beyond voting for state legislators. A minority party that entrenches itself and legislates in ways that are unpopular with the majority of voters is unlikely to maintain control of the legislature in a state like Wisconsin, no matter where district lines are drawn. But even if a minority party truly “entrenches” itself in a state legislature, “the majority should be able to elect officials in statewide races—particularly the Governor—who may help to undo the harm that districting has caused the majority’s party,” Vieth, 541 U.S. at 362 (Breyer, J., dissenting), whether by vetoing legislation or wielding influence in the next round of redistricting. That built-in structural check is far preferable to an

26
intrusive judicial check that rests on dubious premises and unadministrable tests. And even apart from elections for statewide office, voters are members of countless political, social, and economic groups that can “bind together into coalitions having enhanced influence, and have the respectability necessary to affect public policy.” Bolden, 446 U.S. at 111 n.7 (Marshall, J., dissenting).
Furthermore, treating all votes cast for the losing candidate as “wasted” ignores the significant influence those votes have on legislative behavior. The premise of plaintiffs’ “efficiency gap” theory is that any vote not essential to the election result is a “wasted” vote. Appellant.Br.48-49. But these so-called “wasted votes” often are determinative of how legislators govern. An unexpectedly close election often serves as a “wake-up call” for the incumbent. Votes for the losing candidate in such races can force the winning candidate to “adopt more moderate, centrist positions” and to be more responsive to independent and swing voters. JS.App.287 (Griesbach, J., dissenting). Similarly, “wasted” votes for the winning candidate in a landslide may allow that candidate to move further from the center, as he will likely be more concerned about a primary challenge from within the party than a threat from the other party. Id. None of these votes is truly “wasted,” and any theory that claims otherwise is antithetical to the realities of representative democracy.
D. Party Affiliation Is Not an Immutable Characteristic.
Finally, statewide partisan gerrymandering ignore the reality that “voters can—and often do—

27
move from one party to the other.” Davis, 478 U.S. at 156 (O’Connor, J., concurring). Each election cycle, “the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change— everything changes.” Vieth, 541 U.S. at 289 (plurality op.). Unlike the racial gerrymandering context, where the classification at issue is based on an “immutable” characteristic, see id. at 287, courts cannot simply assume that how a voter voted in the past election— or even the past two or three elections—necessarily dictates what results that voter would prefer to see in the next election.
The subsequent history of the districts at issue in Vieth proves the point. The Vieth plaintiffs alleged that Pennsylvania’s congressional plan was “rigged to guarantee that thirteen of Pennsylvania’s nineteen congressional representatives will be Republican.” Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 546 (M.D. Pa. 2002). But in elections held just two years after this Court found those claims nonjusticiable, a majority of Pennsylvania’s congressional seats were won by Democrats, with Republicans retaining just eight of the 13 supposedly “guaranteed” seats. See JS.App.243. That result mirrored one that this Court discussed in Vieth: In elections held just five days after a district court ruled that North Carolina’s system for electing judges disadvantaged Republican candidates, every single Republican candidate running for superior court judge was victorious. Vieth, 541 U.S. at 287 n.8 (plurality op.).
That lesson applies with extra force in Wisconsin, where winning elections frequently requires support

28

from independent voters and from members of the

other party, and where yesterday’s votes do not

guarantee tomorrow’s victories.

The 2016

Presidential election is illustrative. In 2008,

President Obama carried 59 of Wisconsin’s 72

counties. In 2016, President Trump carried 60 of

Wisconsin’s 72 counties—capturing 47 counties that

President Obama had won. Thus, in the span of eight

years—less than the lifespan of a decennial districting

map—nearly two-thirds of Wisconsin’s counties

flipped their party preference as measured by their

presidential candidate of choice. As that reflects,

voters’ party affiliation is simply not set in stone, and

seats held by one party can (and do) change hands

when effective candidates run effective campaigns.

State legislative election results in Wisconsin over the past two decades confirm the point, as they reveal significant intra-decade volatility in partisan balance—i.e., the partisan balance changed even when the maps stayed the same. After the 2002 election, which was held under a districting plan imposed by a federal court, Republicans held majorities in both chambers of the state legislature. After three more elections—and with no intervening changes in district lines—Republicans had lost control of both chambers, losing three senate seats and 12 assembly seats. Then, in the final election held under that court-drawn plan, Republicans regained all they had lost (and then some). The same types of intra-decade changes have continued under Act 43. After the first election under Act 43, Republicans held 18 senate seats and 60 assembly seats. In the two subsequent elections under the same plan, Republicans have picked up two senate seats and added four assembly seats.

29
There is a simple explanation for those evershifting election results: Sometimes one party’s candidates do a better job than their counterparts at earning votes. The election results under Act 43 show exactly that, even after controlling for the placement of district lines. During the 2010 redistricting process, legislative aides developed a “composite partisan score,” which was an objective measure derived from statewide election results over the previous decade. JS.App.17; see SA325-26. If a new district had a composite score of 52%, for example, that meant that the residents of the new district cast 52% of their votes for Republican candidates in statewide elections between 2004 and 2010. See Appellant.Br.15.
Twenty-nine of the Assembly districts in Act 43 had composite scores between 45% and 55%. SA32526. Those districts were expected to be the most competitive, and therefore made perfect test cases for whether individual candidates and campaigns really matter. Put differently, elections in those districts reveal whether Republican or Democratic candidates have had more success persuading voters since Act 43 was enacted. If candidates do not matter and party affiliation rarely changes (as the district court assumed), then the results of the 2012, 2014, and 2016 elections should have closely tracked the composite scores. But if voters respond to individual campaigns and are willing to cross party lines for better candidates, then those election results should diverge from the results predicted by the composite scores.
The results have been clear and consistent: Republican candidates outperformed the composite score in the vast majority of elections held in

30
competitive districts. In the 75 contested races held in competitive districts between 2012 and 2016, Republican candidates outperformed the composite score a whopping 62 times (and by an average of six percentage points), while Democratic candidates outperformed the composite score only 13 times (and by an average of only three percentage points). Those results show that voters in competitive districts voted for Republican candidates far more often than they did in the previous decade. And because the composite scores incorporated Act 43’s district lines, the increased support for Republicans cannot be attributed to gerrymandering; the only explanation is that, for any number of reasons, more voters found the Republican candidates more attractive.
That same data support another conclusion. In the 19 contested elections between 2012 and 2016 in competitive districts that were expected to lean toward the Democratic candidate—i.e., in districts with composite scores between 45.0% and 49.9%—the Democratic candidate in fact prevailed only five times. But in the 56 contested elections that were expected to lean toward the Republican candidate—i.e., in districts with composite scores between 50.1% and 55.0%—the Republican candidate prevailed 51 times. Put differently, Republican candidates won almost all of the close races they were expected to win and almost all of the close races they were expected to lose; had Democratic candidates achieved the same feat, the balance of power in the legislature would have shifted the other direction. That puts the lie to plaintiffs’ claims that Act 43 somehow made it impossible for the Democratic Party to win a majority in the state legislature. In reality, all the party needed to do is

31
what a political party always must do to win a majority: run better campaigns and win more competitive races. That plaintiffs’ political party of choice failed to do so does not entitle them to look to the courts for an enhanced result.
III. Any Viable Test For Partisan Gerrymandering Would Need To Be Neutral, Yet Plaintiffs’ Proposed Test For Identifying Partisan Gerrymandering Systematically Favors Their Political Party Of Choice.
It is no accident that plaintiffs are fixated on establishing a theory that would allow them to bring statewide, rather than district-specific, partisan gerrymandering claims. Plaintiffs are acutely aware of the reality that the political landscape of Wisconsin—and of most States that feature both highpopulation cities and geographically large rural areas—means that Democratic voters are relatively concentrated in urban areas and Republican voters are relatively dispersed. It is unsurprising, then, that plaintiffs propose a test for identifying partisan gerrymandering that would make any effort by a Republican-controlled Legislature to take advantage of that political landscape automatically suspect, while treating any efforts by a Democraticallycontrolled legislature to divide and distribute concentrated Democratic voters as ameliorative.
That alone is reason enough to reject their theory as incompatible with the Constitution. The sine qua non for any viable test for impermissible partisan gerrymander should be partisan neutrality. To ensure that the public perceives the courts as neutral arbiters of constitutional principles, any test must equally

32
constrain Democratically-controlled state legislatures and Republican-controlled state legislatures alike. Whatever constraints the Equal Protection Clause may place on a legislature’s consideration of partisan impact when drawing maps, surely those constraints cannot be designed to systematically favor one political party. Both plaintiffs’ initial theory and the one applied by the district court fail this test.
In the district court, plaintiffs sought to prove partisan gerrymandering principally by relying on their so-called “efficiency gap” measurement—a measurement that the district court treated as “corroborative evidence” of partisan gerrymandering. The “efficiency gap” measurement is calculated by taking the difference between the “wasted” votes cast for each party statewide, and then dividing that figure by the total number of votes cast in the election. JS.App.160-61, 176. The party whose voters cast the fewest “wasted” votes is said to have translated votes into legislative seats more “efficiently” than the other party. JS.App.161. According to the plaintiffs, an efficiency gap of 7% or more should render a plan presumptively unconstitutional. JS.App.33-34.
Treating all votes for losing candidates and excess votes for winning candidates as “wasted” not only misunderstands how voting affects legislative behavior, see supra Part II; and not only draws a false equivalence between “excess” winning votes and “excess” losing votes, see Wendy K. Tam Cho, Measuring Partisan Fairness, 166 U. Pa. L. Rev. Online 17, 35-36 (2017); it also ignores how physical and political geography impact election results— particularly when districts must achieve population

33
parity (as the federal constitution requires) and comply with traditional districting criteria (as the state constitution requires).
While “Democratic voters are uniquely packed in urban centers like Milwaukee and Madison,” JS.App.201, Republicans are more evenly dispersed throughout the State. Naturally occuring Republicanleaning areas thus tend to be more politically diverse than Democratic-leaning ones. For example, while “there are a substantial number of wards that are over eighty percent Democratic,” there are “virtually no wards that are similarly Republican.” JS.App.200. This concentration of Democratic voters in Madison and Milwaukee is only intensifying. In 2000, 2004, and 2016, Wisconsin’s statewide Presidential election results were nearly identical: The Republican candidate’s two-party vote shares were 49.88%, 49.81%, and 50.41%, respectively. The results in Wisconsin’s 72 counties, however, were vastly different. In 2016, President Trump won 15 counties that President Bush lost at least once, and his vote share increased over President Bush’s 2004 vote-share by at least seven points in 36 different counties—i.e., in half of the counties statewide. The overall statewide results stayed the same only because of offsetting Democratic gains in just two populous counties: Dane County (home of Madison) and Milwaukee County.
As those results reflect, Republican voters are becoming more dispersed throughout Wisconsin, while Democratic voters are becoming more concentrated in urban centers. That phenomenon is hardly unique to Wisconsin; while Secretary Clinton won the

34
nationwide popular vote in the 2016 presidential election, she prevailed in only 487 of the Nation’s approximately 3,100 counties. The clear reality is that “Democrats have often been concentrated in cities while Republicans have often been concentrated in suburbs and sometimes rural areas.” Vieth, 541 U.S. at 359 (Breyer, J., dissenting). And because of those geographic realities, elections in Democratic-leaning districts are more likely to be landslides, while elections in Republican-leaning districts are more likely to be close calls.
Not so coincidentally, those two outcomes are precisely what result in the most “wasted” votes for Democratic candidates under plaintiffs’ “efficiency gap” theory. When a party wins a seat by a large margin (as often happens for Democrats in districts encompassing large cities like Madison and Milwaukee), the thousands of votes above 50%-plusone for the winning candidate all are marked as “wasted.” For example, when Democratic Rep. Chris Taylor won District 76 (in Dane County) in an 83-17 landslide, more than 13,000 Democratic votes were “wasted.” Likewise, when a party loses a close race (as often happens to Democrats in the rest of the State), the thousands of votes cast for the losing candidate all are marked as “wasted.” For example, when Rep. Treig Pronschinske defeated a Democratic incumbent in District 92 by just four points, all 12,540 Democratic votes were “wasted.”
As a result, it is nearly impossible to draw districting maps in Wisconsin that comply with oneperson, one-vote and traditional districting principles but do not result in large numbers of “wasted”

35
Democratic votes. See Baumgart, 2002 WL 34127471, at *6 (“[T]he only way to assure that the number of seats in the Assembly corresponds roughly to the percentage of votes cast would be at-large election of the entire Assembly.”). And any effort by a Republican-controlled legislature to tweak districts for partisan advantage will increase the number of “wasted” votes, while any effort by a Democratcontrolled legislature to deviate from traditional districting principles and disperse Democratic voters will reduce the number of wasted votes and be scored as “ameliorative.”
The impossibility of the task is reflected in past court-drawn maps. Federal courts have drawn districting plans for Wisconsin over the past three decades, and even though those plans were drawn by federal judges and designed to be politically neutral, they consistently produced “efficiency gaps” favoring Republicans. JS.App.308-09. In the seven biennial Assembly elections held between 1998 and 2010, the resulting efficiency gap scores all revealed a Republican “bias,” with scores ranging from 4% to 12%, averaging 7.5%, and—quite remarkably— exceeding the 7% that plaintiffs contend makes a plan presumptively unconstitutional five times out of seven. JA223-24. Needless to say, something is terribly wrong with a partisan gerrymandering test would invalidate even court-drawn plans.6
6 To be sure, court-drawn plans might escape invalidation if they are drawn without partisan intent, JS.App.171-72, but it is difficult to see why the truism that partisan bodies are motivated at least in part by political considerations should convert an acceptable plan into an unconstitutional one.

36
Equally telling, plaintiffs’ demonstration plan in this case—which their expert tried to design with “an efficiency gap as close to zero as possible” while complying with traditional districting principles—still resulted in a pro-Republican efficiency gap of 3.89% when adjusted for incumbency effects. JS.App.202-03 & nn.354-355. To repeat: Plaintiffs’ own expert—“a political science professor, hired by the Democraticvoting Plaintiffs, whose entire goal was to try to produce the smallest efficiency gap possible,” and operating without the time pressures that typically constrain the redistricting process, JS.App.267-68 (Griesbach, J., dissenting)—was unable to design a plan that did not result in “pro-Republican bias.” JS.App.202.
As those illustrations reveal, because even neutral districting plans produce a pro-Republican efficiency gap above the 7% threshold, passing the efficiency gap test would require Republican legislators to engage in “heroic levels of nonpartisanship” and to draw district lines that reduce the naturally occurring Republican advantage. JS.App.245-46 (Griesbach, J., dissenting). Yet if Democrats controlled the state legislature, they could draw the most pro-Democratic plan possible—e.g., the demonstration plan that plaintiffs’ expert submitted in this case—without coming close to running afoul of the “efficiency gap” theory.
That alone is reason enough to reject the district court’s reliance on that deeply flawed theory. If there really is a workable standard for partisan gerrymandering claims, surely it is not one with a built-in partisan bias, such that it operates as a

37

constraint on Republican-controlled legislatures but not Democratically-controlled ones. The minimum threshold for any viable test for identifying partisan gerrymandering is that it should be equally opposed by partisan legislative majorities of both parties, and equally welcomed by California Republicans and Utah Democrats. The fact that the district court had to resort to a theory with a built-in partisan bias is a sure sign that if a justiciable test for partisan gerrymandering is out there, no one in this case has identified it.
CONCLUSION
For the foregoing reasons, this Court should reverse the decision below.
Respectfully submitted,

KEVIN ST. JOHN BELL GIFTOS ST. JOHN LLP 5325 Wall Street Suite 2200 Madison, WI 53718

PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY MICHAEL D. LIEBERMAN KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000 paul.clement@kirkland.com

Counsel for Amici Curiae August 4, 2017

 
 No. 16-1161 ================================================================

In The
Supreme Court of the United States

---------------------------------  --------------------------------BEVERLY R. GILL, ET AL.,
Appellants, v.

WILLIAM WHITFORD, ET AL.,

---------------------------------  ---------------------------------

Appellees.

On Appeal From The United States District Court For The Western District Of Wisconsin
---------------------------------  ---------------------------------

BRIEF OF AMICUS CURIAE SOUTHEASTERN LEGAL FOUNDATION
IN SUPPORT OF APPELLANTS
---------------------------------  ---------------------------------

KIMBERLY S. HERMANN SOUTHEASTERN LEGAL
FOUNDATION 2255 Sewell Mill Rd.,
Ste. 320 Marietta, Georgia 30062

JOHN J. PARK, JR. Counsel of Record
STRICKLAND BROCKINGTON LEWIS LLP
1170 Peachtree St., Ste. 2200
Atlanta, Georgia 30309 (678) 347-2208 jjp@sbllaw.net
Counsel for Amicus Curiae

August 4, 2017

================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

i
QUESTION PRESENTED
This case presents issues which this Court has twice confronted without full resolution: Whether political gerrymandering claims are justiciable, and if so, what standards apply. These issues are unsettled and unsettling to the States and localities that may be forced to apply any law that is ultimately established. See Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986). Before this Court resolves the latter issue, amicus notes there is a threshold question of standing which would pretermit any discussion of the merits.
Amicus respectfully restates the first Question Presented as follows:
Whether Plaintiffs’ claims of injury constitute an individualized injury sufficient to establish standing or present only a generalized claim of grievance.

ii
TABLE OF CONTENTS Page
QUESTION PRESENTED................................... i TABLE OF CONTENTS ...................................... ii TABLE OF AUTHORITIES ................................. iii INTEREST OF AMICUS CURIAE...................... 1 SUMMARY OF ARGUMENT .............................. 2 ARGUMENT ........................................................ 3
I. Introduction ............................................... 3 A. Plaintiffs’ allegations .......................... 3 B. The district court’s reasoning on standing ........................................................ 6
II. Plaintiffs have no standing to bring their statewide claims ........................................ 7 A. This Court’s precedent differentiates between claims of particularized injury, which may give rise to standing, and claims of generalized injury, which do not ........................................ 7 B. Plaintiffs lack standing ....................... 10
III. Plaintiffs’ claims lack a constitutional and statutory foundation.................................. 14
IV. Plaintiffs seek to use the Voting Rights Act for improper political purposes ........... 17
CONCLUSION..................................................... 19

iii
TABLE OF AUTHORITIES Page
CASES Ala. Legislative Black Caucus v. Alabama, 135
S. Ct. 1257 (2015) ..................................................2, 9 Albright v. Oliver, 510 U.S. 266 (1994).......................16 Allen v. Wright, 468 U.S. 737 (1984).............................7 Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988),
aff ’d, 488 U.S. 829 (1989)........................................17 Baker v. Carr, 369 U.S. 186 (1962) ................... 6, 12, 13 Bartlett v. Strickland, 556 U.S. 1 (2009) ....................16 Bethune-Hill v. Va. State Bd. of Elections, 137
S. Ct. 788 (2017) ........................................................1 Davis v. Bandemer, 478 U.S. 109 (1986) ...................... i Dillard v. Chilton Cty. Comm’n, 495 F.3d 1324
(11th Cir. 2007)..................................................10, 11 Hall v. Virginia, 385 F.3d 421 (4th Cir. 2004) ............17 Holder v. Hall, 512 U.S. 874 (1994) ............................10 Johnson v. De Grandy, 512 U.S. 997 (1994) .........16, 18 Lance v. Coffman, 549 U.S. 437 (2007)...................9, 10 League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) .................................................15 Lujan v. Def. of Wildlife, 504 U.S. 555 (1992) ...........8, 9 McCrory v. Harris, 137 S. Ct. 1455 (2017) ...................1 New York State Bd. of Elections v. Torres, 552
U.S. 196 (2008) ........................................................17 Nixon v. Kent Cty., 76 F.3d 1381 (6th Cir. 1996) ........16

iv
TABLE OF AUTHORITIES – Continued Page
Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009) ..........................................................1
Shelby County v. Holder, 133 S. Ct. 2612 (2013) .........1 Sinkfield v. Kelley, 531 U.S. 28 (2000)..........................8 United States v. Hays, 515 U.S. 737 (1995) ...... 2, 6, 8, 9 Vieth v. Jubelirer, 541 U.S. 267 (2004) ............. 2, 13, 16 Warth v. Seldin, 422 U.S. 490 (1975) ............................8 Whitcomb v. Chavis, 403 U.S. 124 (1971) ...................18 Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis.
2016) .......................................................... 6, 7, 10, 12
CONSTITUTION U.S. Const. amend. XIV, § 1 ....................................8, 15 U.S. Const. amend. XV, § 1..........................................15
STATUTES 52 U.S.C. § 10301(a)....................................................15 52 U.S.C. § 10301(b)..............................................16, 18
RULES Sup. Ct. R. 37.3(a) .........................................................1 Sup. Ct. R. 37.6 .............................................................1

v
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
Brief of Amici Curiae Leadership of the Alabama Senate and House of Representatives, et al. in Support of Appellees, Vieth v. Jubelirer, 541 U.S. 267 (2004) (No. 02-1580) ...........................13, 14
Message from the President of the United States Related to the Right to Vote, 89th Cong., 1st Sess. (1965).......................................18, 19
Michael A. Carvin & Louis K. Fisher, “A Legislative Task”: Why Four Types of Redistricting Challenges Are Not, or Should Not Be, Recognized by Courts, 4 Election L.J. 2 (2005) ................18

1
INTEREST OF AMICUS CURIAE1
Southeastern Legal Foundation (SLF), founded in 1976, is a national non-profit, public interest law firm and policy center that advocates constitutional individual liberties, limited government, and free enterprise in the courts of law and public opinion. In particular, SLF advocates for the rigorous enforcement of constitutional limitations on the activities of federal and state governments. Its work extends to cases involving redistricting and is reflected in SLF’s filing of amicus curiae briefs in support of efforts to rein in and guide federal judicial and administrative oversight of the states in cases such as Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017), McCrory v. Harris, 137 S. Ct. 1455 (2017), Shelby County v. Holder, 133 S. Ct. 2612 (2013), and Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009).
The recognition of political gerrymandering claims promises only more federal judicial involvement in the unambiguously state function of drawing state legislative districts. Amicus joins Appellants in urging this Court to not open the door to such a wide-ranging, mischief-promising intrusion. Before any political gerrymandering claims are deemed to be
1 All parties have consented to the filing of this brief by blanket consent or individual letter. See Sup. Ct. R. 37.3(a). No counsel for a party has authored this brief in whole or in part, and no person other than amicus curiae, its members, and its counsel has made monetary contribution to the preparation or submission of this brief. See Sup. Ct. R. 37.6.

2
justiciable, this Court should require those who challenge a legislative redistricting plan on political grounds to allege an individualized injury rather than a generalized one.
---------------------------------  ---------------------------------
SUMMARY OF ARGUMENT
This Court “has never held that the racial composition of a particular voting district, without more, can violate the Constitution.” United States v. Hays, 515 U.S. 737, 746 (1995). So, too, should be the case with the political composition of a particular district. It would require a leap over a yawning legal and prudential canyon to invalidate an entire plan because of its political composition.
But that is what the district court did, and it did so by allowing eleven plaintiffs to make a statewide claim. In political gerrymandering claims, as in racial gerrymandering claims, litigation should proceed on a district-by-district basis, not against the State as an “undifferentiated” whole. Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015). Plaintiffs have only a generalized grievance based on group characteristics that make a mockery of the need for a particularized injury.
The Constitution and the Voting Rights Act protect the rights of minority citizens as individuals. However, as this Court has found, they do not protect “farmers or urban dwellers, or Christian fundamentalists or Jews, Democrats or Republicans.” Vieth v.

3
Jubelirer, 541 U.S. 267, 288 (2004) (emphasis added). This Court should reject Plaintiffs’ invitation to enlist the judiciary to help out either political party.
---------------------------------  ---------------------------------
ARGUMENT
I. Introduction
A. Plaintiffs’ allegations.
In their Complaint, Plaintiffs alleged that “[r]egardless of where they reside in Wisconsin and whether they themselves reside in a district that has been packed or cracked[,]” the Wisconsin’s Assembly redistricting plan caused them injury. J.A. 33 at ¶ 16. They explained: “Together with other Democratic voters, plaintiffs have been harmed by the Current Plan’s political gerrymandering because it treats Democrats unequally based on their political beliefs and impermissibly burdens their First Amendment right of association.” Id. 32-33 at ¶ 15.
Plaintiffs go on to state which district and county each of them lives in. Id. 33-36 at ¶¶ 17-27. For the most part, they leave it at that.
Several Plaintiffs say more.
In the context of Milwaukee, Ozaukee, Washington, and Waukesha Counties, which cover Districts 22, 23, and 24, Plaintiffs complain that the Legislature’s plan turned District 22 from a Democratic district to a Republican one. Id. 50 at ¶¶ 60-62. Plaintiff Harris says she lives in District 22, without more. Id. 34 at

4
¶ 21. Plaintiff Wallace, who lives in District 23, complains that, “[i]n addition to the injury suffered by all Democrats in Wisconsin,” he was injured when “Democrats in District 22 were cracked so that his previously Democratic district is now a Republican district.” Id. 35-36 at ¶ 26. However, in the Complaint, Plaintiffs admit that a Republican candidate won District 23 in 2008, and the district would remain Republican under Plaintiffs’ Demonstration Plan. Id. 50 at ¶ 60.
In the context of Calumet, Fond du Lac, Manitowoc, and Sheboygan Counties, Plaintiffs complain that District 26 was turned from a Democratic district to a Republican one. Id. 50-51 at ¶¶ 63-65. Plaintiff Donohue, who says she lives in District 26, alleges she was harmed “when the City of Sheboygan was split into District 26 and 27 and District 26 was cracked and converted from a Democratic to a Republican district.” Id. 34 at ¶ 20.
In the context of Racine and Kenosha Counties, Plaintiffs claim that they lost one Democratic district, going from four Democratic and two Republican seats to three of each. Id. 51-52 at ¶¶ 66-68. They state that the Republicans won District 66 in 2008, and claim that a Democrat would win under their plan. Id. 52 at ¶ 66. Moreover, a Democrat won District 66 in 2012. Id. at ¶ 67. Plaintiff Mitchell, who lives in District 66 which elected a Democrat, complains that the plan’s

5
dilution of her vote “reduced the number of Democratic seats in her region.” Id. 35 at ¶ 24.2
With respect to Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties, which contain Districts 67, 68, 91, 92, 93, 94, and 95, Plaintiffs claim that they lost one seat as the result of the plan. Id. 53-54 at ¶¶ 69-71.3 Plaintiff Johnson, who lives in District 91, alleges that she was harmed “when Democratic voters were packed into District 91, wasting their votes and diluting the influence of Ms. Johnson’s vote, as part of a gerrymander that reduced the number of Democratic seats in her region.” Id. 34-35 at ¶ 23. The Democrats won District 91 in 2008 and in 2012 and would win it under Plaintiffs’ plan. Id. 53 at ¶¶ 69-70.
With respect to Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties, which contain all or part of Districts 42, 47, 69, 70, 71, 72, 85, and 86, Plaintiffs complain that they lost two seats. Id. 54-55 at ¶¶ 72-74.
With respect to Brown and Manitowoc Counties, which contain Districts 1, 2, 4, 5, 25, 88, 89, and 90 in
2 Plaintiff Jensen says he lives in District 63. J.A. 34 at ¶ 22. District 63 was won by a Republican in 2008 and 2012, although a Democrat would win it under Plaintiffs’ plan. Id. 52 at ¶¶ 6667.
3 Plaintiffs also assert an “opportunity cost claim”: if their plan were adopted, they would win six of the seven districts. See J.A. 53 at ¶ 69.

6
the prior plan, Plaintiffs complain that they lost one seat. Id. 55-56 at ¶¶ 75-77.
B. The district court’s reasoning on standing.
In its decision, the district court majority held that Plaintiffs had standing. As for their injury, the court acknowledged that “the proposition is not settled in Supreme Court jurisprudence.” Whitford v. Gill, 218 F. Supp. 3d 837, 927 (W.D. Wis. 2016). Even so, it found that Plaintiffs suffered an invasion of a legally protected interest because the plan made it more difficult to elect Democrats, and it was said to be “ ‘extremely difficult’ to pass legislation through a bipartisan coalition.” Id. And with legislation being the product of one party, “erecting a barrier that prevents the plaintiffs’ party of choice from commanding a legislative majority diminishes the value of the plaintiffs’ votes in a very significant way.” Id. at 927-28.
The district court said it saw a “very close” similarity to Baker v. Carr, 369 U.S. 186 (1962).
The district court also said that the “rationale and holding of Hays have no application here.” Whitford, 218 F. Supp. 3d at 929. It reasoned that the basis for racial gerrymandering claims is different from that of a political gerrymandering claim. According to the district court, the “concern” in a political gerrymandering case “is the effect of a statewide districting map on the ability of Democrats to translate their votes into seats.” Id. And as such, the district court noted: “The

7
harm is the result of the entire map, not simply the configuration of a particular district. It follows, therefore, that an individual Democrat has standing to assert a challenge to the statewide map.” Id.
And according to the district court, an injury to Democrats is not a generalized injury because it is not done to the “public at large.” Id.
Finally, the district court pointed to the effect of Wisconsin’s caucus system. That system made it all the more important, in the court’s judgment, to protect “the efficacy of the [plaintiffs’] votes in securing a political voice depends on the efficacy of the votes of Democrats statewide.” Id. at 930.
II. Plaintiffs have no standing to bring their statewide claims.
A. This Court’s precedent differentiates between claims of particularized injury, which may give rise to standing, and claims of generalized injury, which do not.
The case or controversy doctrines establish fundamental limits on the scope and exercise of federal judicial power in our system of government. Allen v. Wright, 468 U.S. 737, 750 (1984). Of those doctrines, standing is “perhaps the most important.” Id. Indeed, the concept of standing as a prerequisite to federal court jurisdiction “is founded in concern about the proper – and a properly limited – role of the courts in

8
a democratic society.” Warth v. Seldin, 422 U.S. 490, 498 (1975); see also Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”).
“[T]he irreducible constitutional minimum of standing contains three elements.” Id. First, there must be “an injury in fact – an invasion of a legallyprotected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal citations and quotations omitted). Second, there “must be a causal connection between the injury and the conduct complained of.” Id. Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotations omitted).
In racial gerrymandering cases, the necessary particularized injury arises in a narrow context. The plaintiff must live in a racially gerrymandered district in order to have standing. Hays, 515 U.S. at 745. Living in the neighboring district, even if its shape is influenced by the allegedly racially gerrymandered case, is not sufficient. Id. at 746; see also Sinkfield v. Kelley, 531 U.S. 28, 30 (2000). Addressing this issue in Hays, this Court explained: “Of course, it may be true that the racial composition of District 5 would have been different if the Legislature had drawn District 4 in another way. But an allegation to that effect does not allege a cognizable injury under the Fourteenth Amendment.” Hays, 515 U.S. at 746.

9
This Court explained that someone who lives in a racially gerrymandered district “may suffer the special representational harms racial classifications can cause in the voting context.” Id. at 745. However, one who “does not live in such a district . . . does not suffer those special harms, and any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference.” Id. Absent such specific evidence, the claim of injury is only a generalized one.
This Court’s Alabama Legislative Black Caucus decision is to the same effect. There, it explained: “A racial gerrymandering claim . . . applies to the boundaries of individual districts. It applies district-by-district. It does not apply to a State considered as an ‘undifferentiated’ whole.” 135 S. Ct. at 1265.
In contrast, this Court has “consistently held that a plaintiff raising only a generally available grievance about government – claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large – does not state an Article II case or controversy.” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at 560-61). Indeed, this Court’s “refusal to serve as a forum for generalized grievances has a lengthy pedigree.” Id. at 439-41 (discussing decisions from 1922, 1937, and 1984). In Lance, four Colorado voters who objected to a Colorado Supreme Court ruling that precluded the Colorado Legislature from redoing a court-drawn redistricting plan

10
were found to lack standing. The injury they complained of was “precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Id. at 442.
Similarly, in Dillard v. Chilton County Commission, 495 F.3d 1324 (11th Cir. 2007), the Eleventh Circuit Court of Appeals held that third parties challenging the legality of a district court’s relief stated only a generalized grievance. There, the district court approved a change in the size of the Chilton County Commission as a remedy for a violation of Section 2 of the Voting Rights Act, an action that was later found to be beyond the scope of a district court’s remedial powers in Holder v. Hall, 512 U.S. 874 (1994). Two intervenors sought to roll that remedy back. The Eleventh Circuit relied on Lance in abandoning its previous decisions finding standing for similar claims. Dillard, 495 F.3d at 1335.
B. Plaintiffs lack standing.
The district court said that, because political gerrymandering was involved, each Plaintiff as “an individual Democrat has standing to assert a challenge to the statewide map.” Whitford, 218 F. Supp. 3d at 929. It further said that the injury was not one shared by “the public at large.” Id.
The public at large rarely, if ever, however, suffers a common injury. In Lance, four voters objected to a decision of the Colorado Supreme Court that hurt their

11
political interest in a legislatively drawn redistricting plan. There were, undoubtedly, many Colorado residents who did not share that desire. Nonetheless, this Court found the claim of injury to be a generalized one. The remedy sought would have applied to all of Colorado.
Likewise, in Chilton County Commission, two intervenors were found to have stated only a generalized grievance. Again, while they had unnamed supporters, their claim was likely not one shared by the “public at large.” Their remedy, however, would apply to the county as a whole in the form of a reconfigured county commission.
Here, eleven plaintiffs want a new General Assembly redistricting plan. Without being certified as representatives of a plaintiff class, they purport to represent all of the Democrats in Wisconsin, no matter where they live. Accordingly, Plaintiffs want to carry a banner for not just themselves, but others in Wisconsin, and their remedy will apply to every voter in Wisconsin. At least two (Mitchell and Johnson) complain that the plan reduces the number of Democratic districts in their regions. Plaintiffs’ claims are necessarily generalized.4
4 Plaintiffs also have a redressability problem. Their remedy will change nothing if it does not give them a majority. As the district court conceded, it is Wisconsin’s “strict caucus system” that limits the minority party’s power. It wrote: “Wisconsin’s strict caucus system means that all of the important ‘debate and discussion’ of proposed legislation takes place in the party caucus meeting,

12
Finally, Plaintiffs Whitford, Asclam, Bunting, Seaton, and Winter illustrate this generality most clearly. None of them lives in one of the districts that the Plaintiffs’ claim to have lost through the redistricting. They just want more Democrats statewide. Accordingly, they seek a generalized benefit, and none should have standing to make such a claim.
The district court’s reliance on Baker v. Carr, is misplaced. Baker v. Carr arose because Tennessee did not redraw or reapportion its legislative districts between 1901 and 1961. This Court observed:
Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote. The 1960 Federal Census reports the State’s population at 3,567,089, of whom 2,092,891 are eligible to vote. The relative standings of the counties in terms of qualified voters have changed significantly.
Baker, 369 U.S. at 192. Those districts were woefully malapportioned, and they had been in place for 60 years.
This Court observed that the resulting injury “effect[ed] a gross disproportion of representation to voting population.” Id. at 207. And, as the district court failed to note, it is not just any “arbitrary impairment
and the party’s vote, yea or nay, is the one ‘that matters.’ ” Whitford, 218 F. Supp. 3d at 927. The caucus results will be the same so long as the party in power remains the same.

13
by state action” of a citizen’s vote that is actionable; rather, a claim is actionable “when such impairment resulted from dilution by a false tally, or by a refusal to count votes from arbitrarily selected precincts, or by a stuffing of the ballot box.” Id. at 208 (internal citations omitted).
In contrast, Plaintiffs make no claim that their districts are malapportioned. They do not complain about false tallies. They do not complain of refusals to count votes. They do not complain of stuffed ballot boxes. Moreover, the Assembly Plan to which they object was drawn in 2011 and will be redrawn after the 2020 Census results are delivered in order to cure any malapportionment that has developed since the previous Census. Any resemblance between their claims and those in Baker v. Carr is a distant one, at best.
Furthermore, Alabama’s experience demonstrates the fragility of overreaching political gerrymandering. In Vieth v. Jubelirer, the leadership of the Alabama Senate and House of Representatives, all Democrats, encouraged the Court not to adopt a “new constitutional rule prohibiting political gerrymandering.” See Brief of Amici Curiae Leadership of the Alabama Senate and House of Representatives, et al. in Support of Appellees, Vieth v. Jubelirer, 541 U.S. 267 (2004) (No. 02-1580), at 1. They patted themselves on the back for having redistricted without judicial intervention for the first time since 1901, attributing their success to a favorable political gerrymander. They explained that the plans they drew were the product of a “coalition” between white and African-American Democrats “that

14
sought to protect reliable Democratic seats with majority-black constituencies and to reduce the size of those majorities in order to increase the number of reliable Democratic voters in several seats closely contested between Democrats and Republicans.” Id. at 1-2.
The Alabama Democrats further noted that their scheme succeeded in the 2002 elections “even though Republican candidates polled statewide majorities in Congressional and most statewide offices.” Id. at 2. The Democrats garnered 52% of the statewide votes for the 35 Senate seats and won 71% of them. In addition, Democrats won 51% of the statewide votes for the 105 House seats and won 60% of them. Id.
The plans that the Alabama Democrats drew in 2001 lasted only until the 2010 elections, when the Alabama Republicans took a supermajority in each house. Those 2010 elections, and many other elections elsewhere (like the 2016 presidential election), demonstrate the inherent malleability of political affiliation. This is particularly true when district-based plans are redrawn and reapportioned after every census. If they want their candidates elected, Plaintiffs should be required to generate a majority at the polls, without judicial intervention.
III. Plaintiffs’ claims lack a constitutional and statutory foundation.
While Plaintiffs’ claims are couched in the First Amendment right of association, their claims do not fit within the Constitution or the Voting Rights Act. The

15
Reconstruction Amendments and the Voting Rights Act protect individuals, not groups. In addition, those individuals are identified with particularity, and there is no mention of political affiliation.
Section 1 of the Fifteenth Amendment declares: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const. amend XV, § 1 (emphasis added).
Section 1 of the Fourteenth Amendment makes “[a]ll persons born or naturalized in the United States” citizens and protects the “privileges or immunities” of citizens from “abridge[ment].” U.S. Const. amend XIV, § 1 (emphasis added). In addition, it bars the States from “depriv[ing] any person of life, liberty, or property, without due process of law,” or “deny[ing] to any person within its jurisdiction the equal protection of the laws.” Id. (emphasis added).
Likewise, through Section 2 of the Voting Rights Act Congress barred the “impos[ition] or appli[cation]” of voting rules in a way that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color[.]” 52 U.S.C. § 10301(a) (emphasis added). And it protected “opportunity,” not outcomes. As this Court has explained, “the ultimate right of § 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 428 (2006) (quoting

16
Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994)). Section 2 requires neither proportional representation, nor “electoral advantage” or “maximiz[ation]” for minority voters. Bartlett v. Strickland, 556 U.S. 1, 20, 23 (2009); see also 52 U.S.C. § 10301(b) (“[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).
Notably, the Sixth Circuit Court of Appeals has rejected the notion that the Voting Rights Act protects groups like all the Democrats in a State. Nixon v. Kent Cty., 76 F.3d 1381 (6th Cir. 1996); see also Vieth, 541 U.S. at 288 (plurality op.) (“Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle.”). The Sixth Circuit pointed out that the Act speaks of “citizens” not “classes” of them; a violation is established when political processes are not equally open to the “members” of a protected class; and one consideration is the extent to which the “members of a protected class” have been elected to political office. Nixon, 76 F.3d at 1386-87. It also noted that the only time the “aggregation of separately protected groups” is addressed in the Act, such aggregation is excluded for language minorities seeking to meet the numerical threshold for foreign-language ballots. Id. at 1387 n.7.
By couching their claims in the First Amendment, Plaintiffs attempt to end-run these limitations. Cf. Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality op.)

17
(“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of governmental behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”) (internal quotations omitted). But, nothing in the First Amendment guarantees a right of electoral success or even a “fair shot” at it. See New York State Bd. of Elections v. Torres, 552 U.S. 196, 204-06 (2008); see also Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Cal. 1988), aff ’d, 488 U.S. 829 (1989) (“The First Amendment guarantees the right to participate in the political process; it does not guarantee political success.”). This Court should decline Plaintiffs’ invitation to “open up [a] new and excitingly unpredictable theater of election jurisprudence.” Torres, 552 U.S. at 206.
IV. Plaintiffs seek to use the Voting Rights Act for improper political purposes.
Plaintiffs seek to put the Voting Rights Act to use in serving the institutional interests of the Democratic Party. This Court should not “transform the Voting Rights Act from a law that removes disadvantages based on race, into one that creates advantages for political coalitions that are not so defined.” Hall v. Virginia, 385 F.3d 421, 431 (4th Cir. 2004).
That is not just upside down, it is inconsistent with the Voting Rights Act and this Court’s decisions. In pertinent part, a violation of Section 2 is established if a racial minority has “less opportunity” to participate

18
in the political process. 52 U.S.C. § 10301(b). “Granting minorities a right to rearrange districts so that their political coalition will usually win has nothing to do with equal opportunity, but is preferential treatment afforded to no others.” Michael A. Carvin & Louis K. Fisher, “A Legislative Task”: Why Four Types of Redistricting Challenges Are Not, or Should Not Be, Recognized by Courts, 4 Election L.J. 2, 17 (2005) (citing DeGrandy, 512 U.S. at 1020). Political minorities should receive no more protection than racial ones.
Nothing in the statute requires one political party to have a greater opportunity than others. Significantly, Plaintiffs seek to further their own interests to the exclusion of the legislative majority. This Court should not reward political failure. Cf. Whitcomb v. Chavis, 403 U.S. 124, 153 (1971) (finding no vote dilution claim when a minority group “along with all other Democrats, suffers the disaster of losing too many elections”).
Separate and apart from that, the Voting Rights Act was meant to address race, not political party affiliation. President Lyndon Johnson focused on ending practical barriers to minority voting, which he identified and divided into three categories: (1) technical (e.g., poll taxes), (2) noncooperation, and (3) subjective (e.g., literacy tests). See Message from the President of the United States Related to the Right to Vote, 89th Cong., 1st Sess. (1965). When he spoke to a special joint-session of Congress, President Johnson observed, “[W]e met here tonight as Americans – not as Democrats or Republicans – we are met here as Americans

19

to solve that problem” of assuring equal rights for African-Americans. Id. (emphasis added).
This Court should heed President Johnson’s exhortation and refrain from doing political work for one party or the other. The political parties do not, or should not, need this Court’s help.
---------------------------------  ---------------------------------

CONCLUSION

For the foregoing reasons, and those stated by Appellants in their Brief for Appellants, amicus respectfully requests that this Court reverse the judgment of the United States District Court for the Western District of Wisconsin and remand this case with instructions that it be dismissed.

Respectfully submitted,

KIMBERLY S. HERMANN SOUTHEASTERN LEGAL
FOUNDATION 2255 Sewell Mill Rd.,
Ste. 320 Marietta, Georgia 30062
August 4, 2017

JOHN J. PARK, JR. Counsel of Record
STRICKLAND BROCKINGTON LEWIS LLP
1170 Peachtree St., Ste. 2200
Atlanta, Georgia 30309 (678) 347-2208 jjp@sbllaw.net
Counsel for Amicus Curiae

 
 No. 16-1161
In The
Supreme Court of the United States

BEVERLY R. GILL, ET AL.,
Appellants,
v. WILLIAM WHITFORD, ET AL.,
Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICUS CURIAE THE LEGACY FOUNDATION IN SUPPORT OF APPELLANTS

Thomas J. Josefiak Counsel of Record J. Michael Bayes Shawn Toomey Sheehy Steven P. Saxe Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive Suite 100 Warrenton, VA 20186 (540) 341-8808 (540) 341-8809 tomj@hvjt.law

Counsel for Amicus Curiae

August 4, 2017

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iv
STATEMENT OF INTEREST OF AMICUS CURIAE .............................................................. 1
SUMMARY OF THE ARGUMENT............................ 2
ARGUMENT ............................................................... 4
I. Requiring A State Legislature To Adopt Any Proposed Statistical Model As A Method Of Measuring Partisanship Will Effectively Usurp State Legislatures’ Ability To Redistrict And Impose Proportionality As A Constitutional Requirement. ...................................................... 4
II. The Framers Of The Federal And Wisconsin Constitutions Rejected Proportional Representation In Favor Of Electing Representatives On A District Basis. ................................................................... 9
A. Political Gerrymanders Have Existed Since The Time Of The Founding And The Framers Enacted A Mechanism To Correct Them......................................................... 10
B. The Framers Of The Federal And State Constitutions Contemplated A Winner-Take-All District-Based Electoral System. ..................................... 11

ii
C. Congressional Involvement In Redistricting Standards Indicates A Requirement For District By District Elections Rather Than Statewide Proportional Elections............ 17
III. This Court Has Confirmed That The Constitution’s Language Adopted The Framers’ Views Rejecting Proportional Representation.................................................. 18
A. The Supreme Court’s Jurisprudence Recognizes That There Is No Right To Proportional Representation For Political Parties. ..................................................... 22
B. Even In The Racial Gerrymandering And Voting Rights Act Contexts, Congress And This Court Do Not Recognize A Right To Proportional Representation By Race. ......................................................... 27
C. The Fourteenth Amendment Guarantees An Individual’s Right To Equal Protection Of The Law, Not The Rights Of Any Political Party. ........................................................ 29
IV. The ‘Efficiency Gap’ Is Premised On A Constitutional Right To Proportional Representation And This Court Should Reject It. ............................................................ 30

iii
V. The “Efficiency Gap’s” Concept Of A “Wasted Vote” Should Be Rejected By This Court. ........................................................ 34
VI. Conclusion......................................................... 38

iv
TABLE OF AUTHORITIES CASES
Baird v. Indianapolis, 976 F.2d 357 (7th Cir. 1992).................................................................. 30
Baker v. Carr, 369 U.S. 186 (1962)........................... 18 Bethune-Hill v. Va. State Bd. of Elections, 137
S. Ct. 788 (2017) ................................................. 2 Bethune-Hill v. Virginia State Board of
Elections, No. 15-680 .......................................... 1 Brown v. Hartlage, 456 U.S. 45 (1982)..................... 13 Cal. Democratic Party v. Jones, 530 U.S. 567
(2000) ................................................................ 11 Connor v. Finch, 431 U.S. 407 (1977)...................... 18 Davis v. Bandemer, 478 U.S. 109 (1986) .......... passim Evenwel v. Abbott, 136 S. Ct. 1120 (2016)................ 11 Fletcher v. Lamone, 831 F. Supp. 2d 887 (D.
Md. 2011), sum. aff’d, 567 U.S. 930 (2012) .................................................................. 1 Gaffney v. Cummings, 412 U.S. 735 (1973) ........... 3, 6 Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013).................................................................. 35

v
Growe v. Emison, 507 U.S. 25 (1993) ......................... 5
Johnson v. De Grandy, 512 U.S. 997 (1994) .................................................... 27, 28, 29
Karcher v. Daggett, 462 U.S. 725 (1983) .................... 5
Katzenbach v. Morgan, 384 U.S. 641 (1966) ............ 22
League of United Latin Am. Citizens, Council No. 4386 v. Midland Indep. Sch. Dist., 812 F.2d 1494 (5th Cir. 1987) .......................... 22
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ...................................... 8, 33
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964) ........................................... 21, 22
McGhee v. Granville County, N.C., 860 F.2d 110 (4th Cir. 1988)............................................ 27
Mobile v. Bolden, 446 U.S. 55 (Marshall, J., dissenting)................................................. passim
Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis. 1992) ............................................... 25
Republican Party of N.C. v. Hunt, 1996 U.S. App. LEXIS 2029 (4th Cir. 1996) ............... 25, 26
Roman v. Sincock, 377 U.S. 695 (1964).................. 5, 7
Shaw v. Reno, 509 U.S. 630 (1993)............................. 5

vi
Solomon v. Liberty County, 899 F.2d 1012 (11th Cir. 1990)................................................. 12
State ex rel. Attorney Gen. v. Cunningham, 51 N.W. 724 (Wis. 1892) ........................................ 15
Thornburg v. Gingles, 478 U.S. 30 (1986) ................ 24 Vieth v. Jubelirer, 541 U.S. 267 (2004) ............ passim Whitcomb v. Chavis, 403 U.S. 124 (1971) .......... 23, 37 White v. Regester, 412 U.S. 755 (1973) ..................... 23 Whitford v. Gill, 218 F. Supp. 3d 837 (W.D.
Wis. 2016) ................................................. passim STATUTES
U.S. Const. art. I, § 4............................................. 5, 16 2 U.S.C. § 2c ........................................................ 11, 18 42 U.S.C. § 1973 .................................................. 27, 28 52 U.S.C. § 10303 ........................................................ 5 81 Stat. 581 (1967) .................................................... 18 Apportionment Act of 1842, 5 Stat. 491 ............. 17, 18 Apportionment Act of 1872, 17 Stat. 492 ................. 18 Apportionment Act of 1901, 26 Stat. 736 ................. 18

vii
Reapportionment Act of 1929, 46 Stat. 21 ............... 18 S. Rep. No. 417, 97th Cong., 2d Sess. (1982),
reprinted in 1982 U.S.C.C.A.N. 177 ................ 27 Wis. Const. art. IV, § 3 .............................................. 16 Wis. Const. art. IV, § 4 ................................ 5, 7, 16, 19
OTHER AUTHORITIES 2 Report of the Debates and Proceedings of
the Convention for the Revision of the Constitution of the State of Indiana 1244 (1850) ................................................................ 15 Election 2016, House Election Results, N.Y. Times (Aug. 1, 2017, 11:22 AM) ....................... 20 Election History for INDIANA, Polidata.org, http://www.polidata.us/ books/in/pub/ inehcxc1.pdf (last visited July 22, 2017)........ 26 F. McDonald, Novas Ordo Seclorum: The Intellectual Origins of the Constitution (1985) ................................................................ 22 Federalist No. 10 ..................................... 11, 13, 16, 22 Federalist No. 35 ................................................. 12, 35 Federalist No. 54 ....................................................... 11 Federalist No. 55 ................................................. 13, 22

viii
Jacob Eisler, Partisan Gerrymandering and the Illusion of Unfairness, 67 Cath. U. L. Rev (forthcoming 2018) .............................. 24, 26
James A. Gardner, Foreword: Representation Without Party: Lessons From State Constitutional Attempts To Control Gerrymandering, 37 Rutgers L.J. 881 (2006) ................................................................ 15
James A. Gardner, One Person, One Vote and the Possibility of Political Community, 80 N.C. L. Rev. 1237 (2002) ............................. 14
John D. Griffin & Brian Newman, Are Voters Better Represented? 67 J. of Pol. 1206 (2005) ................................................................ 38
Journal of Debates 219-24 (1851) ............................. 15
Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1 (1985) ..................................................... 24
Military Voter Protection Project, http://mvpproject.org/ (last visited July 31, 2017).............................................................. 2
Paul Burstein, The Impact of Public Opinion on Public Policy: A Review and an Agenda, 56 Pol. Research Q. 29 (2003) ............ 37
Pippa Norris, Choosing Electoral Systems: Proportional, Majoritarian and Mixed Systems, 18 Int. Pol. Sci. Rev. 297 (1997)........ 19

ix
Royce Crocker, Cong. Research Serv., R42831, Congressional Redistricting: An Overview (2012) ........................................... 17,18
Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts (B. Grofman ed. 1990) ...................................... 24
William H. Page, Interest Groups, Antitrust, and State Regulation: Parker v. Brown in the Economic Theory of Legislation, 1987 Duke L.J................................................... 36
Wis. Elections Comm., 2016 Fall General Election Results, Statewide Results All Offices (post-Presidential recount).pdf (2016) ................................................................ 20

1
STATEMENT OF INTEREST OF AMICUS
CURIAE
The Legacy Foundation is a non-profit corporation incorporated in Iowa and organized under Internal Revenue Code 501(c)(3).1 The Legacy Foundation is a non-partisan organization that engages in independent research concerning, inter alia, civil rights policy and voting. The Legacy Foundation is also dedicated to promoting a limited and accountable government. These efforts include supporting redistricting litigation involving partisan gerrymandering claims. See, e.g., Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011), sum. aff’d, 567 U.S. 930 (2012). More recently, The Legacy Foundation providing funding for an amicus brief submitted by the National Black Chamber of Commerce and the Hispanic Leadership Fund. See Bethune-Hill v. Virginia State Board of Elections, No. 15-680, br. of amici curiae National Black
1No party’s counsel authored any part of this brief. No person other than the amicus curiae made a monetary contribution intended to fund the preparation or submission of this brief. On July 13 and July 17, 2017, counsel for Appellants and Appellees, respectively, provided consent to all timely filed amicus briefs. The parties’ letters consenting to the filing of amicus briefs have been filed with the Clerk.

2
Chamber of Commerce, et al. (filed Oct. 24, 2016).2
Furthermore, one of the Legacy Foundation’s programs is the Military Voter Protection Project. This program “is dedicated to promoting and protecting our military members’ right to vote and ensuring that their votes are counted on Election Day.”3
SUMMARY OF THE ARGUMENT
The Legacy Foundation urges this Court to reverse the opinion of the United States District Court for the Western District of Wisconsin in this case.
Since this Court’s decisions in Davis v. Bandemer, 478 U.S. 109 (1986), and Vieth v. Jubelirer, 541 U.S. 267 (2004), members of one faction or another – in this case the Democratic party – have advocated and advanced the notion that there is a “problem” of “partisanship” in how district maps are drawn across the country and that a constitutional remedy is required. In this case, lower court adopted the newly-created “efficiency gap” standard for assessing claims of partisan gerrymandering.
2 The decision in Bethune-Hill is reported at Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017). 3 See Military Voter Protection Project, http://mvpproject.org/ (last visited July 31, 2017).

3
This Court should reject the so-called ‘efficiency gap’ standard for at least four reasons:
First, adopting the ‘efficiency gap’ as a justiciable standard to determine whether constitutional rights are violated due to an allegedly excessive partisan gerrymander will thrust the judiciary into the political thicket of nearly every redistricting exercise undertaken for federal, state, and local voting districts. See Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“The reality is that districting inevitably has and is intended to have substantial political consequences.”).
Second, there is no constitutional right to proportional representation. The Framers, Congress, and this Court have all rejected a constitutional right to proportional representation.
Third, the ‘efficiency gap’ is premised on, and uses as a baseline for its quantitative analysis, what is effectively a claimed constitutional right to proportional representation based on political party affiliation. The District Court failed to adequately recognize that the Framers rejected the notion of proportionality as a basis of representation and that no such constitutional right or requirement exists. The District Court failed to adequately recognize that principles of proportionality underlie nearly all of Plaintiffs/Appellees’ proposed “judicially manageable” standards in this.
Fourth, the measure relied on below by the Plaintiffs (the so-called “efficiency gap” or “EG”) incorporates the concept of what that model terms a

4
“wasted vote.” The notion of a “wasted” vote is a purely subjective one, and not one this Court should accept. In the United States, votes for losing candidates are still influential in guiding both policy discussion and public opinion and are therefore not “wasted.” This Court should reject Appellees’ invitation to adopt their ‘efficiency gap’ theory.
Adopting a one-size-fits-all approach utilizing unproven statistical theories would run afoul of Justice Kennedy’s fear in Vieth, that “those criteria that might seem[] promising at the outset . . . are not altogether sound as independent judicial standards for measuring a burden on representational rights.” Vieth, 541 U.S. at 308 (referring to, as examples, contiguity and compactness) (Kennedy, J., concurring). This Court should reject this attempt to usurp the power of state legislatures by imposing an extra-constitutional requirement on the process of drawing legislative districts boundaries.
ARGUMENT
I. Requiring A State Legislature To Adopt Any Proposed Statistical Model As A Method Of Measuring Partisanship Will Effectively Usurp State Legislatures’ Ability To Redistrict And Impose Proportionality As A Constitutional Requirement.
With respect to elections for the United States House of Representatives, Article 1, Section 4 of the U.S. Constitution grants state legislatures the power to decide “[t]he Times, Places and Manner of holding

5
elections for . . . Representatives.” U.S. Const. art. I, § 4. State constitutions are the primary driving force in this process, subject to certain limitations imposed by federal law and the U.S. Constitution that govern the drawing of districts for both federal and state offices. See Growe v. Emison, 507 U.S. 25, 34 (1993). In this case, the Wisconsin Constitution, Article IV, Section 4, provides that legislative districts “be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.” Wis. Const. art. IV, § 4; see Whitford v. Gill, 218 F. Supp. 3d 837, 844 (W.D. Wis. 2016).
This Court has permitted the federal courts oversight of the redistricting process in a few narrow areas. Specifically, federal courts may review a state legislature’s sovereign function of redistricting when plaintiffs’ allege federal congressional one person, one vote violations, see, e.g., Karcher v. Daggett, 462 U.S. 725 (1983), state legislative one person, one vote violations, see, e.g., Roman v. Sincock, 377 U.S. 695 (1964), racial gerrymandering claims, see, e.g., Shaw v. Reno, 509 U.S. 630 (1993), and Voting Rights Act claims, 52 U.S.C. § 10303.
Appellees now ask the Court to create another exception to the general rule of non-intervention: a partisan gerrymandering claim brought under the Equal Protection Clause of the Fourteenth Amendment, or the Free Speech and Association Clauses of the First Amendment, where Appellees demand proportional party representation in legislative bodies at federal, state, and local levels of government. Plaintiffs/Appellees’ “efficiency gap”

6
measures the number of statewide votes cast for candidates of a party across all districts at a particular level of representation (local, state, or federal) and purports to determine whether a districting plan yields the “right” number of representatives from each political party – thereby imposing a constitutional right to proportional representation based on political party affiliation. The lower court opinion captured this demand well when it explained Plaintiffs’ fundamental claim:
In short, the complaint alleges that Act 43 purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.
Whitford, 218 F. Supp. 3d at 854 (emphasis added).
Proportionality as a federal constitutional requirement has been rejected repeatedly by this Court, which has recognized that the Constitution’s vesting of the sovereign duty to draw district boundaries to a political branch of government will inevitably have political consequences. See Bandemer, 478 U.S. at 128-29 (emphasis added) (White, J., plurality opinion) (quoting Gaffney, 412 U.S. at 753 (“The reality is that districting inevitably has and is intended to have substantial political consequences.”) (emphasis added)). Nor has Wisconsin adopted such a sweeping requirement.

7
See Wis. Const. art. IV, § 4 (declaring that Members of the Assembly are to be chosen by single member districts).
Courts should not enter the political thicket of partisan gerrymandering, as this Court acknowledged, because to do so would result in judicial involvement in nearly every redistricting map across the country. Vieth, 541 U.S. at 306 (Kennedy, J., concurring) (“A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.”).
This Court should also be wary of adopting any statistical one-size-fits-all method that purports to assess the “discriminatory” effect of alleged political gerrymanders. See, e.g., Roman, 377 U.S. at 710 (“[I]t is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause.”).
This Court should reject any statistical model that purports to measure and identify a standard for assessing the “problem” of political gerrymandering for the simple reason that any proposed statistical model uses some version of proportionality as its baseline. A simple example illuminates this reality. If someone were to say that the game was highly competitive and my team scored 63, it provides the recipient of this information no indication about the winner or loser of the game. A listener would need

8
to know how the other team scored in order to know whether this score of 63 was a winner or loser. Every quantitative method introduced uses some measure as a baseline against which to compare the maps the evaluator is examining. In every method so far put forward to assess “partisanship,” the baseline is some measure of the relative proportionality of legislative seats to the statewide vote count by political party. This measure is then used to determine how many legislative seats “should be held” statewide per party, which in fact generally feature district -by -district races between two leading individual candidates between whom voters make a choice. See, e.g., League of United Latin Am. Citizens v. Perry, (‘LULAC’) 548 U.S. 399, 419-20 (2006) (Kennedy, J., concurring in judgment) (rejecting partisan symmetry standard).
Appellees asked that the court below adopt the EG as a metric to determine a prima facie political gerrymander, and the court agreed. See Whitford, 218 F. Supp. at 854. The EG is the ultimate in partisanship because the metric wholly relies on measurements of proportionality based on the casting of a vote for a candidate affiliated with a political party on a district by district basis, then aggregated and applied on a statewide basis; it is grounded entirely on the measure of the political party affiliation of the numerous individual candidates for whom voters cast votes. Interestingly, Appellees appear to have retreated from sole reliance on the EG in their Motion to Dismiss or Affirm. See Appellees’ Mot. to Dismiss or Affirm at 10, 21 (relying on the partisan bias test, sensitivity

9

testing, mean-median difference, and the ‘efficiency gap’).
If left intact, the ruling below will have the practical effect of requiring all state legislatures to draw distinct lines that comply with the EG, which is in essence a measure of proportionality and pure partisanship based on the statewide aggregation explained above. Requiring the EG, or any other specific method or methods with proportionality as a basis, will usurp the power the U.S. Constitution vests in state legislatures, and will likewise allow litigants to drag the federal courts into second guessing state mapping choices to enforce such extra-constitutional requirements

II. The Framers Of The Federal And

Wisconsin

Constitutions

Rejected

Proportional Representation In Favor Of

Electing Representatives On A District

Basis.

This Court has repeatedly repudiated proportional representation as the basis on which our electoral system is founded. The Constitution does not guarantee any such right. Nor does the Wisconsin Constitution. Indeed, from the writings of the Framers of the Constitution, to this Court’s repeated, forceful rejections of the concept in its voting- and districting-related jurisprudence, and to the pronouncement by Congress that no such right to proportional representation exists, models of proportional representation—and the “wasted” vote concept—are altogether alien to our system of republican government.

10
A. Political Gerrymanders Have Existed Since The Time Of The Founding And The Framers Enacted A Mechanism To Correct Them.
“Political gerrymanders are not new to the American scene.” Vieth, 541 U.S. at 274 (plurality opinion). Historical gerrymandering attempts date as far back as the beginning of the 18th century in the Colony of Pennsylvania and the Province of North Carolina. Shortly after the Constitution was ratified, there were. Id. For example, there were “allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress.” The,” and then there is the 1812 districting in Massachusetts gave the gerrymander its name (a fusion of the name of then Governor Elbridge Gerry with “salamander” referring to the outline of an election district he was credited with forming). Id. (internal citations omitted). Of utmost importance is that “the Framers provided a remedy for such practices in the Constitution.” Id. at 275. Article I, Section 4, provides that “Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Although there was significant opposition to the congressional oversight established by Section 4 in the course of the debates in the Constitutional Convention, “James Madison responded in defense . . . that Congress must be given the power to check partisan manipulation of the election process by the States.” Id. Congress has exercised its power to regulate election districting many times. Id. at 276. In exerting that power, Congress has unequivocally provided support for the

11

single-member-district-requirement, which includes, for example, “Representatives must be elected from single-member districts composed of contiguous territory.” Id. (internal quotation marks and citation omitted) (emphasis added); see also 2 U.S.C. § 2c (“there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established . . . ”). The Framers expressly intended redistricting to be left to the state legislatures, and gave Congress the authority to “make or alter such Regulations.”

B. The Framers Of The Federal And

State Constitutions Contemplated A

Winner-Take-All

District-Based

Electoral System.

The Framers intended a system by which representatives are elected on a districted basis. Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (quoting Federalist No. 54, stating “that as the aggregate number of representatives allotted to the several States is to be . . . founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate.”) (emphasis added); Cal. Democratic Party v. Jones, 530 U.S. 567, 591 n.2 (2000) (Stevens, J., dissenting) (citing Federalist No. 10 for the proposition that the Constitution’s structure is designed to harness the excesses of partisanship). The Framers likewise rejected proportional representation as a basis for which to hold elections, and to undersigned counsel’s knowledge, no court in

12
the United States has ever imposed such a system on our electoral structure. In Federalist No. 35, Alexander Hamilton characterized proportional representation of “each class” as neither feasible nor desirable, and explained, “[t]he idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice.” The Federalist No. 35 (Alexander Hamilton); Solomon v. Liberty County, 899 F.2d 1012, 1036 n.13 (11th Cir. 1990) (en banc) (Tjoflat, J., concurring).
Hamilton further warned against such a form of electing representatives, saying, “[i]t is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free.” The Federalist No. 35 (Alexander Hamilton); Solomon 899 F.2d at 1036 n.13 (Tjoflat, J., concurring) (citing Federalist No. 35 for the proposition that proportional representation is not an appropriate means of enforcing the Fifteenth Amendment).
What Plaintiffs/Appellees demand here is a fundamental change to the very nature of how people are represented in their legislatures. Apportioning seats based upon a political parties’ proportional share of the statewide vote at any given

13
time runs afoul of the most basic premises upon which our voting system is based.
The Framers intended for factions to counter factions on a continual basis. They did not intend for the type of judicial foray into the electoral realm as described in Vieth, and they did not intend for judicially-mandated systems of proportional representation that by their very nature replace the ongoing electoral contest between factions with a system that produces a sort of détente between those factions by proportionally allocating power among them. See The Federalist No. 10 (James Madison) (warning against such a system in that “[t]heoretic politicians, who have patronized [the republican form] of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions . . . . A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.”) (emphasis added). Brown v. Hartlage, 456 U.S. 45, 56 (1982) (“[O]ur tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare.”).
The Framers understood that “[n]othing can be more fallacious than to found our political calculations on arithmetical principles.” The Federalist No. 55 (James Madison) (discussing the

14
proper number of representatives for Congress and for future reapportionment).
The Framers’ thinking undoubtedly applies not only to the federal system but also to the structure of state electoral systems. Indeed, “[t]he roots of Anglo-American political representation lie in the representation of communities, not individuals . . . .” James A. Gardner, One Person, One Vote and the Possibility of Political Community, 80 N.C. L. Rev. 1237, 1243-45 (2002). Accordingly, our voting system is premised on the idea that individuals within a community (or district) freely elect their representative, without having their community adjusted by statisticians seeking to account for statewide partisan vote shares. This notion of representation was prevalent during the time of the Founding.
By the time of the Revolution, the founding generation fully accepted this account of representation. The idea that the political interests of communal groups of individuals correlated strongly with territory served, for example, as an axiom in Madison's famous defense of the large republic in The Federalist No. 10. ‘Factious combinations,’ Madison argued, are ‘less to be dreaded’ in a large republic than in a small one because of the greater variety of interests found among a larger populace, a characteristic that is entirely an artifact of geographical scale: ‘Extend

15

the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.

James A. Gardner, Foreword: Representation Without Party: Lessons From State Constitutional Attempts To Control Gerrymandering, 37 Rutgers L.J. 881, 935-36 (2006). “The idea that territorially defined local communities may reliably serve as proxies for the shared, collective interests of the individuals who inhabit them has remained a fixture in American political thought ever since.” Id. at 936.

This was true even in Wisconsin. The

“delegates to the Wisconsin constitutional

convention . . . [understood] ‘that each county was

regarded in the nature of a small republic, or in the

light of a family, and each organized county had a

separate interest.’” Id. at 936 n.215 (citing and

quoting State ex rel. Attorney Gen. v. Cunningham,

51 N.W. 724, 739 (Wis. 1892) (Pinney, J., concurring)

(quoting Journal of Debates 219-24 (1851)) (also

citing 2 Report of the Debates and Proceedings of the

Convention for the Revision of the Constitution of

the State of Indiana 1244 (1850) (remarks of Mr.

Dobson) ("Each average county having a separate

interest, ought to have a separate representation in

the Legislature.")).

Unmistakably, the

understanding of the Framers, the founding

generation, and the framers of Wisconsin’s

constitution all embraced the doctrine of

representation based on single-districts.

16
An extensive republic would guard against any “local prejudices, or of sinister designs” of the representatives of the people. The Federalist No. 10 (James Madison). Madison concluded, “[i]n the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.” Id.
Similar to the Framers’ understanding of the U.S. Constitution, the Wisconsin Constitution also embodies the principle that elections are contested at the district level. Wisconsin’s Constitution provides that, “[t]he members of the assembly shall be chosen biennially, by single districts . . . by the qualified electors of the several districts, such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.” Wis. Const. art. IV, § 4 (emphasis added).
Like Congress acting in accordance with the Constitution in modifying districting rules, the Wisconsin legislature acted pursuant to its authority and the criteria as set forth in the Wisconsin Constitution when adopting its redistricting plan. See U.S. Const. art. I, § 4; Wis. Const. art. IV, §§ 3-4. Furthermore, similar to the U.S. Constitution, Wisconsin’s Constitution also provides traditional, neutral redistricting criteria to guide the legislature when drawing legislative districts. Both constitutions envisage districts based on geographic principles, and it is quite clear neither Constitution provides for a right to proportional representation.

17

Shifting from this understanding of a republican, districted form of electing representatives to one based on mathematical models such as Appellees’ ‘efficiency gap’ is precisely the type of error the Framers warned against.

C. Congressional

Involvement

In

Redistricting Standards Indicates A

Requirement For District By District

Elections Rather Than Statewide

Proportional Elections.

While this case involves a constitutional challenge to state legislative redistricting, it is clear that this Court’s decision will likely have an impact on districting at all levels of government. Therefore, an examination of Congress’ expressed views on the redistricting process is vital to the Court’s consideration.

Redistricting at the congressional level is the product of judicial interpretation of constitutional rights and federal statutes. Congress robustly involved itself in the redistricting process throughout the nineteenth and twentieth centuries. Royce Crocker, Cong. Research Serv., R42831, Congressional Redistricting: An Overview 3-4 (2012) available at https://fas.org/sgp/crs/misc/R42831.pdf. In 1842, Congress added a contiguity requirement to the Apportionment Act of that year, and in the Apportionment Act of 1872, Congress added a requirement pertaining to equal numbers of inhabitants per district. With the Apportionment Act of 1901, Congress added a compactness requirement. See id. at 4. (citing Apportionment Act of 1842, 5

18
Stat. 491; Apportionment Act of 1872, 17 Stat. 492; Apportionment Act of 1901, 26 Stat. 736). In 1929, Congress passed the Permanent Apportionment Act, opting to not include districting standards. Id. (citing Reapportionment Act of 1929, 46 Stat. 21). For nearly forty years after the adoption of the Permanent Apportionment Act, no congressional districting standards were imposed. Id. Then, in 1967, Congress re-imposed geographic-based districting requirement. Id. (citing 81 Stat. 581 (1967) (codified at 2 U.S.C. § 2c)).
There can be no question that Congress intended for congressional elections to occur on a district by district basis, rather than a statewide basis.
III. This Court Has Confirmed That The Constitution’s Language Adopted The Framers’ Views Rejecting Proportional Representation.
It was with careful deliberation that the Framers accorded such power not to the judiciary, but to the people’s representatives. Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting); see also Vieth, 541 U.S. at 275 (“Article 1, § 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to ‘make or alter’ those districts if it wished.”).
The United States system of legislative apportionment is “direct territorial representation by single-member districts.” Connor v. Finch, 431 U.S.

19
407, 428 (1977); see also Wis. Const. art. IV, § 4 (providing that members of the Assembly be chosen by single districts). Intrinsic in such a districting system “is that voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties.” Bandemer, 478 U.S. at 159 (O’Connor, J., concurring). Accordingly, “efforts to determine party voting strength presuppose a norm that does not exist -statewide elections for representatives along party lines.” Id.4
It is inherent in our winner-take-all system that “[d]istrict-based elections hardly ever produce a perfect fit between votes and representation.”
4 This system of majoritarian elections stands in stark contrast to the plurality methods and other electoral systems. According to at least one academic review, majoritarian systems are the primary election system used by democracies around the world. The vast majority of former British Colonies have clearly adopted a majoritarian system, while a significant number of countries have adopted and utilize explicitly proportional elections. See Pippa Norris, Choosing Electoral Systems: Proportional, Majoritarian and Mixed Systems, 18 Int. Pol. Sci. Rev. 297 (1997) available at https://sites.hks.harvard.edu/fs/pnorris/Acrobat/IPSR %20Choosing%20Electoral%20Systems.pdf). This article indicates that when governmental systems are intended to be structured with some method of a proportionality requirement, governments know how to make such structures expressly clear.

20

Bandemer, 478 U.S. at 133. As the Court rightly recognized, inviting an attack on “minor departures from some supposed norm” would be “so much at odds with our history and experience.” Id. at 133-34. Simply put, in a districted, republican form of government, it is often the case that “the failure of the minority to have legislative seats in proportion to its population emerges more as a function of losing elections” than any other supposed factor. Id. at 137.

In the 2016 elections for State Senate in

Wisconsin, there were five districts where the

Republican Party did not nominate a general

election candidate for the State Senate, and three

districts where the Democratic Party did not

nominate a general election candidate. Wis.

Elections Comm., 2016 Fall General Election

Results, Statewide Results All Offices (post-

Presidential recount).pdf (2016), available at

http://elections.wi.gov/elections-voting/results/2016/

fall-general. Similarly, in the 2016 elections for the

United States Congress there were 29 districts

where either the Republican or Democratic Party did

not nominate a candidate for Congress, including

one district in Wisconsin. Election 2016, House

Election Results, N.Y. Times (Aug. 1, 2017, 11:22

AM),

https://www.nytimes.com/elections/results/

house? mcubz=0.

Adopting a proportional system of representation would provide certain groups with an undeserved windfall of political influence despite the fact that there has been no denial, impairment, or restriction of any person’s right to vote or to have his or her vote counted. See Mobile v. Bolden, 446 U.S.

21
55, 123-24 (Marshall, J., dissenting). Furthermore, our districted system is meant to shield against such debasing principles that would serve to clump individuals into calculated groups for arriving at a ratio of allotted seats. Rather, our republic is established to ensure that the people of each district are represented by the elected individual who receives the most votes, regardless of how voters in other districts may vote. Certainly “[l]egislators do not represent faceless numbers” but instead “represent people, or, more accurately, a majority of the voters in their districts.” Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 750-51 (1964) (Stewart, J., dissenting) (also noting that “population factors must often to some degree be subordinated in devising a legislative apportionment plan which is to achieve the important goal of ensuring a fair, effective, and balanced representation of the regional, social, and economic interests within a State.”). Appellees’ attempt at convincing the Court to adopt a proportional system is not based in the Constitution but rather their own notion of how the Constitution needs to be twisted to achieve their partisan goals. Voters are not merely unchanging, faceless numbers who would vote for one particular party or the other no matter what candidate choices they face. Voters have preferences based on any number of wide-ranging factors – such preferences unavoidably being a mutable characteristic.

22

A. The Supreme Court’s Jurisprudence

Recognizes That There Is No Right To

Proportional

Representation

For

Political Parties.

The Framers understood the dangers of proportional representation to our system of government, and the Court “has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation.” Mobile, 446 U.S. at 79; see The Federalist No. 55 (James Madison) (“Nothing can be more fallacious than to found our political calculations on arithmetical principles.”); see Lucas, 377 U.S. at 750 n.12, (Stewart, J., dissenting) (noting that the system of proportional representation has not been adopted “because electoral systems are intended to serve functions other than satisfying mathematical theories”). When debate about the government implicates basic values, such as the structure of our electoral system, “[c]oncern for accommodation of factions has seldom been far away;” courts have routinely noted the difficulties that would be posed by a constitutional command of proportional representation, and have determined that “proportional representation as a measure of due strength will not do” because it is “itself a political alien, antithetical to our basic devotion to republican government.” League of United Latin Am. Citizens, Council No. 4386 v. Midland Indep. Sch. Dist., 812 F.2d 1494, 1507 n.3 (5th Cir. 1987) (Higginbotham, J., dissenting) (citing Katzenbach v. Morgan, 384 U.S. 641 (1966); The Federalist No. 10 (James Madison); F. McDonald, Novas Ordo

23
Seclorum: The Intellectual Origins of the Constitution 162-64 (1985)).
The Court in Bandemer recognized these longstanding principles, noting that the Court’s precedent “clearly foreclose[s] any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.” Bandemer, 478 U.S. at 130 (quoting Whitcomb v. Chavis, 403 U.S. 124, 153, 156, 160 (1971); White v. Regester, 412 U.S. 755, 765-66 (1973).
Moreover, a popular majority in statewide races in no way establishes majority status for district contests. If it did, “one would have to believe that the only factor determining voting behavior at all levels is political affiliation,” which “is assuredly not true.” Vieth, 541 U.S. at 288-89. As the Court explained:
There is no statewide vote in this country for the House of Representatives or the state legislature. Rather, there are separate elections between separate candidates in separate districts, and that is all there is. If the districts change, the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change--everything changes. Political parties do not

24
compete for the highest statewide vote totals or the highest mean district vote percentages: They compete for specific seats.
Id. at 288-89 (citing and quoting Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1, 59-60 (1985); Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240, 241 (B. Grofman ed. 1990)). A forthcoming article observes that parties and candidates will adapt as district lines change. Jacob Eisler, Partisan Gerrymandering and the Illusion of Unfairness, 67 Cath. U. L. Rev (forthcoming 2018), available at https://ssrn.com/abstract=2993876.
Indeed, if proportional representation based on statewide vote were the foundation used to determine allocation of seats in a legislative body, districted elections become obsolete. This cannot be what the Constitution requires based on the history of its founding and the recent experiences enforcing the Voting Rights Act. A number of civil rights cases demonstrate that at-large elections for districts resulted in unconstitutional discrimination, and this Court and numerous other federal courts have ordered the creation of single member districts in order to ensure that rights of individuals were not submerged in at-large elections. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986).
A different three-judge panel of the United States District Court for the Western District of

25
Wisconsin, in an earlier decision, properly understood the issue as being one of “understand[ing] the difference between popular and legislative majorities that is inherent in a districted legislature as opposed to one in which legislators are elected at large . . . . [i]n a districted legislature, as distinct from one in which legislators are chosen by proportional representation, small differences in voting strength can translate into large differences in representation.” Prosser v. Elections Bd., 793 F. Supp. 859, 864, 868 (W.D. Wis. 1992).
Allowing district courts “to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections or future apportionments invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.” Bandemer, 478 U.S. at 160. A striking example of this is found in Vieth. There, Justice Scalia discusses the case in which the U.S. District Court for the Eastern District of North Carolina ruled that Plaintiffs brought a successful partisan gerrymandering claim. In that case, it was shown that North Carolina’s system of electing superior court judges resulted in a Republican never winning a court seat and that lack of success would likely continue. Five days after the district court ruling “‘every Republican candidate standing for the office of superior court judge was victorious at the state level,’ a result which the Fourth Circuit thought (with good reason) ‘directly at odds with the recent prediction by the district court,’ causing it to remand the case for reconsideration. See Vieth, 541 U.S. at 287 n.8 (citing Republican Party v. Hunt, No. 94-2410, 1996 U.S. App. LEXIS 2029 (4th Cir. Feb.

26
12, 1996)); see also Bandemer, 478 U.S. at 152 (O’Connor, J., concurring) (noting that there was no proof that partisan gerrymandering is an evil that the vast resources of the major political parties could not check and correct).
Justice O’Connor’s prediction in Bandemer proved prescient. First, in 1988, two years after Bandemer was decided—and under the same map— control of the Indiana House was divided between two political parties each holding 50 seats. Two years later, in 1990, the Democrats gained a majority of the Indiana House and made substantial gains in the Senate. See Election History for INDIANA, Polidata.org, http://www.polidata.us/ books/in/pub/inehcxc1.pdf (last visited July 22, 2017). Justice O’Connor’s view of adaptation as a means of surviving and thriving as a political party proved to be accurate in Indiana. One recent article explored the notion that voters can switch parties in light to redistricting while others view partisanship as an immutable characteristic like race. See Eisler, Partisan Gerrymandering and the Illusion of Unfairness at 44-47. In judicial examples such as Republican Party of N.C. v. Hunt, 1996 U.S. App. LEXIS 2029 (4th Cir. 1996) and Bandemer, 478 U.S. at 152 (O’Connor, J., concurring), the notion of parties and candidates adapting to voters appears to have proven to more accurately reflect the reality of the modern American electorate.

27
B. Even In The Racial Gerrymandering And Voting Rights Act Contexts, Congress And This Court Do Not Recognize A Right To Proportional Representation By Race.
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, provides, in part, “that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” In other words, the “right to equal participation in the electoral process does not protect any ‘political group,’ however defined, from electoral defeat.” Mobile, 446 U.S. at 77; Johnson v. De Grandy, 512 U.S. 997, 1020 (1994) (“[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice. Those candidates may not represent perfection to every minority voter, but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground….”); See McGhee v. Granville County, N.C., 860 F.2d 110, 117 (4th Cir. 1988) (“[T]he [Gingles] Court noted that the size and compactness requirement confines dilution claims to situations where diminution of voting power is proximately caused by the districting plan, and thus would not assure racial minorities proportional representation.”) (quotation marks and citations omitted). This was an area of intense debate when the 1982 Amendments were passed and was added so that “it puts to rest any concerns that have been raised about racial quotas.” S. Rep. No. 417, 97th Cong., 2d Sess. (1982), reprinted in 1982

28
U.S.C.C.A.N. 177. An individual’s right to vote does not carry with it a right that the individual’s political preferences be proportionally represented based on the overall voting strength of the political party he or she chooses to support. Recognizing such a right “would effectively collapse the ‘fundamental distinction between state action that inhibits an individual's right to vote and state action that affects the political strength of various groups that compete for leadership in a democratically governed community.’” Bandemer, 478 U.S. at 150-51 (O’Connor, J., concurring) (citing Mobile, 446 U.S. at 83 (Stevens, J., concurring in judgment)).
This Court has refused to treat proportionality as either a “safe harbor” for jurisdictions or as a limit for plaintiffs, but does use proportionality as one of the factors in the totality of the circumstances so that it can be a practical, if not a per se, “safe harbor.” Johnson, 512 U.S. at 1019. The court continued explaining that in the Voting Rights Act context, the probative value of proportionality in determining a violation is limited:
It is enough to say that, while proportionality in the sense used here is obviously an indication that minority voters have an equal opportunity, in spite of racial polarization, ‘to participate in the political process and to elect candidates of their choice,’ 42 U.S.C. §1973(b) the degree of probative value assigned to proportionality may vary with other facts. No single statistic provides courts with a shortcut to

29
determine whether a set of single member districts unlawfully dilutes minority voting strength.
Id at 1020-21.
C. The Fourteenth Amendment Guarantees An Individual’s Right To Equal Protection Of The Law, Not The Rights Of Any Political Party.
While it is true that the right of a person to vote on an equal basis with other voters may draw “much of its significance from the political associations that its exercise reflects,” the Court’s decisions hold squarely that political groups themselves have no independent constitutional claim to assured representation. See Bandemer, 478 U.S. at 150 (O’Connor, J. concurring) (stating that there is no constitutional entitlement to group representation and stating that “political groups themselves [do not] have an independent constitutional claim to representation.”) (citing Mobile, 446 U.S. at 78-79). Simply put, “[w]hatever appeal [proportional representation] may have as a matter of political theory, it is not the law.” Mobile, 446 U.S. at 75. Such “entitlement . . . simply is not to be found in the Constitution of the United States.” Id. at 76.
Indeed, “the Constitution . . . guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews,

30
Republicans or Democrats, must be accorded political strength proportionate to their numbers.” Vieth, 541 U.S. at 288. This electoral process structure is meant to ensure equality of opportunity, not equality of outcome. As Judge Easterbrook once questioned, “[i]f specified groups are entitled to ‘their’ members in the legislature, why bother with elections?” Baird v. Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992) (Easterbrook, J.); Bandemer, 478 U.S. at 156 (O’Connor, J., concurring) (noting that the constitutional basis for intervening is particularly tenuous when the group involved in such a challenge is a major political party, “while membership in a racial group is an immutable characteristic, voters can -- and often do -- move from one party to the other or support candidates from both parties.”).
IV. The ‘Efficiency Gap’ Is Premised On A Constitutional Right To Proportional Representation And This Court Should Reject It.
As is demonstrated supra, there is no constitutional right to proportional representation. But the ‘efficiency gap’ is premised on a constitutional right to representation that is proportional to a political party’s statewide vote share.
To demonstrate discriminatory effect, the twojudge majority opinion relies on comparing the Republican Assembly statewide vote share to the number of Republican Assembly members. See Whitford, 218 F. Supp. 3d at 899. The two-judge majority found the record in Whitford to be more

31
complete than in Bandemer, and noted that the record in Whitford illustrates that in 2012, Democrats received a statewide majority of Assembly votes but won less than half of the Assembly seats. See id. at 902. Similarly, in 2014, Democrats received less than half of the statewide Assembly votes and won even fewer Assembly seats. See id.
Using the ‘efficiency gap’, the two-judge majority explains that the test “requires totaling, for each party, statewide, the number of votes cast for the losing candidates in district races along with the number of votes cast for the winning candidates in excess of 50% plus one votes necessary to secure the candidate’s victory. ...” Id. at 903. Stated differently, the ‘efficiency gap’ “can be viewed as a measure of the proportion of excess seats that a party secured in an election beyond what the party would be expected to obtain with a given share of the vote.” Id. at 904; see also id. at 947 (Griesbach, J., dissenting) (stating that the ‘efficiency gap’ test is premised on “comparing legislative seats to statewide votes ….”).
The results of this test show that in 2012, when Republicans won 61% of the Assembly seats with 48% of the statewide total, there was a 13% ‘efficiency gap’. See id. at 906. Similarly, in 2014, Republicans won 52% of the statewide vote and won 64% of the Assembly seats, which yielded an ‘efficiency gap’ of 10%. See id. As a result, the twojudge majority concluded that the enacted plan burdens Democrats’ representational rights by “impeding their ability to translate their votes into legislative seats.” Id. at 910.

32
According to the two-judge majority, adopting the ‘efficiency gap’ does not constitutionally require proportional representation. Rather, the ‘efficiency gap’ simply compares the “ratio of votes to seats in assessing a plan’s partisan effect.” Id. at 907.
First, the two-judge majority’s analysis is precisely what Justice O’Connor feared in her Bandemer concurrence, namely, that adopting the ‘efficiency gap’ will guarantee a constitutional right to some level of political party proportionality. See Bandemer, 478 U.S. at 145 (O’Connor, J., concurring) (“It is predictable that the courts will respond by moving away from the nebulous standard a plurality of the Court fashions today and toward some form of rough proportional representation for all political groups.”); see also id. at 159; see also Vieth, 541 U.S. at 282. The problem with comparing statewide vote totals to the number of seats won in a legislative body is that “voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties.” Bandemer, 478 U.S. at 159 (O’Connor, J., concurring). The comparison between statewide vote share and the number of Assembly districts won as a manner of gauging party strength “presuppose[s] a norm that does not exist.” Id; see Vieth, 541 U.S. at 287-88 (plurality opinion) (“[A]ppellants' test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives....this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle.”); see also id. at 308 (Kennedy, J., concurring) (“The

33
fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth's congressional delegation. There is no authority for this precept.”).
Furthermore, as the two-judge majority makes clear, the “ratio of votes to seats” is used to determine unconstitutional partisan intent. Whitford, 218 F. Supp. 3d at 907. The ‘efficiency gap’ is therefore premised on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” Bandemer, 478 U.S. at 159 (O’Connor, J., concurring). The problem with adopting the ‘efficiency gap’ and comparing statewide vote totals to number of seats won is that it is in tension with our district based winner-take-all elections. See id. Adopting the ‘efficiency gap’ test delegitimizes district elections, trading voting for district specific candidates as opposed to a statewide slate of candidates put forward by the political party. See id. This form of elections does not exist in the United States. See id. Furthermore, comparing political party’s statewide vote totals with the number of seats won “is a rough measure at best.” See LULAC, 548 U.S. at 419 (Kennedy, J., concurring in judgment).
Second, political party affiliation is an inherently mutable characteristic as voters often vote for different parties in both different elections and in the same election. See Bandemer, 478 U.S. at 156 (O’Connor, J., concurring); Vieth, 541 U.S. at 287 (“Political affiliation is not an immutable characteristic, but may shift from one election to the

34
next; and even within a given election, not all voters follow the party line.”). This is aptly demonstrated in the amicus brief submitted by the NRCC showing how many voters in Wisconsin, Pennsylvania, and Michigan, changed their vote from President Obama in 2012 to President Trump in 2016. See Br. of NRCC as Amicus Curiae at 43-44. In fact, twentytwo Wisconsin counties that voted for President Obama in 2012 voted for President Trump in 2016. See id. at 44.
Third, the “efficiency gap” takes a myopic view of political power, viewing political power solely in terms of a political party’s aggregated ability to win elections. But this Court has previously rejected that view stating that “the power to influence the political process is not limited to winning elections.” Bandemer, 478 U.S. at 132. As is demonstrated infra at 33-36, those who vote for a losing candidate may still influence policy and legislation. See id. The “efficiency gap” is unable to account for this political influence and is therefore a deficient test for determining whether a state legislature has violated an individual’s constitutional rights.
V. The “Efficiency Gap’s” Concept Of A “Wasted Vote” Should Be Rejected By This Court.
The suggestion that voting for a losing candidate is somehow “wasted” is highly offensive to the very concept of democracy, and should be firmly rejected by the Court. An elected candidate represents all of the residents in a given electoral jurisdiction, not merely the individuals or factions

35
who voted for him or her. Indeed, “[a]n individual or a group of individuals who votes for a losing candidate” is nonetheless “adequately represented by the winning candidate” and has just “as much opportunity to influence that candidate as other voters in the district.” Bandemer, 478 U.S. at 131-32 (citing Mobile, 446 U.S. at 111 n.7 (Marshall, J., dissenting)).
The Framers understood voters’ influence on the policymaking of legislators, and likely would be appalled at the idea of a “wasted” vote. As Federalist No. 35 emphatically states:
Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct?
The Federalist No. 35 (Alexander Hamilton). This view has been recognized in American jurisprudence. See, e.g., Gordon v. Holder, 721 F.3d 638, 650 (D.C. Cir. 2013) (“Is it not natural that a man who is a candidate for the favor of the people, . . . should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself…are the strong chords of sympathy between the representative and the constituent.”) (quoting The Federalist 35 (Alexander Hamilton))). The Federalist viewpoint

36
has also received empirical support. See William H. Page, Interest Groups, Antitrust, and State Regulation: Parker v. Brown in the Economic Theory of Legislation, 1987 Duke L.J. 618, 630 (The federalists “saw the need for individual legislators to represent a broad range of interests rather than a specific group . . . .”).
A political party’s failure at the polls does not entitle any political party to claim “that members of a political minority have suffered an impermissible dilution of political power.” Bandemer, 478 U.S. at 131-32. Instead, this Court assumes that the political party has the power to still influence “governmental decision making.” Id.
Undeniably, “[a]n individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district.” Id. at 132. Deficient representation cannot be assumed even in a district where a group loses election after election because it cannot be presumed that the elected official will entirely ignore the interests of voters who did not vote for the official. The “simple fact of an apportionment scheme that makes winning elections more difficult” does not mean a group's electoral power is unconstitutionally diminished. Bandemer, 478 U.S. at 131-32 (citing Mobile, 446 U.S. at 111 n.7 (Marshall, J., dissenting)).

37
As this Court previously stated,
As our system has it, one candidate wins, the others lose. Arguably the losing candidates' supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multimember districts. But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called "safe" districts where the same party wins year after year.
Whitcomb, 403 U.S. at 153.
Although a republican form of government necessarily limits direct public participation in government policymaking decisions, see Federalist No. 10, it is readily apparent and well documented that elected officials are responsive to public opinion. For example, in a research article considering the impact of public opinion on public policy, major findings included, inter alia, that the impact of public opinion is substantial, the impact of opinion remains strong even when the activities of political organizations and elites are taken into account, and responsiveness appears not to have changed significantly over time. See Paul Burstein, The Impact of Public Opinion on Public Policy: A Review and an Agenda, 56 Pol. Research Q. 29 (2003).

38
Furthermore, studies have demonstrated that a voter’s policy preferences predict aggregate roll-call behavior of Senators. See John D. Griffin & Brian Newman, Are Voters Better Represented? 67 J. of Pol. 1206, 1215-18 (2005).
The fact that Appellees’ standard is premised on the idea that votes are “wasted” is foreign to our constitutional government. This Court should reject it.
VI. Conclusion
For the foregoing reasons, along with the arguments advanced by the State of Wisconsin and the many arguments of other amici in support of the State, this Court should reverse the opinion of the court below.
Respectfully submitted,
Thomas J. Josefiak Counsel of Record J. Michael Bayes Shawn Toomey Sheehy Steven P. Saxe Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive Suite 100 Warrenton, VA 20186 (540) 341-8808 (540) 341-8809 tomj@hvjt.law
August 4, 2017

 
 NO. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, et al., Appellants,
v.
WILLIAM WHITFORD, et al., Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF OF REPUBLICAN STATE LEADERSHIP COMMITTEE AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

Matthew Raymer Vice President and
General Counsel Republican State
Leadership Committee 1201 F Street, NW Suite 675 Washington, DC 20004 (202) 448-5160 mraymer@rslc.gop

Efrem M. Braden Counsel of Record
Katherine L. McKnight Richard B. Raile Baker & Hostetler LLP 1050 Connecticut Avenue NW Suite 1100 Washington, DC 20036 (202) 861-1504 mbraden@bakerlaw.com kmcknight@bakerlaw.com rraile@bakerlaw.com

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
Table of Contents
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . ii
Interest of the Amicus Curiae . . . . . . . . . . . . . . . . . . 1
Introduction and Summary of Argument . . . . . . . . . 2
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. There Is No Cognizable Claim Here Under Familiar and Well-Developed Constitutional Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. No Familiar and Well-Developed EqualProtection Standard Has Been Violated . . . 10
B. No Familiar and Well-Developed Fundamental-Right or Liberty-Interest Standard Has Been Violated . . . . . . . . . . . . 16
C. No Familiar and Well-Developed First Amendment Standard Has Been Violated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
D. Familiar and Well-Developed Standards Do Not Support Relief for Alleged PoliticalGerrymandering Claims in the Current Political Paradigm . . . . . . . . . . . . . . . . . . . . 26
II. Departure from Familiar and Well-Developed Standards Is Not Warranted Because the Alleged Harms of Gerrymandering Are Not Substantiated . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ii
Table of Authorities
CASES
Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . 16, 18
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) . . . . . . . . . . . . . . . . . . . . . 8
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 997 F. Supp. 2d 1047 (D. Ariz. 2014) . . . . . . . . . 7
Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . 23
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) . . . . . . . . . . . . . . . . . . . . . . 24
Baker v. Carr, 369 U.S. 224 (1962) . . . . . . . . . . . . . . . . . . passim
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) . . . . . . . . . . . . . . . . . . . . . . . 23
Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005) . . . . . . . . . . . . . 24
Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009) . . . . . . . . . . . . . . . 23
Bruner v. Baker, 506 F.3d 1021 (10th Cir. 2007) . . . . . . . . . . . . . 24
Burdick v. Takushi, 504 U.S. 428 (1992) . . . . . . . . . . . . . . . . . . . 16, 18

iii
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) . . . . . . . . . . . . . . . . . 4, 23, 25
Chapman v. Meier, 420 U.S. 1 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . 6
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) . . . . . . . . . . . . . 11, 12, 13, 27
Colegrove v. Green, 328 U.S. 549 (1946) . . . . . . . . . . . . . . . . . . . . 2, 30
Connor v. Finch, 431 U.S. 407 (1977) . . . . . . . . . . . . . . . . . . . . . . . 6
Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002) . . . . . . . . . 7
Cox v. Larios, 542 U.S. 947 (2004) . . . . . . . . . . . . . . . . . . . . . . 17
Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) . . . . . . . . . . . . . . . 3, 4, 16, 18
Davis v. Bandemer, 478 U.S. 109 (1986) . . . . . . . . . . . . . . . . . . passim
Dye v. McKeithen, 856 F. Supp. 303 (W.D. La. 1994) . . . . . . . . . . 7, 8
Easley v. Cromartie, 532 U.S. 234 (2001) . . . . . . . . . . . . . . . . . . . . . . . 7
Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . 4, 23
Essex v. Kobach, 874 F. Supp. 2d 1069 (D. Kan. 2012) . . . . . . . . . 7

iv
Evenwel v. Perry, No. A-14-CV-335, 2014 WL 5780507 (W.D. Tex. Nov. 5, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . 13
Gaffney v. Cummings, 412 U.S. 735 (1973) . . . . . . . . . . . . . . . . . . passim
Gorin v. Karpan, 775 F. Supp. 1430 (D. Wyo. 1991) . . . . . . . . . . . . 8
Graves v. Barnes, 446 F. Supp. 560 (W.D. Tex. 1977) . . . . . . . . . . . 8
Growe v. Emison, 507 U.S. 25 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 7
Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150 (1897) . . . . . . . . . . . . . . . . . . . . . . 10
Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301 (2016) . . . . . . . . . . . . . . . . . 16, 17
Harris v. McCrory, No. 1:13-cv-949, 2014 WL 12600710 (M.D.N.C. May 22, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Hill v. City of Pine Bluff, Ark., 696 F.3d 709 (8th Cir. 2012) . . . . . . . . . . . . . . . 24
Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. 1996) . . . . . . . . . . . 7
Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002) . . . . . . . . . . . . . . . 24

v
Kostick v. Nago, 960 F. Supp. 2d 1074 (D. Hawaii 2013) . . . . . . . 7
LaComb v. Growe, 541 F. Supp. 160 (D. Minn. 1982) . . . . . . . . . . . . 8
Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) . . . . . . . . 17
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . 7, 9, 17
Lochner v. New York, 198 U.S. 45 (1905) . . . . . . . . . . . . . . . . . . . . . . . 20
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . . 13
Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005) . . . . . . . . . . . . . . . 24
Miller v. Johnson, 515 U.S. 900 (1995) . . . . . . . . . . . . . . . 2, 6, 11, 12
Montes v. City of Yakima, No. 12-cv-3108, 2015 WL 11120964 (E.D. Wa. Feb. 17, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
NAACP v. Austin, 857 F. Supp. 560 (E.D. Mich. 1994) . . . . . . . . . . 7
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . 31
N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) . . . . . . . . . . . . . . . . . . . . . . 26
O’Sullivan v. Brier, 540 F. Supp. 1200 (D. Kan. 1982) . . . . . . . . . . . . 8

vi
Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977) . . . . . . . . . . . . 8
Perry v. Perez, 565 U.S. 388 (2012) . . . . . . . . . . . . . . . . . . . . . . . 7
Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . 3
Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . 2, 6, 18
Shaw v. Reno, 509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . 11, 12
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) . . . . . . . . . . . . . . . 4, 5, 23, 25
Terrazas v. Clements, 537 F. Supp. 514 (N.D. Tex. 1982) . . . . . . . . . . . 8
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . . . . . . . . . . . . . . . 4, 20, 21
United States v. Carolene Prods. Co., 304 U.S. 144 (1938) . . . . . . . . . . . . . . . . . . . . 3, 29
Vieth v. Jubelirer, 541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . passim
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . 10, 12
Voinovich v. Quilter, 507 U.S. 146 (1993) . . . . . . . . . . . . . . . . . . . . . . . 7

vii
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) . . . . . . . . . . . . . . . . . . . . . . 25
Washington v. Davis, 426 U.S. 229 (1976) . . . . . . . . . . . . . . . . . . . . . . 10
Whitcomb v. Chavis, 403 U.S. 124 (1971) . . . . . . . . . . . . . . . . . . . 19, 20
White v. Regester, 412 U.S. 755 (1973) . . . . . . . . . . . . . . . . . . . . . . 20
White v. Weiser, 412 U.S. 783 (1973) . . . . . . . . . . . . . . . . . . . . . . 15
Whitford v. Gill, 218 F. Supp. 3d (W.D. Wis. 2016) . . . . . . . passim
Wittman v. Personhuballah, 136 S. Ct. 1732 (2016) . . . . . . . . . . . . . . . . . . . . 15
Zelnik v. Fashion Inst. of Tech., 464 F.3d 217 (2d Cir. 2006) . . . . . . . . . . . . . . . . 24
CONSTITUTION
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . passim
U.S. Const. art. IV § 4 . . . . . . . . . . . . . . . . . . . . . . . 30
RULES
Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

viii
OTHER AUTHORITIES
Thomas L. Brunell, Redistricting and Representation: Why Competitive Elections are Bad for America (2008) . . . . . . . . . . . . . . . . . . . 19
James E. Campbell, Polarized: Making Sense of a Divided America (2016) . . . . . . . . . . . . . . . . 31, 32
Council of State Governments, The Legislators: Number, Terms and Party Affiliations, 19372003, in The Book of the States Volumes 2-35 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Thomas E. Mann & Bruce E. Cain, Party Lines: Competition, Partisanship, and Congressional Redistricting (2005) . . . . . . . . . . . . . . . . . . . . . . 32
Nolan McCarty, Keith T. Poole & Howard Rosenthal, Does Gerrymandering Cause Polarization?, 53 Am. J. of Pol. Sci. 666 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33, 34
Nolan McCarty, Keith T. Poole & Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches (2016) . . . . . . 31, 32

1
Interest of the Amicus Curiae1
The Republican State Leadership Committee (“RSLC”) is the Nation’s largest organization representing Republican elected state officials. RSLC is the parent organization of the Republican Legislative Campaign Committee, the only national organization exclusively dedicated to electing Republicans to state legislatures. RSLC’s state-legislator members are key stakeholders in the redistricting process in their respective states. Other organizations within RSLC include the Republican Lieutenant Governors Association and the Republican Secretaries of State Committee. Secretaries of State are the principal election officials in most states. Accordingly, RSLC members are, or have been, active participants in the crafting of representational districts in their states. RSLC submits this brief because affirming the decision below would undermine state officials’ role in redistricting and unravel this Court’s longstanding tradition of reviewing redistricting only to enforce clear legal standards, rather than freewheeling views on public policy, social science, and political philosophy.
1 Pursuant to Rule 37.6, counsel for the amicus curiae certifies that no counsel for any party authored this brief in whole or in part and that no person or entity other than the amicus curiae or their counsel made a monetary contribution intended to fund the brief’s preparation or submission. Letters from the parties consenting to the filing of amicus briefs in support of either or no party are filed with the clerk.

2
Introduction and Summary of Argument
Virtually every federal-court redistricting decision issued since this Court first announced the one-person, one-vote standard confirms that “legislative reapportionment is primarily a matter for legislative consideration and determination,” Reynolds v. Sims, 377 U.S. 533, 586 (1964), and that the judiciary should review redistricting only “with extraordinary caution,” Miller v. Johnson, 515 U.S. 900, 916 (1995). Plaintiffs ask this Court to reject this time-honored approach of caution and restraint and to revolutionize the relationship between the federal courts and state governments. A holding in their favor would politicize the courts and would go far beyond intervention in the “political thicket”2; it would impale the judiciary on its thorns.
RSLC opposes this request and Plaintiffs’ theories of relief. It agrees with the State Defendants that Plaintiffs’ various social-science standards are “the opposite of limited and precise” and that their claim is non-justiciable. State Br. at 23. Additionally, RSLC believes Plaintiffs’ case has no basis in “well developed and familiar” equal-protection and free-speech standards that must provide the framework for judicial review. Baker v. Carr, 369 U.S. 224, 227 (1962). The concurring opinion in Vieth v. Jubelirer that left open the possibility of a justiciable political-gerrymandering cause of action identified a violation of these standards as the sine qua non of any viable claim. 541 U.S. 267, 314 (2004) (Kennedy, J., concurring). Yet the district
2 Colegrove v. Green, 328 U.S. 549, 556 (1946).

3
court’s test was not grounded in those standards, and Plaintiffs have not satisfied them.
Justiciability concerns aside, no equal-protection, free-speech, or free-association standards are violated here, and they may never be violated in cases between major political parties in a healthy two-party system. That is first and foremost because “political classifications” are not “unrelated to the [legitimate] aims of apportionment” and are thus “permissible” classifications. Id. (emphasis added). The district court’s creation of an “intent” element founded on racial-discrimination doctrine ignored this crucial distinction between racial classifications, which are inherently suspect, and political ones, which are not. It erroneously established a standard whereby the Democratic and Republican Parties—which are comprised of millions of members, obtain millions of dollars in funding each year, and are fully capable of protecting their interests in the political process—enjoy the same standing in the equal-protection matrix as “discrete and insular minorities,” United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938), or individuals with “an immutable characteristic which its possessors are powerless to escape or set aside.” Regents of Univ. of California v. Bakke, 438 U.S. 265, 360 (1978). Far from “familiar,” the district court’s standard is unheard of.
Secondly, “political gerrymandering” of the genre alleged here does not place a meaningful burden on any fundamental right or liberty interest. The Court has held that partisan intent does not invalidate a voting restriction that does not otherwise place a severe burden on the right to vote, Crawford v. Marion Cty.

4
Election Bd., 553 U.S. 181, 203–04 (2008), and partisan intent also does not itself amount to vote dilution, Gaffney v. Cummings, 412 U.S. 735, 750 (1973). But, apart from claims of partisanship, there is no cognizable burden here because nothing stands between any voter, candidate, or political party and the state’s ballot. Nor is there cognizable vote dilution because all votes are counted equally and all residents are equally represented. Existing standards presume neither that political parties are entitled to elect their preferred candidates nor that the representatives elected in each district will fail to represent the interests of individuals who did not vote for them.
In concluding otherwise, the district court applied a more lenient standard than exists for racial minorities under the Voting Rights Act as set forth in Thornburg v. Gingles, 478 U.S. 30 (1986). Under that test, a minority group comprising approximately 50% of the population and holding approximately 40% of the seats would not have a viable claim of vote dilution, especially where there is substantial crossover voting each election. That a major political party has been deemed to have greater rights to representation under the Constitution than a racial minority has under a civil-rights statute is nothing short of absurd.
Third, there is no cognizable burden on speech or association because no speech is restrained and no reasonable person would choose to forego speech or association for fear of gerrymandering. Contrast Elrod v. Burns, 427 U.S. 347, 357 (1976). There is also no burden on association rights such as compelled association, Cal. Democratic Party v. Jones, 530 U.S. 567, 572–82 (2000), or non-association, Tashjian v.

5
Republican Party of Conn., 479 U.S. 208, 214–17 (1986). Plaintiffs are not claiming that government regulation is restricting their speech, chilling their speech, or regulating their internal affairs. They are asserting a right for their candidates to be elected and for government control. The First Amendment does not confer that right.
In short, no “well developed and familiar” standard supports Plaintiffs’ claims. Baker, 369 U.S. at 227. Indeed, in the war between two well-matched foes like the Republican and Democratic Parties, which are more than capable of defending their interests in the political process, it is doubtful that a violation of “well developed and familiar” constitutional standards will ever occur. If the Court chooses to leave open the possibility of future political-gerrymandering claims, it should at least make clear that this possibility is reserved for a different political paradigm, such as one involving the fencing out of a discrete and insular minority party, or the seizure of complete control of government power by one party, such that a vote for the opposing party literally does not count. That is not this case. Instead, this case should be viewed as raising, if anything, questions under the Guarantee Clause, which is the proper conceptual framework by which to view arguments that the electoral process is not sufficiently responsive to popular will.
Finally, even if the Court were inclined to innovate in this area, the purported social harm to be remedied, political polarization, has little to do with “partisan gerrymandering.” Politics in the United States are polarized and have been for decades for a variety of reasons, and it is highly unlikely that partisan

6
redistricting contributes to this polarization. If it did, one would expect the U.S. Senate to be less polarized than the House of Representatives, and that is manifestly not the case. Even if the Court views gerrymandering as a “disease,” there is no cure available from the judiciary, and the purported cure posed here carries far graver consequences to the redistricting process than judicial abstention.
Accordingly, Plaintiffs’ challenge should be rejected, and the decision below should be reversed.
Argument
I. There Is No Cognizable Claim Here Under Familiar and Well-Developed Constitutional Standards
When this Court first waded into the “political thicket,” it intended neither to usurp redistricting from state control nor to expunge the typical political concerns that play into that process, but rather to correct actual inequality either involving an impermissible classification or an undue burden on the fundamental right to vote. That is evidenced in virtually every federal redistricting case since 1964, which all assert that redistricting is a political process to be carried out by political actors in all but extraordinary circumstances. Reynolds v. Sims, 377 U.S. 533, 586 (1964); Miller v. Johnson, 515 U.S. 900, 916 (1995); Chapman v. Meier, 420 U.S. 1, 27 (1975) (“[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court[.]”); Connor v. Finch, 431 U.S. 407, 414–15 (1977) (“[A] state legislature is the institution that is by far the best

7
situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality[.]”); Growe v. Emison, 507 U.S. 25, 34 (1993) (“Today we renew our adherence to the principle[]…that the Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts[.]”); Voinovich v. Quilter, 507 U.S. 146, 156 (1993) (“Time and again we have emphasized that reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.”) (quotation marks omitted); Easley v. Cromartie, 532 U.S. 234, 242 (2001); Perry v. Perez, 565 U.S. 388, 392 (2012) (“Redistricting is primarily the duty and responsibility of the State.”) (quotation marks omitted); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414–415 (2006) (“LULAC”) (explaining that the Constitution “leaves with the States primary responsibility for the apportionment of their federal congressional…districts”) (quotation marks omitted). See also, e.g., Montes v. City of Yakima, No. 12-cv-3108, 2015 WL 11120964, *4 (E.D. Wa. Feb. 17, 2015); Evenwel v. Perry, No. A-14-CV-335, 2014 WL 5780507, *4 n.5 (W.D. Tex. Nov. 5, 2014); Harris v. McCrory, No. 1:13-cv-949, 2014 WL 12600710, *2 (M.D.N.C. May 22, 2014); Ariz. State Legislature v. Ariz. Independent Redistricting Comm’n, 997 F. Supp. 2d 1047, 1054 (D. Ariz. 2014); Kostick v. Nago, 960 F. Supp. 2d 1074, 1102 n. 17 (D. Hawaii 2013); Essex v. Kobach, 874 F. Supp. 2d 1069, 1075 (D. Kan. 2012); Corbett v. Sullivan, 202 F. Supp. 2d 972, 981 (E.D. Mo. 2002); Johnson v. Mortham, 926 F. Supp. 1460, 1504 (N.D. Fla. 1996); NAACP v. Austin, 857 F. Supp. 560, 567 (E.D. Mich. 1994); Dye v. McKeithen, 856 F. Supp. 303,

8
313 (W.D. La. 1994); Gorin v. Karpan, 775 F. Supp. 1430, 1445 (D. Wyo. 1991); LaComb v. Growe, 541 F. Supp. 160, 162 (D. Minn. 1982); O’Sullivan v. Brier, 540 F. Supp. 1200, 1202 (D. Kan. 1982); Terrazas v. Clements, 537 F. Supp. 514, 527 (N.D. Tex. 1982); Graves v. Barnes, 446 F. Supp. 560, 564 (W.D. Tex. 1977); Paige v. Gray, 437 F. Supp. 137, 163 (M.D. Ga. 1977).
Accordingly, the Court’s redistricting case law is predicated on neutral rules of decision founded in “well developed and familiar” equal-protection standards, Baker v. Carr, 369 U.S. 224, 227 (1962), and the Court has never claimed responsibility to enforce vague notions of what is and is not compatible with “democratic principles.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (quotation marks omitted).
But there are no “well developed and familiar” constitutional standards that would support a claim for relief in this case or any case like it. Accordingly, in Vieth v. Jubelirer, 541 U.S. 267, 271–306 (2004), four Justices of this Court rejected on justiciability grounds Fourteenth and First Amendment “partisan gerrymandering” claims against Pennsylvania’s 2001 congressional plan. The Vieth plurality opinion speaks for itself and is as compelling today as in 2004. It goes without saying that Plaintiffs here have no claim under that opinion.
Additionally, the concurring opinion of Justice Kennedy, see Vieth, 541 U.S. at 306–17, does not support relief in this case or even in this political paradigm. Even while acknowledging the “weighty arguments for holding cases like these to be

9
nonjusticiable” and conceding that “those arguments may prevail in the long run,” 541 U.S. at 309, the Kennedy opinion observed that “[i]t is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied,” id. at 309–10, and that “the impossibility of full analytical satisfaction is reason to err on the side of caution,” id. at 311.
But this was a position of judicial restraint, not an invitation for judicial activism. The concurring opinion expressly identified a sufficient basis to dispose of the case at hand “under the governing Fourteenth Amendment standard”: because the challengers failed to show a “burden” on “their representational rights,” their allegation “that the legislature adopted political classifications” stated “no constitutional flaw.” Id. at 313. Thus, like Baker v. Carr, the Kennedy opinion directs the analysis to “the more abstract standards that guide analysis of all Fourteenth Amendment claims,” and, because political classifications are not inherently suspect, a plaintiff must identify “a subsidiary standard” to “show how an otherwise permissible classification, as applied, burdens representational rights.” Id. at 310, 313. Failing at that, justiciability concerns aside, a plaintiff “states no valid claim on which relief may be granted.” Id. at 313. See also LULAC, 548 U.S. at 418 (opinion of Kennedy, J.) (“[A] successful claim attempting to identify unconstitutional acts of partisan gerrymandering must…: show a burden, as measured by a reliable standard, on the complainants’ representational rights.”).

10
The decision below did not apply the familiar standards necessary to show a burden on representational rights, and Plaintiffs cannot meet them. The district court could only rule for Plaintiffs by a sleight of hand in citing and summarizing literally dozens of Equal Protection and First Amendment precedents, while ignoring that none of those decisions, nor the legal doctrines they developed, would support a claim for relief. Whitford v. Gill, 218 F. Supp. 3d 837, 864–891 (W.D. Wis. 2016). As a result, its three-part test is a cross-breed of half-articulated doctrines that the district court applied only up until the point where each given doctrine would refute Plaintiffs’ claim; on reaching that point, the court selected a new doctrine to continue the analysis. Whatever may be said for this approach in terms of creativity, it has nothing to do with familiar and well-developed standards.
A. No Familiar and Well-Developed EqualProtection Standard Has Been Violated
The court first relied on causes of action providing relief against legislation passed with an impermissible motive, such as Washington v. Davis, 426 U.S. 229, 240 (1976), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Whitford, 218 F. Supp. 3d at 884. But in citing these for the generic proposition that “[t]he Supreme Court has stressed the basic equal protection principle that invidious quality of law must ultimately be traced to a discriminatory purpose,” id., the court bypassed what “invidious” means: a classification bearing no “reasonable and just relation to the act in respect to which the classification is proposed.” Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 155 (1897). The court

11
neglected the other side of the equal-protection coin, which is that if a state’s classification is not suspect, it does not warrant heightened scrutiny, and federal oversight is limited to rational-basis review. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
The racial-classification standards therefore do not apply to “political classifications,” because they are “permissible.” Vieth, 541 U.S. at 314 (Kennedy, J.) (emphasis added). The district court’s “intent” element ignored this distinction and thereby did not address the “obstacles” that Justice Kennedy’s Vieth opinion identified as requiring resolution. 541 U.S. at 306. For instance, the court was obliged to “rest” its holding on “something more than the conclusion that political classifications were applied” and to identify how they were applied in “an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307. That analysis does not appear in the decision below, which instead assumed that racial-intent standards “appl[y] with equal force to cases involving political gerrymanders.” Whitford, 218 F. Supp. 3d at 884. That is simply not true.
Remarkably, the district court’s decision conceded that this Court’s racial-gerrymandering intent standard “does not speak directly to the political gerrymandering case before us” because those cases, such as Shaw v. Reno, 509 U.S. 630 (1993), and Miller v. Johnson, 515 U.S. 900 (1995), involve “racial stereotypes.” Whitford, 218 F. Supp. 3d at 887 n.171. Yet the district court applied a lower intent standard than applies in those cases, finding it sufficient for a political-gerrymandering plaintiff to show “that the

12
intent to entrench the Republican Party in power was ‘a motivating factor in the decision.’” Id. at 887 (quoting Arlington Heights, 429 U.S. at 265–66). In borrowing the test from Arlington Heights, the Court ignored that it also was a racial-discrimination case and, in fact, supplied the doctrinal groundwork for the Shaw cases, at least as far as intent is concerned. See Shaw, 509 U.S. at 643 (quoting Arlington Heights, 429 U.S. at 266); Miller, 515 U.S. at 913 (quoting Arlington Heights, 429 U.S. at 266).
The only difference between the Shaw intent standard and the Arlington Heights intent standard is that the Shaw intent standard is more stringent, “predominance,” where the Arlington Heights framework shifts the burden to the state where race is even a “motivating factor in the decision.” Arlington Heights, 429 U.S. at 265–66. It is mystifying that the court would reject the more demanding “predominance” test, admitting that “the [Supreme] Court has rejected” it “in the context of political gerrymandering claims,” Whitford, 218 F. Supp. 3d at 887 n.171, only to apply the more lenient standard of Arlington Heights. If the higher predominance standard has been rejected (it has), then a lower standard cannot be its substitute.
Because the district court did not identify an inherently suspect classification, it should have examined the plan under the highly deferential rational-basis standard typically applied to non-suspect classifications. See City of Cleburne, 473 U.S. at 440. Members of a major political party do not bear an immutable characteristic, they are not a discrete and insular minority, they do not have a history of unequal treatment, and they are well-represented in the

13
legislative process—even when they do not constitute a majority. See id. Members or supporters of a major political party cannot seriously expect, as a class, to receive enhanced scrutiny where discrimination claims by the mentally disabled and elderly fall under rational-basis review. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313–14 (1976); City of Cleburne, 473 U.S. at 440.
The rational-basis standard is met “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). “Perfection in making the necessary classifications is neither possible nor necessary.” Mass. Bd. of Ret., 427 U.S. at 314. But that is not the standard the district court applied. In assessing whether the plan was “justified,” the district court assumed that political considerations were illegitimate and assessed only whether other “legitimate state concerns” explained the partisan results. See Whitford, 218 F. Supp. 3d at 910–12. Because rational-basis review proceeds from the opposite presumption, that the state’s criteria are legitimate until proven otherwise, the court should have assumed that the legislature’s political classifications were legitimate as well. It should have required Plaintiffs to show that there is no “reasonably conceivable state of facts that could provide a rational basis for the classification.” Beach Commcn’s, 508 U.S. at 313.
But the basis for the use of partisan classifications and political data is rational and supported by this Court’s precedent. Because it is “absolutely unavoidable” that “the location and shape of districts

14
may well determine the political complexion of the area,” state legislatures have very little choice other than to consider political data. Gaffney, 412 U.S. at 753. Legislative bodies use election data for many reasons other than simple partisan advance. Legislators are necessarily tasked with allocating the benefits and burdens of reapportionment on competing political interests, and a “politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results.” Id. As the Court observed in Gaffney:
[d]istrict lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences.
Id. Political data provide an effective proxy for identifying those interests, given that voting patterns tend to correspond with societal similarities and differences, thereby allowing redistricting to respect and preserve communities of interest. Moreover, partisan advance itself is a legitimate criterion insofar as political classifications may be used to obtain the political support for necessary passage of a redistricting plan. Rational-basis review requires no further scrutiny than this.
Furthermore, the legislative process of protecting incumbents, both by avoiding pairing incumbents and by preserving their core constituencies, may “preserve[]

15
the seniority the members of the State’s [congressional] delegation have achieved in the United States House of Representatives,” White v. Weiser, 412 U.S. 783, 792 (1973), or the experience of state legislators whose incumbency serves institutional interests. This allows the representative body, whose members have personal knowledge of the effectiveness of other members, to have a say in its composition, thereby providing an added check in the complex system of republican government.
The Court saw an example of how “political blindness” can adversely affect voters in Wittman v. Personhuballah, 136 S. Ct. 1732 (2016). In that litigation, the 2012 Virginia Congressional reapportionment plan was enjoined in district court on racial-gerrymandering grounds, and while the appeal was pending before this Court, the district court appointed a special master to draw a new plan. Id. at 1735–36. That plan, which ignored political considerations, drew incumbent member Randy Forbes out of Congressional District 4, which included Norfolk and Hampton Roads. Notwithstanding his effort to run under the newly constructed district, Mr. Forbes was not reelected, thereby eliminating this senior member, and presumed future chair of the House Armed Services Committee, from the Virginia delegation. The result of this non-partisan, politically blind cartography seems unlikely to have advanced the interests of residents in what is among the most militarydependent congressional districts in the Nation.

16
B. No Familiar and Well-Developed Fundamental-Right or Liberty-Interest Standard Has Been Violated
The district court also relied on cases addressing partisan intent in the one-person, one-vote context, Whitford, 218 F. Supp. 3d at 885 (citing Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016)), and in the context of the Anderson/Burdick framework for adjudicating alleged burdens on voting rights. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). These doctrines, which provide judicial review for alleged burdens on the fundamental right to vote, defeat Plaintiffs’ claims because they hold that partisan intent does not amount to a burden on the right to vote. Under these principles, Plaintiffs were required to show a burden independent from partisan intent, and they have not.
In discussing the Anderson/Burdick framework, the district court ignored Crawford v. Marion County Election Bd., 553 U.S. 181, 203–04 (2008), which held that, if a voting restriction or qualification is otherwise justified, partisan intent does not invalidate the state’s “valid neutral justifications” for the voting requirement. To be sure, Crawford stated that partisan intent cannot justify a voting requirement if that requirement places an otherwise unjustified burden on the right to vote. Id. But this means only that partisanship is a nullity: it neither saves an otherwise impermissible burden on the right to vote nor establishes an independent basis for striking down a law. Id.

17
That also appears to be the rule under the oneperson, one-vote framework. The district court cited the one-person-one-vote cases for the underwhelming proposition that “the constitutionality of partisan favoritism in redistricting is an open question,” Whitford, 218 F. Supp. 3d at 885, but that is not accurate. The Court’s decisions in Harris v. Ariz. Indep. Redistricting Comm’n and Gaffney v. Cummings and its summary affirmance of Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004), see Cox v. Larios, 542 U.S. 947 (2004), addressed whether partisan favoritism can justify inequality of population in voting districts, not whether partisan favoritism amounts to a basis independent of population inequality to invalidate a plan. In fact, the Court in Harris went so far as to warn potential challengers that “we believe attacks on deviations under 10%,” the presumptive threshold for when deviations from equality become de minimis, “will succeed only rarely, in unusual cases.” 136 S. Ct. at 1307. That is hardly a compelling basis to conclude that one out of every three legislative maps over the past 45 years is unconstitutionally partisan. See State Br. at 3, 24, 58.
Thus, under either set of equal-protection principles, the crux of any claim is not an alleged partisan intent, but rather the degree of burden, if any, on the right to vote. See Vieth, 541 U.S. at 314 (Kennedy, J., concurring) (observing that a plaintiff must show a plan “burdens representational rights”); LULAC, 548 U.S. at 418 (opinion of Kennedy, J.) (same). Here, there is no burden on the right to vote and no vote dilution that resembles what the Court has previously recognized as actionable. The purported “discriminatory effect” the district court identified was that “the number of

18
Republican seats would not drop below 50%” under the challenged plan, Whitford, 218 F. Supp. 3d at 898, and that the legislature accomplished this by “cracking” and “packing” perceived Democratic voters resulting in more “wasted” votes for the Democratic Party than for the Republican Party, id. at 903–04.
That is not similar to the burdens on the right to vote at issue under the Anderson/Burdick line of cases, which involve barriers to participation in the voting process, such as restrictions on ballot access for political parties and candidates, Anderson, 460 U.S. at 787, bars on write-in voting, Burdick, 504 U.S. at 434–35, and voter qualifications that may limit access to the polls, Crawford, 553 U.S. at 211–18. Unlike in those cases, Wisconsin’s redistricting plan places no obstacle between a voter and a polling place or a political party or candidate and a ballot. Here, there is no burden on the right to vote, much less a “severe” one requiring state justification. Burdick, 504 U.S. at 434.
Likewise, the “discriminatory effect” identified here is not analogous to the vote dilution present in the Court’s one-person, one-vote cases. Those decisions prohibit “[w]eighting the votes of citizens differently.” Reynolds v. Sims, 377 U.S. 533, 563 (1964). But, in this case, all districts have approximately equal population, and residents have approximately equal representation in the legislature.
The difference between this case and both the voting-restriction and vote-dilution cases is not merely technical, but rather goes to fundamental differences as to the theories’ respective “model[s] of fair and effective representation.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring). This Court’s familiar and well-established

19
standards seek to protect the right to participation in the electoral process, through fair and congruent voting requirements and relative equality of representation, as measured by the number of representatives assigned to a given number of residents. The district court’s “wasted vote” theory is not predicated on participation, but on partisan success: it proposes that a voter who is allowed to vote and has equal representation on a representative-to-resident basis nevertheless experiences an injury to his or her representational rights if his or her vote is “cast for losing candidates” or is “cast for winning candidates in excess of 50% plus one.” Whitford, 218 F. Supp. 3d at 903 n.274. In other words, a voter’s participation is only meaningful, and representation is only secured, if that voter’s vote was for a winning candidate and was essential to that candidate’s victory. But this theory ignores the usual assumption that a representative for whom the individual voter did not vote nevertheless will represent that voter’s interest. See Davis v. Bandemer, 478 U.S. 109, 132 (1986); Whitcomb v. Chavis, 403 U.S. 124, 149–153 (1971). It also ignores the legitimate reasons why a state, or its voters, may prefer districts with much higher numbers of voters who support a common candidate than are needed to put that candidate in office, given that “the closer the representative is to the voter ideologically, the more satisfied is the voter.” Thomas L. Brunell, Redistricting and Representation: Why Competitive Elections are Bad for America 30 (2008); see also id. at 11 (“Voters are more satisfied” in non-competitive districts “because they are better represented” where the representative “receives clear, noncontradictory signals from his district as to how to vote on the issues of the day”). Most fundamentally, it ignores that there may be

20
other considerations for creating districts than where specific partisan votes would have maximum “effect.” Whitford, 218 F. Supp. 3d at 903 n.274.
Whatever may be said for the district court’s political theory, the view that a political party’s ability to elect its preferred candidates is the equivalent of constitutionally protected participatory rights is completely novel. It bears no support in familiar standards, and the Court should think twice before constitutionalizing it—or any similar standard. See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (“The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”).
Indeed, there is only one context where the Court has been willing to equate a group’s failure “to elect candidates of [its] choice” with its “opportunity to participate in the political process,” and that is under Section 2 of the Voting Rights Act. That cause of action differs from this one in that (1) it is based on a statute, not in the federal constitution, and (2) depends yet again on the existence of a group with an immutable characteristic: race or color. Thornburg v. Gingles, 478 U.S. 30, 48–80 (1986). It would, of course, be untenable for Plaintiffs to invoke this standard where these elements are not met.3
3 The Court has applied a different standard in assessing constitutional claims by racial minorities for vote-dilution. See, e.g., White v. Regester, 412 U.S. 755, 769 (1973); Whitcomb, 403 U.S. at 149. But this standard turns on a showing of racial discrimination, and is inapplicable for the reasons stated above, Section I.A. The Gingles factors provide the only standard that has been successfully applied to identify vote dilution absent the finding that a state intentionally utilized a suspect classification.

21
But, setting that aside, it is telling that Plaintiffs’ purported vote-dilution claim would fail the Gingles standard. Gingles requires a showing that “a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group.” 478 U.S. at 48–49. Plaintiffs would be unable to claim that their candidates are usually defeated at the polls when they control approximately 40% of the legislature. Whitford, 218 F. Supp. 3d at 902. Plaintiffs’ Section 2 claim would also fail for lack of a “politically cohesive unit.” Gingles, 478 U.S. at 56. The group they claim has been disproportionally burdened is comprised of anyone who has cast a vote for Democratic candidates in recent memory, but membership in and support for the Democratic Party (and the Republican Party) is fluid. For the same reason, Plaintiffs would be unable to show polarized voting. Gingles, 478 U.S. at 52. In their own telling, Wisconsin is a “closely divided swing state” whose voters “backed the Democratic candidate for President in 2012 and the Republican candidate in 2016.” Motion to Affirm at 1. Clearly, Democratic and Republican voters cross party lines regularly in given elections, and there is no doubt a healthy contingency of independent voters who will back the candidates of either party depending on those candidates’ respective merits. Additionally, Plaintiffs’ “wasted vote” theory does not turn on whether such a community is “geographically compact,” Gingles, 478 U.S. at 50, and would allow—indeed, it may often require—states to draw bizarre districts.
Thus, Plaintiffs’ claims fail the most generous votedilution standard ever applied in a federal court (until the decision below), and the only legal standard in

22
existence (until the decision below) where failure to elect a preferred candidate has been equated with a burden on participation, independent of an inherently suspect classification. That supporters of the Democratic Party are asking this Court to afford the Party more lenient vote-dilution standard than exists for racial minorities demonstrates just how far afield Plaintiffs’ case is from “familiar” standards.
It also demonstrates just how disruptive a holding in their favor is likely to be. Will racial minorities begin bringing claims under the more favorable “wasted vote” theory rather than Section 2 claims? How will that standard apply in the various other contexts where challengers will no doubt be eager to use it? What will happen when the dictates of Section 2 and the Plaintiffs’ wasted-vote theory come into conflict because, say, a state’s effort to preserve partisan vote efficiency results in splitting a cohesive minority community? Will the constitutional “wasted vote” rule trump the statutory Section 2 framework? And is this all not really a disguised right to proportional representation? Compare Whitford, 218 F. Supp. 3d at 904 (“[T]he EG can be viewed as a measure of the proportion of ‘excess’ seats that a party secured in an election beyond what the party would be expected to obtain with a given share of the vote[.]”) with Bandemer, 478 U.S. at 132 (rejecting constitutional right of proportional representation). There is nothing “familiar” or “well developed” in this brave new world.

23
C. No Familiar and Well-Developed First Amendment Standard Has Been Violated
The district court also purported to rely on cases concerning deprivation of First Amendment rights. See Whitford, 218 F. Supp. 3d at 884 (citing, inter alia, Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). The district court correctly observed that “discriminatory intent also factors into a First Amendment analysis,” id., but it ignored all the other factors that analysis entails—including the required showing of a restraint, or its equivalent, on speech.
First Amendment standards condemn classification on grounds of expression or association only to “the extent [they] compel[] or restrain[] belief and association….” Elrod v. Burns, 427 U.S. 347, 357 (1976); see also Vieth, 541 U.S. at 314–15 (Kennedy, J.) (“The [First Amendment] inquiry…is whether political classifications were used to burden a group’s representational rights.”). That is, the First Amendment condemns “restraints” on expressive and associational rights, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and more subversive forms of retaliation that “would deter a person of ordinary firmness from exercising his First Amendment rights,” see, e.g., Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). For political parties, this involves a threshold showing of a burden on associational rights, such as compelled association, Cal. Democratic Party v. Jones, 530 U.S. 567, 573 (2000), or non-association, Tashjian v. Republican Party of Conn., 479 U.S. 208, 214–17 (1986).

24
Nothing like that is present here. There is no serious contention that Wisconsin has placed any restraint on the speech of the Democratic Party or its members or supporters. No speech or association is even “arguably prohibited.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 303 (1979).
Nor would a person of “ordinary firmness” be deterred from engaging in political speech or association out of fear that the Wisconsin legislature would retaliate by means of a political gerrymander. “Political gerrymanders are not new to the American scene,” Vieth, 541 U.S. at 274 (Plurality Op.), so if they had a deterrent effect on speech or association, someone would have noticed that by now. Political gerrymandering is not similar to a “prolonged and organized campaign of harassment” by law enforcement officers, see, e.g., Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005), police “intimidation tactics,” see, e.g., Keenan v. Tejeda, 290 F.3d 252, 259 (5th Cir. 2002), criminal prosecution, see Bruner v. Baker, 506 F.3d 1021, 1030 (10th Cir. 2007), or adverse employment action, see, e.g., Hill v. City of Pine Bluff, Ark., 696 F.3d 709, 715 (8th Cir. 2012). The target of these deprivations knows when they occur and has good reason to fear them. The effect, if any, of political gerrymandering is de minimis and does not arise to the level of a First Amendment deprivation. See Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006) (finding no deprivation of First Amendment rights where university professor was denied “emeritus” status because the “benefits of such status…carry little or no value and their deprivation therefore may be classified as de minimis”); Mezibov v. Allen, 411 F.3d 712, 721–23 (6th Cir. 2005) (finding no First

25
Amendment deprivation where allegedly defamatory statements by prosecutor would not deter a “defense attorney of ordinary firmness” from continuing to defend his client).
Likewise, this case involves no burden on associational rights in the form of regulation on “parties’ internal processes.” Jones, 530 U.S. at 573. The Wisconsin redistricting scheme has no effect on “the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” Id. at 574. There is neither forced association of any party with individuals or candidates with whom the party would prefer not to associate, id. at 577, nor prevented association of any party with individuals or candidates with whom the party wishes to associate, Tashjian, 479 U.S. at 214.
In relying on these precedents, the district court ignored that this Court has denied relief where no such burden on association is present, including where a primary ballot contained no party information, did not “choose parties’ nominees,” and therefore did not affect the process by which “parties may…nominate candidates.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 453 (2008). There being no impact on the internal affairs of private organizations, no First Amendment burden was imposed.4 Similarly, the Court denied relief in a
4 The Court left open the possibility that, on an as-applied basis, the non-partisan primary system may confuse voters into believing that the primary winners were the party-endorsed candidates. Wash. State Grange, 552 U.S. at 454. But that sort of confusion also has no analogue here.

26
challenge to a closed-caucus system where plaintiffs were not political parties, but potential candidates asserting the right to be endorsed by political parties; the Court observed “[n]one of our cases establishes an individual’s constitutional right to have a ‘fair shot’ at winning the party’s nomination.” N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 205–06 (2008). Indeed, “[w]hat constitutes a ‘fair shot’” is “hardly a manageable constitutional question for judges,” especially where “traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a ‘fair shot’ at party nomination.” Id. at 206.
So too here, Plaintiffs are claiming a right that does not exist, under standards that are not remotely manageable, for an alleged harm that does not in any way impact the internal affairs of any political party. They are not claiming the right to associate with likeminded individuals for the purpose of espousing shared views, but the right to control the government by electing their preferred candidates. That right finds no basis in familiar First Amendment standards, much less manageable ones.
D. Familiar and Well-Developed Standards Do Not Support Relief for Alleged PoliticalGerrymandering Claims in the Current Political Paradigm
Plaintiffs’ failure to meet any “well developed and familiar” constitutional standard, Baker, 369 U.S. at 227, is not a matter of mere legal formalism. Constitutional standards exist to provide a neutral method of distinguishing cases that merit judicial intervention from societal challenges best resolved by

27
other means. See City of Cleburne, 473 U.S. at 442–43. Overexpansion and abstraction of these principles results in judicial overreach into matters that should be left to the political branches of government or other means of resolution. Courts do not exist to take political decisions from political actors—or to throw in with one side or the other in big-money politics. They exist to enforce legal standards.
The fundamental problem with Plaintiffs’ case is that partisan “gerrymandering” of the degree alleged here neither amounts to inequality, nor a restraint on expression or association, nor a burden on the right to vote. First and Fourteenth Amendment standards—at least bearing any resemblance to those neutral standards typically employed—will not be met in a situation anything like the current political paradigm, with two major parties with millions of members and millions of dollars in funding and which are capable of defending their interests in the trenches of day-to-day political tug-of-war. The First and Fourteenth Amendments were not ratified to empower the judiciary to take sides in political jostle between such well-matched foes.
In this regard, the Court’s initial instinct in addressing alleged partisan gerrymandering, expressed in the Davis v. Bandemer, 478 U.S. 109 (1986) plurality, was to limit the judiciary’s role in politicalgerrymandering cases to correcting cognizable representational burdens and otherwise to avoid “embroil[ing] the judiciary in second-guessing what has consistently been referred to as a political task for the legislature.” Id. at 133. The Court, for instance, imposed a presumption that voters “for a losing

28
candidate [are] usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district”; it therefore declined to assume, “without actual proof to the contrary, the candidate elected” from a given district “will entirely ignore the interests” of voters who did not vote for him. Id. at 132. The Court also required political-gerrymandering plaintiffs to show much more than that “an apportionment scheme…makes winning elections more difficult”; it also required a plaintiff to show a denial of a “chance to influence the political process.” Id. at 133; see also Gaffney, 412 U.S. at 754 (stating that constitutional standards would be violated if “political groups have been fenced out of the political process”). Accordingly, Bandemer rejected a claim based on election numbers mirroring those at issue here: Republican candidates won 57 percent of the seats with 48 percent of the vote. Bandemer, 478 U.S. at 134–35.
In the 18 years after Bandemer, the federal judiciary rejected relief under this standard in a long line of cases. See Vieth, 541 U.S. at 179–80 & n.6 (Plurality Op.). The Vieth plurality viewed this evidence as “[e]ighteen years of judicial effort with virtually nothing to show for it.” Id. at 281. But these decisions could also be viewed as showing that the Bandemer standard was correctly construed in a strict and narrow fashion to avoid judicial intervention in run-of-the-mill politics between the Democratic and

29
Republican Parties, which do not need judicial help to maintain their status in American society and politics.5
Even if the Court decides to leave open the possibility of future political-gerrymandering claims, it should not allow the courts to become politicized for the benefit of major parties. Instead, it should make clear that the courthouse doors are only open for another day and another paradigm. One might imagine, for instance, the emergence of one or more “discrete and insular” minority groups, United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938), deprived of any representation for an elongated period. Such a group may be able to show that its lack of representation amounts to a bar on political participation, both because the redistricting scheme prevents any representation and because the representatives elected by others are hostile to the group’s interests. One might also imagine a scenario involving a party that, through advanced technology and data, managed to divide the populace so thoroughly and precisely as to obtain complete or near complete control of the government. That standard would not be met where a party with 48% of the vote obtained 65% of the seats, but rather where it obtained 100% or, perhaps, 96% of the seats. In that instance, the other party would be “fenced out” of participation,
5 To be clear, RSLC agrees with the State Defendants that the Bandemer test is no longer in force and does not advocate reviving it. RSLC observes, however, that, if the Court declines to find all political-gerrymandering claims non-justiciable, it should impose a standard at least as, if not more, rigorous than the Bandemer standard. The district court’s application of a less stringent standard was inexplicable.

30
Gaffney, 412 U.S. at 754, not merely placed in the minority.
Whether that would ever occur and the precise contours of relief are a matter of speculation and need not be resolved in this case. But it is towards this question—under what different scenario a political gerrymandering claim may arise—that any continued open door for relief should be oriented. The Court should not encourage, as Plaintiffs here and in other cases appear to believe it has, a race to identify a magic social-science technique whereby alleged gerrymanders of the degree and kind already held to be nonactionable are somehow rendered actionable. The Court should not incentivize a race to see which major Party can first arrive at a “manageable” political-science standard that favors its interests, thereby baking a partisan tilt into the U.S. constitution and warping the judicial process into a political one.
What’s more, the social-science techniques Plaintiffs have utilized here, and those that are foreseeable in future cases if the Court incentivizes further innovation, address, not equal-protection and freespeech concerns, but the constitutional “guarantee” to a “Republican Form of Government.” U.S. Const. art. IV § 4. At base, Plaintiffs are alleging that one political party has the right to translate votes for its candidates into seats as easily as another. As already stated, this has little if anything to do with First or Fourteenth Amendment standards, but rather seeks to impose “standards for fairness for a representative system,” which is the province of the Guarantee Clause. Colegrove v. Green, 328 U.S. 549, 553 (1946). While in “most of the cases” addressing Guarantee

31
Clause claims this Court “has found the claims presented to be nonjusticiable,” New York v. United States, 505 U.S. 144, 184 (1992), plaintiffs should not be allowed to circumvent the problems raised under that Clause merely by re-styling a Guarantee Clause claim as an equal-protection or free-speech claim. If a bird quacks like a duck and waddles like a duck, it’s a duck, and if a claim alleges that a system of government is not “accountable to the local electorate,” id. at 186, it’s a Guarantee Clause claim.
II. Departure from Familiar and Well-Developed Standards Is Not Warranted Because the Alleged Harms of Gerrymandering Are Not Substantiated
For reasons stated above, the district court’s decision is not defensible under “familiar and well developed” constitutional standards. But, even if the Court were willing to innovate new standards, there would be no public-policy purpose in doing so, because the purported policy basis for restricting gerrymandering—that gerrymandered districts produce polarized government—is unfounded.
The Court should not be fooled by a canard common to partisan-redistricting rhetoric: apportionment plans, even if they are gerrymandered for political reasons, do not cause political polarization. Though “elegant in description and prescription,” this theory has been debunked. Nolan McCarty, Keith T. Poole & Howard Rosenthal, Does Gerrymandering Cause Polarization?, 53 Am. J. of Pol. Sci. 666, 667 (2009); see also, James E. Campbell, Polarized: Making Sense of a Divided America (2016); Nolan McCarty, Keith T. Poole & Howard Rosenthal, Polarized America: The Dance of

32
Ideology and Unequal Riches (2016); Thomas E. Mann & Bruce E. Cain, Party Lines: Competition, Partisanship, and Congressional Redistricting (2005). A powerful illustration of this theory’s failure is that it does not account for the increased polarization of the United States Senate or among partisans in the electorate. McCarty, supra, at 61–62 (“The strongest argument against overemphasizing the politics of apportionment is the fact that the U.S. Senate (which of course is never redistricted) has endured an almost identical history of polarization.”).
Simply put, other things—a lot of other things—are at play. Campbell, supra, at 147 (“Party polarization is a much broader phenomenon than gerrymandered redistricting could possibly explain.”). First, “[t]he evidence indicates that Americans are highly polarized, that they have been so since the late 1960s, and that they have become significantly more so in recent decades,” and, in fact, the “increased polarization of the parties in government lagged behind the greater polarization in the public.” Campbell, supra, at 222. Second, “[p]arty polarization in Congress and many state legislatures has been on the rise since the 1980s, and it has reached levels comparable to those in the late nineteenth and early twentieth centuries. No serious academic analyses attribute that polarization solely or even primarily to redistricting. There are many other plausible causes….” Mann, supra, at 20.
A host of other geographic and historic shifts have been found to generate political polarization in the United States. These include the demise of the oneparty South, increased geographical self-sorting on political and social attitudes, differences in how

33
Republican and Democratic legislative members would represent the same district, and resulting shifts in legislative agendas, strategies of party leadership, and ideological and organizational orientations. McCarty, supra, at 678–79. Political scientists have run the numbers, and they do not support the notion that partisan redistricting causes political polarization.
Plaintiffs claim redistricting has stripped Wisconsin politics of competition and created an “exceptionally large and durable” advantage for Republicans and that this “sharp decline in the number of competitive seats demonstrates that Act 43 was intended to give Republicans a durable” advantage. Mot. to Affirm at 1, 8 (emphasis added). But a decline in the number of competitive seats cannot be blamed on reapportionment, let alone demonstrate the direct intent of any map drawer. Besides, predictions of durability are not always correct. For example, the supposed permanent majority of the Indiana plan adjudicated in Bandemer did not turn out to be permanent because, by the end of the decade, Democrats took a majority of the House and only failed to take a majority of the Senate by two seats. See Council of State Governments, The Legislators: Number, Terms and Party Affiliations, 1937-2003, in The Book of the States Volumes 2-35 (2004); see also Vieth, 541 U.S. at 287 n.8 (describing how, five days after court held judicial system to be unconstitutionally partisan, all the supposedly favored judicial candidates were defeated).
In fact, a gerrymandered plan does not necessarily generate safe seats for the party that drew it because maximizing that party’s voting strength typically

34
requires spreading its perceived supporters as thin as possible across districts. That strategy can backfire. In an effort to maximize the number of seats it will win in future elections, a party in charge of redistricting will often choose to create as many districts as possible where those voters it perceives to be its supporters constitute the majority and to “pack” the perceived supporters of the minority party into as few districts as possible. But this process can lead to more electoral security for the minority party than for the majority party because members of the majority party are spread thin and may fail to elect their preferred candidates, whereas representation for members of the minority party is secured. See McCarty, supra, at 667 (discussing the “‘dummymander’” which describes “those situations when the majority spreads its voters so thin that it actually loses seats”). Whether or not the majority party is successful in “entrenching” its power, the minority party is guaranteed to have an embedded voice in the government. Federal courts should not assume that this voice counts for nothing.
In other words, the effects of partisan motives in redistricting are as complicated and unpredictable as the redistricting process itself, and the Court should not enmesh itself in the process based on a simplistic notion that there is some readily identifiable “harm” to the democratic process that is easy to remedy. Instead, the federal courts should become involved in redistricting only to exercise their competency in enforcing “familiar” constitutional and statutory standards.

35
Conclusion
For these reasons, and those stated in the State Defendants’ briefing, the Court should reverse the decision below.
Respectfully submitted,
Efrem M. Braden Counsel of Record
Katherine L. McKnight Richard B. Raile Baker & Hostetler LLP 1050 Connecticut Avenue NW, Suite 1100 Washington, DC 20036 (202) 861-1504 mbraden@bakerlaw.com kmcknight@bakerlaw.com rraile@bakerlaw.com
Matthew Raymer Vice President and General Counsel Republican State Leadership Committee 1201 F Street, NW, Suite 675 Washington, DC 20004 (202) 448-5160 mraymer@rslc.gop
Counsel for Amicus Curiae

 
 No. 16-1161
In The
Supreme Court of the United States

BEVERLY R. GILL, ET AL.,
Appellants,
v. WILLIAM WHITFORD, ET AL.,
Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICUS CURIAE THE NATIONAL REPUBLICAN CONGRESSIONAL
COMMITTEE IN SUPPORT OF APPELLANTS

Jason Torchinsky Counsel of Record J. Michael Bayes Shawn Toomey Sheehy Phillip M. Gordon Holtzman Vogel
Josefiak Torchinsky PLLC 45 North Hill Drive Suite 100 Warrenton, VA 20186 (540) 341-8808 (540) 341-8809 Jtorchinsky@hvjt.law Counsel for Amicus Curiae

P. Christopher Winkelman National Republican Congressional Committee 320 First Street, SE Washington, DC 20003 202-479-7000 202-484-2543
August 4, 2017

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................iii
STATEMENT OF INTEREST OF THE AMICUS CURIAE .............................................. 1
SUMMARY OF ARGUMENT..................................... 2
I. The “Efficiency Gap” is a Deeply Flawed Methodology that Should Not Be a Component of Any Judicially Manageable Standard. ....................................... 3
II. The “Efficiency Gap” Does Not Account for the Natural Packing Effect of Political Geography. ........................................... 6
III. The “Efficiency Gap” Requires Bizarrely Shaped Districts of The Kind That This Court Previously Rejected. ................................. 9
A. Examples from Illinois and Maryland Demonstrate the Efforts Undertaken to Account for the Democratic Party’s Political Geography. ............................................... 10
B. Wisconsin’s Act 43 Districts Conform to Traditional Districting Criteria. .................................................... 19

ii
C. The EG, When Combined with Current Political Geography, Mathematically Forces Resettlement of Voters into NonSimilar Voting Communities................... 28
D. The “Efficiency Gap” Generally Fails to Recognize Democratic Gerrymanders. ......................................... 36
E. Appellees’ “Efficiency Gap” Is Biased Towards Democrats and Is Likely to Cause Constitutional Conflict with Section Two of The Voting Rights Act. .................................... 39
IV. Voters’ Preferences Are Not Monolithic and Unchanging, Contrary to the Assumptions of the “Efficiency Gap” ............... 41
A. Wisconsin Voters, Much Like Voters in the Rest of the United States, are not Monolithic. ...................... 50
V. Appellees Reliance on New, Yet Unpublished, Research is Misguided Because It Mischaracterizes Amicus’ Arguments and Ignores the Methodological Problems of the Research Itself. ................................................................. 56
CONCLUSION .......................................................... 60

iii
TABLE OF AUTHORITIES CASES
Beer v. United States, 425 U.S. 130 (1976) .............. 41 Bush v. Vera, 517 U.S. 952 (1996) .................... passim Colegrove v. Green, 328 U.S. 549 (1946)................... 40 Comm. for a Fair & Balanced Map v. Ill. State
Bd. of Elections, 835 F. Supp. 2d 563 (N.D. Ill. 2011) ...................................... 11, 12, 38 Cooper v. Harris, 137 S. Ct. 1455 (2017) .................. 41 Davis v. Bandemer, 478 U.S. 109 (1986) ...... 20, 27, 56 Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011) .................................................... 14, 15 Gaffney v Cummings, 412 U.S. 735 (1973) ........ 56, 58 Gomillion v. Lightfoot, 364 U.S. 339 (1960) . 18, 20, 28 Hunt v. Cromartie, 526 U.S. 541 (1999) ............. 20, 27 Karcher v. Daggett, 462 U.S. 725 (1983) ............ 20, 57 League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399............................... 55, 60 League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 369 (Fla. 2015) ........................ 18

iv
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (denying motion to dismiss) (after remand from this Court in Shapiro v. McManus, 136 S.Ct. at 456 (2015)).............. 17
Shaw v. Reno, 509 U.S. 630 (1993)................... passim
Vieth v. Jubelirer, 541 U.S. 267 (2004) .... 7, 40, 42, 60
Whitford v. Gill, 218 F. Supp. 3d 837, 947 (W.D. Wis. 2016) ....................................... passim
OTHER AUTHORITIES
Andrew Mercer, Claudia Deane, & Kyley McGeeney, Why 2016 Election Polls Missed Their Mark, Pew Research Center (Nov. 9, 2016)........................................ 42
Ballotpedia, Georgia’s 6th Congressional District, https://ballotpedia.org/Georgia%27s_6th_ Congressional_District (last visited July 21, 2017)............................................................. 47
Ballotpedia, Governor of Wisconsin, https://ballotpedia.org/Governor_of_Wisc onsin (last visited July 25, 2017)...................... 51
Ballotpedia, New Jersey’s 5th Congressional District, https://ballotpedia.org/New_Jersey%27s_ 5th_Congressional_District (last visited July 26, 2017) .............................................. 48, 49

v
Barone & Ujifusa, Almanac of American Politics 1996................................................ 24, 25
Chris Tausanovitch & Christopher Warshaw, Representation in Municipal Government, Am. Pol. Sci. Rev. 605, 609 fig. 1............................................................. 29, 30
Courtney Kueppers, Trump Becomes First Republican Presidential Candidate Since 1984 to Win Wisconsin, Wisconsin Public Radio (Nov. 8, 2016) ................................... 50, 58
David Nir, Daily Kos Elections’ Presidential Results by Congressional District for the 2016 and 2012 Elections, Daily Kos, https://www.dailykos.com/stories/2012/11 /19/1163009/-Daily-Kos-Electionspresidential-results-by-congressionaldistrict-for-the-2012-2008-elections (last visited July, 31 2017) .................................. 49, 55
Election 2016, Maryland Results, N.Y. Times (Aug. 1, 2017, 11:22 AM) .................................. 17
Expert Report of Sean P. Trende at ¶ 103, Common Cause v. Rucho, Nos. 16-1026, 2017 U.S. Dist. LEXIS 30242 (M.D.N.C. 2017).......................................................... passim
Geoffrey Skelley, Just How Many Obama 2012-Trump 2016 Voters Were There?, Rasmussen Reports (June 01, 2017) ............................... 43, 44, 45, 46

vi
Hope Kirwan, Ron Kind Running Unopposed For Congressional Seat, Wisconsin Public Radio (Nov. 3, 2016, 9:40 AM) .......................... 55
Jessica Taylor, The Counties that Flipped from Obama to Trump, in 3 Charts, National Public Radio (Nov. 15, 2016, 12:26 PM) .......................................................... 44
Jowei Chen & David Cottrell, Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate the effect of Gerrymandering in the U.S. House, 44 Electoral Stud. 329, 336 (2016) ........................ 40
Jowei Chen & Jonathan Rodden, Don’t Blame the Maps, N.Y. Times (Jan. 24, 2014) ................................ 10, 11, 34, 38
Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. of Pol. Sci. 239, 245 (2013) .................................................................. 8
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, Election L. J.: Rules, Pol., Pol’y (June 2017) ..................... 57, 58
Kyle Bentle, In Illinois, Chicago-area Clinton Votes Overtook Rest of State, Chi. Trib. (Nov. 9, 2016) .................................................... 13

vii
Malia Jones & Caitlin McKown, How and Where Trump Won Wisconsin in 2016, WisCONTEXT (Nov. 21, 2016, 3:00 PM) . 32, 33
Mark Fahey & Nicholas Wells, The Places That Flipped and Gave the Country to Trump, CNBC, http://www.cnbc.com/heres-a-map-of-theus-counties-that-flipped-to-trump-fromdemocrats/ ......................................................... 44
Md. Dept. of Planning, Maryland’s 2011 Congressional Districts, available at http://planning.maryland.gov/PDF/Redis tricting/2010maps/Cong/Statewide.pdf ........... 15
Mark Brown, Illinois Gerrymandering Doesn’t Measure Up to Wisconsin, Chi. Sun Times (06/19/2017)................................. 10
Micah Cohen, Growth of Suburban D.C. Is Felt Politically in Maryland, N.Y. Times, FiveThirtyEight (Sept. 27, 2012, 8:48 PM) .................................................................... 16
Michael Kang, The Bright Side of Partisan Gerrymandering, 14 Cornell J.L. & Pub. Pol'y 443, 464 (2005)......................................... 58
Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 853 (2015).................................................... 37, 47

viii
Paul L. McKaskle, Of Wasted Votes and No Influence: An Essay on Voting Systems in the United States, 35 Hous. L. Rev. 1119, 1144-45 (1998) ............................................ 33, 34
Political Polarization in the American Public: Section 3: Political Polarization and Personal Life, Pew Research Center (June 12, 2014) ................................................. 31
Real Clear Politics, Polls: Georgia 6th District Run-Off Election – Handel vs. Ossoff (June 20, 2017) .................................................. 48
Real Clear Politics, Polls, Wisconsin: Trump vs. Clinton, https://www.realclearpolitics.com/epolls/ 2016/president/wi/wisconsin_trump_vs_c linton-5659.html#polls (last visited July 17, 2017)............................................................ 58
Saturday Night Live: The Bubble (NBC television broadcast November 19, 2016) .......... 7
Simone Pathe, It’s Election Day in the Most Expensive House Race Ever, Roll Call (June 20, 2017 5:04 AM)................................... 48
US Election Atlas, 1992 Presidential Election Results - Wisconsin, http://uselectionatlas.org/RESULTS/stat e.php?year=1992&fips=55&f=0&off=0&e lect=0&minper=0 (last visited July 14, 2017).................................................................. 59

ix
USGS, The National Map Small Scale: Illinois, Congressional Districts – 113th Congress, available at https://nationalmap.gov/small_scale/prin table/congress.html........................................... 35
Wis. Elections Comm., 2014 Fall General Election Results, Ward-by-Ward Election Results for All Offices (2014) ................... 8, 9, 54
Wis. Elections Comm., 2016 Fall General Election Results, Ward by Ward Original and Recount President of the United States.xlsx (2016) ............................................... 8
Wis. Legislative Tech. Serv. Bureau, Statewide Congressional Maps, available at http://legis.wisconsin.gov/ltsb/ gis/maps/ ................................................... passim

1
STATEMENT OF INTEREST OF THE AMICUS CURIAE
The National Republican Congressional Committee (“NRCC”) is the principal national political party committee focused on electing Republican candidates to the United States House of Representatives. Members of the NRCC include all incumbent Republican House Members. A Chairman and the Executive Committee, composed of the Republican House Members, govern the NRCC.1 Most of the NRCC’s Members—excluding only those from states with only one congressional district— each represent a single congressional district whose boundaries are re-established after each decennial census.2
Consequently, a ruling from this Court will directly impact amicus.
1 No party’s counsel authored any part of this brief. No person other than the amicus curiae made a monetary contribution intended to fund the preparation or submission of this brief. On July 13 and July 17, 2017, counsel for Appellants and Appellees, respectively, provided consent to all timely filed amicus briefs. The parties’ letters consenting to the filing of amicus briefs have been filed with the Clerk. 2 The RNC and NRCC jointly filed a brief in this case at the jurisdictional statement stage, and the NRCC hereby readopts that brief.

2
SUMMARY OF ARGUMENT
The so-called ‘Efficiency Gap’ is the latest in a series of quantitative measures put forward in order to attempt to convince Federal and State courts that the ‘problem’ of ‘political gerrymandering’ can be subjected to a manageable, mathematical standard. The ‘Efficiency Gap’ is in reality nothing more than an attempt to impose a state-wide proportional vote requirement for legislative bodies on the basis of statewide vote for candidates in otherwise individualized district by district contests who affiliate with a particular political party.
This proposed ‘Efficiency Gap’ measure, along with every other quantitative method so far presented, fails to prove a Constitutional and workable test.
First, the ‘Efficiency Gap’ fails because it does not account for natural political geography. The reality of population distribution in the United States today is that voters who support Democratic candidates tend to live in more densely populated areas. This presents a challenge to the Democratic Party as it seeks to win elections in districts drawn in accordance with traditional redistricting principles – starting with equal population and compactness. We will illustrate this problem by further examining the political geography of Wisconsin and other states.
Second, the remedy to meet the ‘Efficiency Gap’ test requires bizarrely shaped districts that carve up certain jurisdictions and pair far flung and

3
disparate communities into the same representative districts. In this case, the Wisconsin districts challenged complied with all of the traditional districting criteria and with the requirements of the Wisconsin Constitution. We will present this Court with examples of bizarrely shaped maps adopted by Democrat politicians attempting to preserve political power while eschewing traditional redistricting principles and carving up communities to create districts that they hope will achieve their political goals. While this choice was made in Illinois and Maryland, this Court should not impose such conditions as a national and constitutional requirement.
Third, the ‘Efficiency Gap’ assumes that voters are monolithic and unchanging in the candidates they support, and will only support candidates of a particular political party. This is simply not the case in the United States. We will present this Court with numerous examples of cases where voters changed candidate of the party they supported both from election cycle to election cycle, and even within the same election cycle.
Finally, the appellee’s attempts to introduce new research to defend their case fails because it mischaracterizes arguments and ignores the other methodological problems identified herein.
I. The “Efficiency Gap” is a Deeply Flawed Methodology that Should Not Be a Component of Any Judicially Manageable Standard.

4
“[T]he court... is being asked to elevate the efficiency gap theory from the annals of a single nonpeer-reviewed law review article to the linchpin of constitutional elections jurisprudence. This request is made despite the efficiency gap’s significant... limitations....” Whitford v. Gill, 218 F. Supp. 3d 837, 947 (W.D. Wis. 2016) (Griesbach, J., dissenting). In order to show these limitations, amicus has previously argued that the EG is a poor choice for a statistical model on multiple grounds. See Brief of Amici Curiae the Republican Nat’l Comm. & the Nat’l Republican Cong. Comm. in Support of Appellants at 3-8, Whitford v. Gill, (2017) (No. 161161) (hereinafter Jurisdictional Brief). First, the EG treats certain votes as “wasted” if they do not assist a candidate’s victory.3 Id. Second, the EG does not take into consideration the political geography of the United States as a whole and urban areas specifically. Id. Third, the EG assumes that proportional representation is constitutionally required. Id at 27-30.
Unsurprisingly there is an additional area where the efficiency gap fails. The math of the EG calculation can itself lead to some very strange
3 As amicus stated in the jurisdictional brief, and it bears repeating here: “Labeling any vote as a ‘wasted’ vote is anathema to any conception of a representative form of government... no vote should ever be considered by the courts or by the people as ‘wasted.’ Every vote and every voter in every precinct plays a vital role in our system of government.” See Jurisdictional Brief at 3-4 n.2.

5
results.4 See Whitford, 218 F. Supp. 3d at 957 (Griesbach, J., dissenting) (noting that ultimately the logic of the efficiency gap is circular). For instance, imagine Scenario 1, which is a heavily gerrymandered state (“State A”) where the “packing” and “cracking” of voters was extreme. This hypothetical state has 4 districts. District 1 and 2 has a ratio of Democrats to Republicans of 70% to 30%. Districts 3 and 4 has a ratio of Democrats to Republicans of 30% to 70%. Assume that the vote total matched those same percentages. The result would be an EG of 0. Therefore, according to the Authors of the EG, there is no evidence in State A of a partisan gerrymander. Cf. id. at 959 (showing that a 75%-25% district results in no efficiency gap because the “wasted” votes cancel each other out.).
Now, imagine Scenario 2. Scenario 2 is a different state (“State B”) and has been redistricted to have a nearly equal 50/50 split between Democrats and Republicans. Assume the election results are the following: All districts are closely contested but because of a variety of factors (none of which are factored in by the EG) the Democrats sweep every contest, winning by no more than 6% in any district. This election would result in an extremely large EG for State B even though each candidate was
4 As a reminder to the Court, the mathematical formula can be expressed in the following way, EG = Wr/n - Wd/n, where W = “wasted” votes, d and r = individual political parties, and n = total number of votes in the election. See Whitford, 218 F. Supp. 3d at 904 n.276.

6
competitive in each district. The actual EG calculation for Scenario 2 would be as follows: District 1 had a vote of 53% Democrat to 47% Republican; District 2 and 3 each had a vote of 52% Democrat to 48% Republican; and District 4 was the closest contest with a vote of 51% Democrat to 49% Republican. The total EG of this very closely contested election is .47 or 47%. If Appellees succeed, then State A, with completely non-competitive elections, is a non-partisan redistricting and State B is an extremely aggressive Democratic partisan gerrymander that should be reviewed by the courts and found unconstitutional. This result is, of course, absurd. See id. at 956 (“[T]he efficiency gap is merely a somewhat more sophisticated way of saying that [a political party] won a large number of close elections.”); see also id. (“[S]imply stating that there is a high gap does not tell us anything about gerrymandering... even if partisan intent is present; it simply means one side won significantly more close elections than the other.”).
II. The “Efficiency Gap” Does Not Account for the Natural Packing Effect of Political Geography.
In its Jurisdictional Brief, the RNC and NRCC argued that the political geography of the United States in general, and Wisconsin in particular, has a pronounced effect on the efficiency gap. See Jurisdictional Brief at 3-12. This is a phenomenon that the majority and dissent below and this Court have noted in prior cases. Whitford, 218 F. Supp. 3d at 919 (“Wisconsin’s political geography affords Republicans a modest natural advantage in

7
districting.”); see also Vieth v. Jubelirer, 541 U.S. 267, 290 (2004) (“[P]olitical groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a ‘natural’ packing effect.”); id. at 309 (Kennedy, J., concurring) (citing a study on political geography stating that “[c]ompactness standards help Republicans because Democrats are more likely to live in high density regions.”).5 Amicus further argued that the natural result of the EG as a justiciable standard is picking political winners and losers. See Jurisdictional Brief at 6.
Amicus has also argued that Republicans have a natural advantage in redistricting due to political geography. See Jurisdictional Brief at 8-14. This advantage is due to many factors. Id. First, Democrats are highly concentrated in cities while Republicans tend to be disbursed throughout more rural and exurban areas. Id. at 9-10; see also infra Figures 17, 18, 19, and 20. This is a phenomenon that repeats itself in Wisconsin. Jurisdictional Brief at 11. By using examples from other states, amicus argued that maintaining traditional districting criteria coupled with Democratic clustering in cities results in additional Republican seats. Id at 12-14.
5 This natural clustering effect is so widely known that it is accepted as fact in popular culture. See generally Saturday Night Live: The Bubble (NBC television broadcast November 19, 2016) (available at http://www.nbc.com/saturday-night-live/video/thebubble/3428577?snl=1) (comically describing Brooklyn New York as a progressive utopia of “likeminded freethinkers, and no one else”).

8

By way of example, amicus showed that, in Florida for the Bush-Gore presidential election, “Bush received over 80% of the vote in only 80 precincts, Gore received over 80% [of the vote] in almost 800 precincts.” Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. of Pol. Sci. 239, 245 (2013). This same type of phenomenon exists at the ward level in Wisconsin.

For example, in the 2016 presidential election

in Wisconsin, President Trump received 80% or more

of the vote in 43 wards, Secretary Clinton received

80% or more of the vote in 260 wards. Wis. Elections

Comm., 2016 Fall General Election Results, Ward by

Ward Original and Recount President of the United

States.xlsx

(2016),

available

at

http://elections.wi.gov/elections-

voting/results/2016/fall-general. This is not just

limited to presidential elections. In the 2014

Wisconsin governor’s race, Republican Scott Walker

received 80% or more of the vote in 65 wards. Wis.

Elections Comm., 2014 Fall General Election

Results, Ward-by-Ward Election Results for All

Offices

(2014),

available

at

http://elections.wi.gov/elections-

voting/results/2014/fall-general. The Democratic

challenger received 80% or more of the vote in 248

wards. Id. Finally, there is the 2014 Secretary of

State race in which Wisconsin elected a Democrat for

Secretary of State but Republicans for all other

statewide offices. See infra Table 5. The Republican

Secretary of State challenger received 80% or more

of the vote in 28 wards, compared to Democrat Doug

La Follette receiving 80% or more of the vote in 257

9
wards. Wis. Elections Comm., 2014 Fall General Election Results, Ward-by-Ward Election Results for All Offices (2014). It is also interesting to note that Democratic candidate for Secretary of State, Doug La Follette, outperformed all other Democratic challengers in the 2014 statewide election. See infra Table 1.
Table 1: Data retrieved from Wis. Elections Comm., 2014 Fall General Election Results, Statewide Summary Election Results for All Offices (2014), available at http://elections.wi.gov/electionsvoting/results/2014/fall-general.
There are more than 3,000 wards in Wisconsin. The data shows that, while Democratic candidate support is geographically concentrated, Republican support is geographically dispersed. Taken together, this is simply more evidence that Democrats are densely clustered while Republicans are spread out geographically.
III. The “Efficiency Gap” Requires Bizarrely Shaped Districts of The Kind That This Court Previously Rejected.

10

Amicus previously argued that requiring states to apply the EG to their redistricting methodology would result in bizarrely shaped maps that this Court has attempted to avoid. See Jurisdictional Brief at 25-27. Amicus further argued that this Court should refuse to adopt the EG as it will only result in the Court choosing political winners and losers due to political geography. Id at 27.

A. Examples from Illinois and Maryland Demonstrate the Efforts Undertaken to Account for the Democratic Party’s Political Geography.

Illinois has been cited as a partisan

gerrymander. See Jowei Chen & Jonathan Rodden,

Don’t Blame the Maps, N.Y. Times (Jan. 24, 2014),

https://www.nytimes.com/2014/01/26/opinion/sunday/

its-the-geography-stupid.html (hereinafter Chen,

Don’t Blame the Maps); see also Expert Report of

Sean P. Trende at ¶ 103, Common Cause v. Rucho,

Nos. 16-1026, 16-1164, 2017 U.S. Dist. LEXIS 30242

(M.D.N.C. 2017) ECF No. 73-1 (hereinafter Trende,

Expert Report) (stating that Democrats sought to

eliminate 5 Republican seats). One of the authors of

the EG has stated that Illinois has “quite small

efficiency gaps....” Mark Brown, Illinois

Gerrymandering Doesn’t Measure Up to Wisconsin,

Chi.

Sun

Times

(06/19/2017),

http://chicago.suntimes.com/chicago-politics/illinois-

gerrymandering-doesnt-measure-up-to-wisconsin/

(quoting Nicholas Stephanopoulos, stating that the

EG for Illinois is “below 5 percent” and “they

average out to very close to zero”); see also Trende,

11
Expert Report at ¶ 103 (noting that in some years the current Illinois redistricting plan has seen EG’s that indicate the plan favors Republicans.). Comparing the Illinois congressional map to the Wisconsin map, it appears obvious that the reason the efficiency gap is so low in Illinois is because of the Democratic partisan gerrymander not despite it. See infra Figures 1, 7, & 21.
“By artfully dividing up Chicago into piesliced districts extending from Lake Michigan into the suburbs, the Illinois Democrats have done better for themselves than the outcome of... nonpartisan simulations.” See Chen, Don’t Blame the Maps. Furthermore, population alone does not force Chicago to be divided up like slices of pizza. A map can be, and has been, drawn that complies with traditional districting principals more so than the current Illinois map. See Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563, app. C at 596 & app. E at 598. (N.D. Ill. Dec. 15, 2011) (three-judge court); see also infra Figure 1.

12
Figure 1: This figure shows a side-by-side comparison of the Democratic Party gerrymander of Congressional districts in the Chicago area. The figure on the left shows Illinois’ adopted Congressional Districts, which takes great pains to extruded pancake-like shapes reach from the center of Chicago into the suburbs and exurbs. This is in obvious contrast to the map presented by Plaintiffs in Illinois challenging the alleged partisan gerrymander. The “Fair Congressional Map” more faithfully follows traditional districting principles. Pls.’ Mot. for Prelim. Inj. & Expedited Disc. at 26, Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563 (N.D. Ill. Dec. 15, 2011) (No. 1:11-cv-05065) ECF No. 24.
The same geographic concentrations that are present in other states are present in Illinois, as represented in the following graphic representations of votes received by the Democratic candidate for President in 2016:

13
Figure 2: Kyle Bentle, In Illinois, Chicago-area Clinton Votes Overtook Rest of State, Chi. Trib. (Nov. 9, 2016).

14
http://www.chicagotribune.com/news/data/ct-illinoispresident-results-20161108-htmlstory.html.
When the maps from figures 1 and 2 are compared, the reason for the tortured shapes in the enacted Illinois congressional map becomes clear. The Illinois map did exactly what the Plaintiffs in Wisconsin are asking this Court to impose as a constitutional requirement. See supra Figures 1 & 2. Essentially, these maps pancaked the Congressional Districts in northeastern Illinois to minimize the impact of the geographic concentration of regular Democratic Party voters across as many Congressional districts as possible.
Furthermore, in 2011, Maryland’s Democrat controlled legislature adopted a similarly bizarrely shaped map. In the course of rejecting a political gerrymandering claim in Fletcher v. Lamone, Judge Titus’ concurring opinion declared that the intent of Maryland’s enacted congressional map was to disadvantage the incumbent Republican legislator. Fletcher v. Lamone, 831 F. Supp. 2d. 887, 905-06 (D. Md. 2011) (Titus, J., concurring). Judge Titus noted that the enacted congressional map added “several hundred thousand residents of far more densely populated Montgomery County... to the district[]” shattering communities of interest. See id. at 906 (emphasis added). Suburban and highly Democratic Montgomery County differs from rural Garrett County in that Garret County residents farm, mine, and work in paper mills, while Montgomery County

15
residents “do not know what a coal mine or paper mill even looks like.” Id. Judge Titus further explained, “The shape of congressional district three is almost impossible to describe. It includes a snippet of Baltimore City, portions of Baltimore County, a small segment of Montgomery County, a large chunk of Anne Arundel County, and an isolated snippet that includes Annapolis that is detached from the rest of the district and can only be reached by water.” Id.

Figure 3: Md. Dept. of Planning, Maryland’s 2011

Congressional

Districts,

available

at

http://planning.maryland.gov/PDF/Redistricting/201

0maps/Cong/Statewide.pdf.

Similar to Illinois, the far more densely populated Montgomery County has a substantially different partisan composition than the rural

16 Garrett County, the western-most county in Maryland.
Figure 4: This map reflects the 2008 Presidential vote margins by county. Micah Cohen, Growth of Suburban D.C. Is Felt Politically in Maryland, N.Y. Times, FiveThirtyEight (Sept. 27, 2012, 8:48 PM), https://fivethirtyeight.blogs.nytimes.com/2012/09/27/ growth-of-suburban-d-c-is-felt-politically-inmaryland/?mcubz=0.

17
Figure 5: This map reflects the 2016 Presidential vote margins by county. Election 2016, Maryland Results, N.Y. Times (Aug. 1, 2017, 11:22 AM), https://www.nytimes.com/elections/results/maryland ?mcubz=0.
The Maryland congressional map is currently the subject of pending litigation in Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (denying motion to dismiss) (after remand from this Court in Shapiro v. McManus, 136 S.Ct. at 456 (2015)).
The maps in Maryland are yet another illustration of the types of maps and bizarrely shaped districts required for the Democratic Party to deal with their political geography problem when trying to apply traditional districting criteria – particularly the equal population and compactness requirements.
Wisconsin’s General Assembly and

18
congressional district maps by comparison lack any of the snakes, “sacred Mayan bird[s],” “Rorschach ink-blot test[s],” and “uncouth twenty-eight-sided figure[s]” that the Court has identified in other maps. See Shaw v. Reno, 509 U.S. 630, 635, 658 (1993); Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960); Bush v. Vera, 517 U.S. 952, 974 (1996) (O’Connor, J., concurring); see also Figures 9-16; compare Whitford, 218 F. Supp. 3d at 939-40 (Griesbach, J., dissenting) (explaining that Appellees made no attempt to show that districting lines because Act 43 does not violate traditional districting criteria); with Figures 6-8.6
6 This is not to suggest that the states and Congress are powerless to devise limitations on the drafters of maps. States and Congress are free, with certain limitations, to develop and impose redistricting criteria. Congress has so far chosen not to exercise this power for congressional districts beyond requiring the use of single-member districts for seats in the U.S. House of Representatives and the Voting Rights Act. However, several states have imposed enforceable criteria pursuant to state constitutional or legislative authority. See, e.g., League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 369 (Fla. 2015) (describing Florida’s 2010 constitutional amendment that prohibits the drawing of any district with the intent to favor or disfavor a political party or incumbent).

19
Figure 6: Wis. Legislative Tech. Serv. Bureau, Statewide Congressional Maps, available at http://legis.wisconsin.gov/ltsb/gis/maps/.
B. Wisconsin’s Act 43 Districts Conform to Traditional Districting Criteria. Compactness, contiguity, respect for
jurisdictional boundaries, and incumbent protection

20
have all been identified as traditional districting criteria by the courts. See, e.g., Karcher v. Daggett, 462 U.S. 725, 740 (1983). Act 43 meets all of the typical traditional districting criteria that are used as evidence to determine if specific districts are impermissible gerrymanders. See Whitford, 218 F. Supp. 3d at 940 (Griesbach, J., dissenting) (“Act 43 does not violate any of the redistricting principles that traditionally govern the districting process....”). Furthermore, Appellees did not even argue that Act 43’s districts violated traditional districting criteria. Id. (“[Plaintiffs] conced[e] that the districts drawn by Act 43 are sufficiently compact, contiguous and respectful of political boundaries.”).
Compare Figures 6, 7 and 8 to maps of districts more traditionally identified as gerrymanders. See Vera, 517 U.S. at 987 app. A, 988 app. B, 989 app. C; Shaw, 509 U.S. at 635, 658 app.; Davis v. Bandemer, 478 U.S. 109, 180 n. 21, 183 n. 24 (1986); Hunt v. Cromartie, 526 U.S. 541, at 543, app. (1999); Gomillion, 364 U.S. at 340, app.; compare infra Figures 9-16; with supra Figure 6; and infra Figures 7-8. It is hard not to notice a significant difference between these various maps. The reasons shapes are important is not just visual preference but also so that legislators may identify potential gerrymanders. See Whitford, 218 F. Supp. 3d at 94445 (Griesbach, J., dissenting). “[M]apmakers (and their critics) will immediately be able to detect when their efforts have produced unusual and suspicious visual results-dragons in flight, salamanders, sick chickens, or any other of the flamboyantly monikered chimeras that creative cartographers have conjured up over the decades.” Id.

21
Figure 7: Wis. Legislative Tech. Serv. Bureau, Statewide Assembly Maps, available at http://legis.wisconsin.gov/ltsb/gis/maps/.

22
Figure 8: Wis. Legislative Tech. Serv. Bureau, Statewide Senate Maps, available at http://legis.wisconsin.gov/ltsb/gis/maps/.

23
Figure 9: “District 30 shows substantial disregard for the traditional districting principles of compactness and regularity....” Vera, 517 U.S. at 966.

24
Figure 10: District 18 “has some of the most irregular boundaries of any congressional district in the country...” Vera, 517 U.S. at 973 (quoting Barone & Ujifusa, Almanac of American Politics 1996, at 1307). Taken together, “Districts 18 and 29 interlock ‘like a jigsaw puzzle... in which it might be impossible to get the pieces apart.’” Id. (quoting Barone & Ujifusa, Almanac of American Politics 1996, at 1307-1308).

25
Figure 11: District 29 “resembles 'a sacred Mayan bird, with its body running eastward along the Ship Channel from downtown Houston until the tail terminates in Baytown. Spindly legs reach south to Hobby Airport, while the plumed head rises northward almost to Intercontinental airport.... In the western extremity of the district, an open beak appears to be searching for worms in Spring Branch. Here and there, ruffled feathers jut out at odd angles.'” Vera, 517 U.S. 973-74 (quoting Barone & Ujifusa, Almanac of American Politics 1996, at 1335).

26
Figure 12: District 12 “winds in a snakelike fashion through tobacco country, financial centers, and manufacturing areas....” Shaw, 509 U.S. at 635.
Figure 13: “[O]ne Democratic voter remarked when the Senate plan was unveiled: People who live near the [district line separating Senate districts 33 and

27 34] are going to need an Indian guide and a compass to figure out which district they're in.” Bandemer, 478 U.S. at 183 n. 24 (Powell, J., concurring in part and dissenting in part) (internal quotations omitted).
Figure 14: This map “shows... grotesque gerrymandering.” Bandemer, 478 U.S. at 180 n. 21 (Powell, J., concurring in part).
Figure 15: “[W]hile District 12 is wider and shorter than it was before, it retains its basic ‘snakelike’ shape...” Cromartie, 526 U.S. at 543, app.

28
Figure 16: Probably one of the most famous example of gerrymandering is the “uncouth twenty-eightsided figure” in Gomillion v. Lightfoot. Gomillion, 364 U.S. at 340, app.
C. The EG, When Combined with Current Political Geography, Mathematically Forces Resettlement of Voters into NonSimilar Voting Communities. As previously shown, Democratic voters tend
to cluster in population centers and Republican voters tend to live in more rural areas. The question remains, is this phenomenon reflective of party affiliation or also political ideology? The data on the concentration of liberals in major urban areas is extensive. For example, in 50 of the 67 cities in the

29
United States with a population of over 250,000, the people lean liberal in their political outlook. See Chris Tausanovitch & Christopher Warshaw, Representation in Municipal Government, Am. Pol. Sci. Rev. 605, 609 fig. 1 (hereinafter Tausanovitch, Municipal Government).

30
Figure 17: Tausanovitch, Municipal Government at fig. 1.
The underlying issue is not one of pure happenstance, but rather is a complex set of variables that includes history and personal

31

preference. A study from 2014 asked individuals

where they would prefer to live “if they could live

anywhere in the U.S.” Political Polarization in the

American Public: Section 3: Political Polarization

and Personal Life, Pew Research Center (June 12,

2014),

http://www.people-

press.org/2014/06/12/section-3-political-polarization-

and-personal-life/; see infra Figure 18.

Figure 18: Id.
As amicus has shown, this result is not surprising given the current distribution of voters.

32
Of those individuals who consider themselves “consistently liberal” 66% of them prefer to live in urban or suburban environments. Id. Compare that to the 76% of people who consider themselves as consistently conservative who would choose to live in rural areas and small towns. Id.
Similarly, those who view themselves as “consistently conservative” prefer more space than those who identify as “consistently liberal.” Id.; see infra Figure 19.

Figure 19: Id.

Wisconsin, for example, has its primary

population centers to the east-southeast of the state.

See Malia Jones & Caitlin McKown, How and Where

Trump Won Wisconsin in 2016, WisCONTEXT (Nov.

21,

2016,

3:00

PM),

https://www.wiscontext.org/how-and-where-trump-

33 won-wisconsin-2016 (hereinafter Jones, How and Where Trump Won); see infra Figure 20. The majority of Wisconsin is geographically rural. See Id. Only state legislatures are equipped to balance all of the various legal requirements of redistricting along with the needs of the people and their chosen communities.
Figure 20: Jones, How and Where Trump Won. Grouping people into compact districts is not
an end in and of itself. Compact districts allow citizens to better engage in the political process. Whitford, 218 F. Supp. 3d at 944 (Griesbach, J., dissenting) (quoting Paul L. McKaskle, Of Wasted

34
Votes and No Influence: An Essay on Voting Systems in the United States, 35 Hous. L. Rev. 1119, 1144-45 (1998)). “Disregard of compactness... destroys some of the advantages of single-member districts, including a sense of community and an awareness of what areas a district includes.... Disregard of compactness also substantially impairs the ability of candidates to organize on a grass-roots basis.” Id; see also id (“[L]iving in a bizarrely-shaped district is part of the injury a voter suffers in an unconstitutional gerrymander.”). The EG does not factor into its calculations traditional districting criteria. The natural result of the EG’s mathematical formula is to create non-compact districts to achieve a lower EG, irrespective of how communities and political subdivisions are actually organized.
Thankfully, no state has as of yet been forced to redistrict in order to comply with the EG. However, one need look no further than Illinois to see what may result in a redistricting informed by the EG. The Illinois redistricting carved up Chicago into pie like slices in order to crack more suburban Republican voters. See Chen, Don’t Blame the Maps; see also infra 35-36; infra Figure 21; supra Figure 1. Democrats did this because so much of their voting base is concentrated in Chicago. See supra Figure 2. Researchers have shown that non-partisan simulations result in more Republican seats than the current plan. See Chen, Don’t Blame the Maps. However, Democrats show a small EG, likely due to the political geography of the state. See Trende, Expert Report at ¶ 103; see also supra pp. 10-19. It appears likely that, under the EG, densely populated Democratic strongholds in Dane and Milwaukee

35
Counties would be similarly carved up to spread Democratic influence to the more Republican outlying areas.

Figure 21: USGS, The National Map Small Scale:

Illinois, Congressional Districts – 113th Congress,

available

at

https://nationalmap.gov/small_scale/printable/congre

ss.html.

36
By comparison, the Wisconsin districts are easily understandable because they are compact instead of being grotesquely shaped to account for the political geography of Democrats. It is easy to see, if one compares Illinois to Wisconsin, that the lines in Wisconsin are quite straight by comparison. Compare supra Figures 1, 2, & 21, with supra Figures 6-8 & 20. The districts, of course, very by size due to population considerations. However, the Wisconsin map generally keeps people who live in similar communities together. See supra Figures 6-8.
The EG does not “care about” voters - it simply groups voters based on votes cast in districtby-district elections aggregated statewide to satisfy a mathematical formula. “It may be worth pointing out that the Justices’ desire for normal-looking districts is not a purely aesthetic conceit, or a “beauty contest.” Whitford, 218 F. Supp. 3d at 944 (Griesbach, J., dissenting) (citing Vera, 517 U.S. at 977 (1996)). This Court should allow legislatures and not mathematical formulas decide how voters are grouped.
D. The “Efficiency Gap” Generally Fails to Recognize Democratic Gerrymanders.
A natural outgrowth of the current political geography of the United States is that the EG fails to regularly identify what are obvious Democratic gerrymanders. As has been previously noted, the EG results in some very strange outcomes due to how it is calculated and the fact that the EG ignores political geography only serves to amplify that fact.

37
See supra pp. 4-6, 10-19. The EG has as its baseline for a completely even election at 0% EG, and essentially distributes all votes across any state into competitive districts. Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 853 (2015) (hereinafter Stephanopoulos, Efficiency Gap). If spatial clustering of voters exists, it places into question one of the EG’s principal assumptions: should the baseline of the EG in a state with significant vote clustering be 0%?
The expert report of Sean P. Trende in Common Cause v. Rucho illustrates this concern. See Rucho, 2017 U.S. Dist. LEXIS 30242 (denying motion to dismiss political gerrymandering claim). Because of the natural clustering effect of Democrats, an argument to minimize a Republican EG “effectively becomes a constitutional requirement for states to make ‘make up calls’ for inefficient vote distributions, rather than a remedy for gerrymandering.” Trende, Expert Report at ¶¶ 35-38. This is not simply a hypothetical phenomenon, one need only look at past gerrymanders to see this at work.
For example, the Illinois redistricting of 2011, where Democrats controlled the state legislature and the governor’s office, created a map that was designed to eliminate up to six Republican seats. There, Republicans were blocked from participating in drawing maps. For example, Republican legislators were prevented from receiving the “shape” files—the census block numbers—and thus Republicans were not able to effectively evaluate the

38
Democrat proposed maps. Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563, 572 (N.D. Ill. 2011) (three-judge court). The Democratic Congressional Campaign Committee communicated with Illinois Democrat legislators stating that the goal of its redistricting efforts was to maximize Democrat performance. See id. See also Trende, Expert Report at ¶ 102. Accordingly, “by artfully dividing up Chicago into pie-sliced districts extending from Lake Michigan into the suburbs, the Illinois Democrats have done better for themselves than the outcome of our nonpartisan simulations.” Chen, Don’t Blame the Maps; see supra Figure 1. However, “over the course of the plan’s implementation, its efficiency gap has actually been negative, indicating a slight Republican lean.” Trende, Expert Report at ¶ 103. Ultimately, the three-judge court upheld the map from a partisan gerrymandering challenge because the plaintiffs failed to present a workable standard to adjudicate a partisan gerrymandering claim. See Comm. for a Fair & Balanced Map, 835 F. Supp. 2d at 567.
Another good example of this phenomenon is in North Carolina, shown in Figure 22. North Carolina’s 1992 12th district, and the entire 1992 statewide map, is a rather infamous example of Democratic gerrymandering. See generally Shaw, 509 U.S. at 630. However, in 1994, this map produced an EG that shows a Republican gerrymander. Trende, Expert Report at ¶ 126. Furthermore, the maps drawn in 1998 and 2000 both produce slight Republican EG’s but the State sought to defend these maps in court, “in part on the

39 grounds that they were a Democratic gerrymander.” Id. at ¶ 129; see generally Shaw, 509 U.S. at 630.
Figure 22: 1991 North Carolina Congressional District Map. Trende, Expert Report at ¶ 126.
The EG is a bad metric for attempting to determine partisan gerrymanders on many fronts. However, the most dangerous way the EG fails is at the same time its most insidious. Once again, due to political geography and compliance with traditional districting criteria the EG simultaneously overexaggerates Republican enacted maps, showing them as gerrymanders, and under-exaggerates Democrat enacted maps, showing them as nongerrymanders. A mathematical equation that appears biased in its application cannot and should not be adopted by this Court.
E. Appellees’ “Efficiency Gap” Is Biased Towards Democrats and Is Likely to Cause Constitutional Conflict with Section Two of The Voting Rights Act.

40
Amicus has previously argued that adopting the “efficiency gap” as a test for partisan gerrymandering creates conflicts between districting plans and Section 2 of the Voting Rights Act (“VRA”). See Jurisdictional Brief at 15-25. Amicus has further argued, through a set of hypotheticals proposed by Professor M.V. Hood III, that the VRA and the EG reveal an underlying bias in “efficiency gap” analysis. See id. Specifically, the EG disguises the typical Democratic political gerrymander while falsely labeling Voting Rights Act remedial plans as political gerrymanders. See id; Vieth, 541 U.S. at 308-09 (Kennedy, J., concurring); Colegrove v. Green, 328 U.S. 549, 556 (1946) (exhorting that courts should not enter the “political thicket” of redistricting). Therefore, amicus concluded, the “efficiency gap” is a defective and deficient standard for determining an equal protection violation.
Speaking broadly, the Voting Rights Act intersects with the EG by mandating that states create minority-majority or minority crossover districts. This fact further exacerbates the political geography problem already discussed. Chen et al. observed that “[s]ince minority groups protected under the VRA tend to vote overwhelmingly Democratic, districts produced by racial gerrymandering will likely be as distinct... as those produced by partisan gerrymandering.” Jowei Chen & David Cottrell, Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate the effect of Gerrymandering in the U.S. House, 44 Electoral Stud. 329, 336 (2016). Since the EG does not take into account VRA districts the EG is just as likely to measure an effect

41
mandated by the VRA as it is a partisan gerrymander.
Since the submission of amicus’ jurisdictional statement, the Court decided Cooper v. Harris. The recent decision in Cooper v. Harris does nothing to fundamentally change amicus’ analysis of how the EG interacts with VRA districts. The Voting Rights Act still requires legislatures to allow for “racial minorities to elect their preferred candidates” as long as race does not predominate over other considerations and, if it does, the state was compelled in order to comply with the VRA. Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (quoting Beer v. United States, 425 U.S. 130, 141 (1976)). Section 2 remedial plans still require majority-minority districts depending on the outcome of the application of the Gingles preconditions. Cooper, 137 S.Ct. at 1470. Furthermore, if approximately 90% of AfricanAmerican voters continue to vote for Democrats then the Voting Rights Act will continue to significantly impact the political redistricting landscape. See Cooper, 137 S.Ct. at 1488 n.3 (Alito, J. dissenting).
IV. Voters’ Preferences Are Not Monolithic and Unchanging, Contrary to the Assumptions of the “Efficiency Gap”
There is also a basic assumption that most academic commentators and even legislatures make when drawing districts. Namely, when they identify voters by party affiliation, the voters will always vote for the political party with which they have been identified. This is a rather large assumption

42

that appears to be unfounded. “Party affiliation is

not set in stone or in a voter’s genes...” Whitford, 218

F. Supp. 3d at 936 (Griesbach, J., dissenting) (“The

assumption underlying Plaintiffs’ entire case is that

party affiliation is a readily discernable

characteristic in voters and that it matters above all

else

in

an

election.”);

see

Vieth, 541 U.S. at 287 (“Political affiliation is not an

immutable characteristic, but may shift from one

election to the next; and even within a given election,

not all voters follow the party line. We dare say (and

hope) that the political party which puts forward an

utterly incompetent candidate will lose even in its

registration stronghold.”).

The 2016 presidential election shows how voting preference can drastically change based, not on party identification, but on the appeal of individual candidates. Since November 2016, multiple studies have undertaken to show how many citizens switched party allegiances based on candidate preference in the presidential election.7 Specifically, these studies have looked at how many people who voted for President Obama in 2012

7 It should be noted that the rush to study this

phenomenon was largely based on the failures of

statistical polling methods that agreed that Hillary

Clinton had a 70-99% chance of wining the election.

Andrew Mercer, Claudia Deane, & Kyley McGeeney,

Why 2016 Election Polls Missed Their Mark, Pew

Research

Center

(Nov.

9,

2016),

http://www.pewresearch.org/fact-

tank/2016/11/09/why-2016-election-polls-missed-

their-mark/.

43

switched their vote to candidate Trump in 2016. See

Geoffrey Skelley, Just How Many Obama 2012-

Trump 2016 Voters Were There?, Rasmussen Reports

(June

01,

2017),

http://www.rasmussenreports.com/public_content/pol

itical_commentary/commentary_by_geoffrey_skelley/

just_how_many_obama_2012_trump_2016_voters_w

ere_there (hereinafter Skelley, Rasmussen).

Figure 23: Map Showing Change in Republican Vote Margin by County. Skelley, Rasmussen at Map 1.
Figures 23 and 24 show just how big a swing voter preferences can have at the county level. The Midwestern United States specifically shows a striking change in voter preferences. In fact, a

44

significant number of counties in Michigan,

Pennsylvania, and Wisconsin (states President

Obama won in 2012) all increased in Republican

margin by at least 10 points in favor of President

Trump. Skelley, Rasmussen. For example, Juneau

County, Wisconsin voted for President Obama over

Mitt Romney 52% to 47%. Mark Fahey & Nicholas

Wells, The Places That Flipped and Gave the

Country

to

Trump,

CNBC,

http://www.cnbc.com/heres-a-map-of-the-us-counties-

that-flipped-to-trump-from-democrats/ (accessed on

7/20/2017) (mouse over specific counties for county-

by-county results). However, the same county voted

for President Trump 62% to Secretary Clinton’s 35%.

Id. Twenty-two Wisconsin counties that voted for

President Obama in 2012 voted for President Trump

in 2016. See generally Jessica Taylor, The Counties

that Flipped from Obama to Trump, in 3 Charts,

National Public Radio (Nov. 15, 2016, 12:26 PM),

http://www.npr.org/2016/11/15/502032052/lots-of-

people-voted-for-obama-and-trump-heres-where-in-

3-charts.

45
Figure 24: Id. Additionally, there have been three different
studies that looked at the number of President Obama to President Trump vote switchers. Each of the studies mark a significant shift in voter preference based on the candidate.
Table 2: Makeup of Clinton and Trump Voters by 2012 Presidential Vote. Skelley, Rasmussen at Tbl. 1.

46
Table 3: Makeup of Clinton and Trump Voters by 2012 Presidential Vote. Skelley, Rasmussen at Tbl. 2.
Table 4: Makeup of Clinton and Trump Voters by 2012 Presidential Vote. Skelley, Rasmussen at Tbl. 3.
Tables 1-3 demonstrate the phenomenon represented in Figures 23 and 24 except now at the national level. Based on the three polling studies represented, Trump won between 11% and 13% of President Obama’s 2012 voters. See Skelley, Rasmussen. Appellee’s expert proposed that an EG of just 7% would be a threshold for proving partisan effect. See Whitford, 218 F. Supp. at 860-61. The authors of the EG argue instead for an EG of 8% as prima facie evidence of unconstitutionality in state

47
house plans. See Stephanopoulos, Efficiency Gap. However, under either proposal the latest presidential vote seems to lay bare the assertion that any perceived electoral lead or voter block is monolithic and inflexible.
It is not just in nationwide elections where voter preferences show flexibility. Congressional districts are just as susceptible to changing voter preferences based, not on party affiliation, but on the individual candidate. A recent example of voter preferences rather than party affiliation at work is the recent election in the Georgia 6th congressional district.
Secretary Tom Price won the 2016 election for his then-Congressional seat by 23%, the 2014 election by 32%, and the 2012 election by 29%. Ballotpedia, Georgia’s 6th Congressional District, https://ballotpedia.org/Georgia%27s_6th_Congression al_District (last visited July 21, 2017). In fact, a Republican has been the congressional representative of the Georgia 6th since Newt Gingrich won the seat in 1978. Id. One could assume that Republicans are nearly invincible in the Georgia 6th. However, Karen Handle, a Republican, only defeated the Democratic Party challenger by 3.6%. Id. Appellees and other proponents of the EG would have us believe that the Georgia 6th was an unwinnable partisan gerrymander, when in fact the Republican candidate was able to hold on to victory after a vigorous electoral competition resulting in the most expensive House race in the history of the

48
United States.8 Even more telling, is that the majority of polling leading up to this election had the Democratic challenger winning by as much as 7%.9 Real Clear Politics, Polls: Georgia 6th District RunOff Election – Handel vs. Ossoff (June 20, 2017), https://www.realclearpolitics.com/epolls/2017/house/g a/georgia_6th_district_runoff_election_handel_vs_oss off-6202.html.
Another example of crossover or split ticket voting can be found in New Jersey’s 5th congressional district. The New Jersey 5th includes portions of Warren, Sussex, Passaic, and Bergen counties. Ballotpedia, New Jersey’s 5th Congressional District, https://ballotpedia.org/New_Jersey%27s_5th_Congres sional_District (last visited July 26, 2017) (hereinafter Ballotpedia, New Jersey 5th. A Republican has held the New Jersey 5th for the entirety of the last two redistricting cycles. Id. President Trump won a majority of votes in this
8 See Simone Pathe, It’s Election Day in the Most Expensive House Race Ever, Roll Call (June 20, 2017 5:04 AM) http://www.rollcall.com/news/politics/mostexpensive-house-race-jon-ossoff-karen-handel. As much as this is an argument that voter preferences matter it is also a reminder that incumbency matters. Any method of calculating partisanship, like the EG, that does not address the issue of incumbency is a poor metric indeed. 9 The fact that so many statistical models were wrong about so many elections should give the Court pause before adopting any statistical method to determine the outcome of redistricting cases nationwide.

49

congressional district in the 2016 presidential

election. David Nir, Daily Kos Elections’ Presidential

Results by Congressional District for the 2016 and

2012

Elections,

Daily

Kos,

https://www.dailykos.com/stories/2012/11/19/1163009

/-Daily-Kos-Elections-presidential-results-by-

congressional-district-for-the-2012-2008-elections

(last visited July, 31 2017) (hereinafter Nir, Daily

Kos Elections).

If voters choose candidates by political party and nothing else, then one should be able to safely assume a Republican won this district in 2016. However, a Democrat won the district 51.1% to 46.7% against an incumbent who held the seat since 2003. Ballotpedia, New Jersey 5th. Democrats in congress also won a number of districts in which President Trump won the popular vote in those respective districts.10 Nir, Daily Kos Elections. Conversely, Republicans won a number of districts in which Secretary Clinton won the popular vote.11 Id.

10 The following is a list of all congressional districts held or gained by Democrats but won by President Trump in 2016: Arizona 1st, Illinois 17th, Iowa 2nd, Minnesota 1st, 7th, and 8th, New Hampshire 1st, New Jersey 5th, New York 18th, Nevada 3rd, Pennsylvania 17th, and the Wisconsin 3rd. See Nir, Daily Kos Elections. 11 The following is a list of all congressional districts held or gained by Republicans but won by Secretary Clinton: Arizona 2nd, California 10th, 21st, 25th, 39th, 45th, 48th, and 49th, Colorado 6th, Florida 26th and 27th, Illinois 6th, Kansas 3rd, Minnesota 3rd, New Jersey 7th, New York 24th, Pennsylvania 6th and 7th,

50

This illustrates precisely how nearly any district can be won or made competitive by a candidate with the proper mix of effort, policy positions, public appeal, and media attention. Or to put it a different way,

Imagine a voter who votes for a Democratic assemblyman, a Republican state senator and a Republican governor. What are we to make of such a ballot, except to conclude that the voter is expressing individual preferences about individual races, rather than some kind of global desire to increase seats for a given party?

Whitford, 218 F.Supp. 3d at 956 (Griesbach, J., dissenting).

A. Wisconsin Voters, Much Like Voters in the Rest of the United States, are not Monolithic.

There have been several high-profile examples

of Wisconsin voters opting for candidates based, not

on party preference, but on the candidates

themselves. Until 2016, the state of Wisconsin has

voted for a Democrat in every presidential election

since 1984. See Courtney Kueppers, Trump Becomes

First Republican Presidential Candidate Since 1984

to Win Wisconsin, Wisconsin Public Radio (Nov. 8,

2016),

http://www.wpr.org/trump-becomes-first-

republican-presidential-candidate-1984-win-

Texas 7th, 23rd and 32nd, Virginia 10th, and the Washington 8th. Id.

51
wisconsin. However, Wisconsin has had a Republican Governor since 2010. Ballotpedia, Governor of Wisconsin, https://ballotpedia.org/Governor_of_Wisconsin (last visited July 25, 2017). Typically, Wisconsin voters do not vote for President and Governor in the same year, however, in 2012 Wisconsin voters held a recall election in an attempt to remove Governor Walker. Id.

52
Figure 25: Wis. Legislative Tech. Serv. Bureau, 2012 Republican Gubernatorial Map, available at http://legis.wisconsin.gov/ltsb/gis/maps/. .

53
Figure 26: Wis. Legislative Tech. Serv. Bureau, 2012 Republican Presidential Election Map, available at http://legis.wisconsin.gov/ltsb/gis/maps/.
Figures 25 and 26 show just how big the vote difference was between the 2012 presidential election

54
and gubernatorial recall election.12 Wards throughout the western half of the state voted for Governor Walker in June and President Obama in November. See supra Figures 25, 26; see also Whitford, 218 F.Supp. 3d at 937 (Griesbach, J., dissenting) (explaining the difference in voter preference between presidential and gubernatorial elections, “[c]andidates for state offices run on different issues than candidates for national offices, which presumably explains the difference in voter turn-out and results...”).
This is not a phenomenon limited to elections that are held at different times. In 2014, Wisconsin voters elected a Republican Governor, Attorney General, and Treasurer but also elected a Democrat for Secretary of State. See infra Table 5.
Table 5: Data retrieved from Wis. Elections Comm., 2014 Fall General Election Results, Statewide Summary Election Results for All Offices (2014), available at http://elections.wi.gov/electionsvoting/results/2014/fall-general.
As a final example, the Wisconsin 3rd
12 The recall election and the presidential election were not held at the same time. The recall election took place in June and the presidential election took place five months later in November.

55
congressional district was won by a Democrat incumbent who ran unopposed. Hope Kirwan, Ron Kind Running Unopposed For Congressional Seat, Wisconsin Public Radio (Nov. 3, 2016, 9:40 AM) https://www.wpr.org/ron-kind-running-unopposedcongressional-seat (Republican District Chair for the 3rd District Brian Westrate stated that conservation of resources was more important than “a placeholder campaign” in the Wisconsin 3rd.). President Trump won the vote in the same district. Nir, Daily Kos Presidential Elections. No one knows what would have happened had the Republican Party put a challenger in that district. However, it does illustrate the point that more goes into congressional elections than placing a person with the “correct” party affiliation on the ballot.
Furthermore, this Court has presciently stated that “[t]he existence or degree of asymmetry may in large part depend on conjecture about where possible vote-switchers will reside.” League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 420 (plurality opinion). Any method for determining partisan gerrymandering thus far presented assumes no, or very little, vote switching. The fact that the EG looks backwards at previous elections does little to abate the fact that in politics, past success does not automatically result in future success. One need look no further than the 2016 presidential election to see this at work.

56
V. Appellees Reliance on New, Yet Unpublished, Research Is Misguided Because It Mischaracterizes Amicus’ Arguments and Ignores the Methodological Problems of the Research Itself.
Appellees note in their Motion to Affirm that a recent paper “disprove[s] any assertion that Wisconsin voters’ spatial patterns are responsible for Act 43’s skew.”13 Appellees’ Mot. to Affirm at 15, Whitford v. Gill, (2017) (No. 16-1161). This paper, which does not appear to have been publicly available at the time of the trial in this matter, simply affirms what Amicus has previously argued which is that the political geography of Wisconsin has a noticeable effect on any attempt at even a “neutral” districting.14 For example, using a computer simulation of 200 “non-partisan” districting plans and then calculating those plans’ EG resulted in the vast majority of simulated plans
13 It is important to note here that this paper was not published at the time Appellee’s relied on it in their brief. Furthermore, at the time of this brief the paper cited has still not been published. 14 Whenever the idea of “neutral” redistricting standards are introduced it is important to note the words of this Court that, “[i]t may be suggested that those who redistrict and reapportion should work with census, not political, data... [b]ut this politically mindless approach may produce... the most grossly gerrymandered results." Bandemer, 478 U.S. at 129 (White, J., plurality opinion) (quoting Gaffney v Cummings, 412 U.S. 735, 753 (1973)).

57
having a noticeable Republican electoral advantage. See Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, Election L. J.: Rules, Pol., Pol’y (June 2017) (not yet published) (hereinafter Chen, Wisconsin Redistricting).15 The author attempts to show that Act 43 is an outlier compared to the computer simulations that were run based on the EG metric. See Chen, Wisconsin Redistricting at Figures 1-7.
There are several problems with Appellee’s reliance on this paper. First, the paper never addressed incumbency, which is a key traditional neutral redistricting criterion. Vera, 517 U.S. at 964 (“[W]e have recognized incumbency protection, at least in the limited form of, ‘avoiding contests between incumbents,’ as a legitimate state goal.”) (quoting Karcher v. Daggett, 462 U.S. 725, 740 (1983). The papers’ lack of addressing incumbency related concerns is even more perplexing since incumbency protection was specifically at issue in the court below. See Whitford, 218 F. Supp. 3d at 849 n.34 (Senate Majority Leader staff member, Tad Ottman testified, “where incumbents lived ‘matter[s] because in the end this was a map that we were going to ask the Legislature to vote for and we knew that was one of the considerations that was going to be very important’ [to them].”).
In fact, there are several notable examples of so-called “bipartisan gerrymanders” where mixed
15 Not yet published article available at http://wwwpersonal.umich.edu/%7Ejowei/.

58

legislatures who could not pass their own plan, instead brokered a deal where each party’s incumbents retained their seats. Michael Kang, The Bright Side of Partisan Gerrymandering, 14 Cornell J.L. & Pub. Pol’y 443, 464 (2005). See Gaffney v. Cummings, 412 U.S. 735 (1973).

Second, the author uses Mitt Romney’s share

of the November 2012 two party presidential vote,

which is both out of date and not reflective of the

vote in assembly or congressional voting districts.

See Chen, Wisconsin Redistricting at 11. It is likely

that data from the latest Presidential election would

greatly impact Chen’s results.16 President Trump

was the first Republican to win Wisconsin since

Ronald Reagan did in 1984. See Courtney Kueppers,

Trump Becomes First Republican Presidential

Candidate Since 1984 to Win Wisconsin, Wisconsin

Public

Radio

(Nov.

8,

2016),

http://www.wpr.org/trump-becomes-first-republican-

presidential-candidate-1984-win-wisconsin.17

Conversely, Secretary Clinton received the lowest

16 Keep in mind that this was not a paper published

before the election, the date listed on the as yet

unpublished piece is June 2017, there was plenty of

time to incorporate new data into the model.

17 The statistical polling models also predicted

President Trump would lose by between 3 and 16

percentage points. Real Clear Politics, Polls,

Wisconsin:

Trump

vs.

Clinton,

https://www.realclearpolitics.com/epolls/2016/preside

nt/wi/wisconsin_trump_vs_clinton-5659.html#polls

(last visited July 17, 2017). In fact, no published poll

showed President Trump winning Wisconsin. Id.

59

percentage of any Democratic candidate in

Wisconsin since President Clinton did, in a three-

way race that had Ross Perot getting over 20% of the

vote. US Election Atlas, 1992 Presidential Election

Results

-

Wisconsin,

http://uselectionatlas.org/RESULTS/state.php?year=

1992&fips=55&f=0&off=0&elect=0&minper=0 (last

visited July 14, 2017). This seemingly large switch in

partisan voters will drastically effect any EG

calculation.

Finally, amicus has never contended, and do not contend here, that political geography is the only reason for the make up of Wisconsin’s current redistricting plan. See Whitford, 218 F. Supp. 3d at 963 (Griesbach, J., dissenting) (“Even if geography does not explain the entire gap, and even if it plays only a ‘modest’ role... it would seriously undermine the notion that the Republicans in this case engaged in a partisan gerrymander of historic proportions.”) (emphasis in the original).

Amicus has instead argued the following: 1) the political geography of Wisconsin has an effect on redistricting, 2) the EG ignores political geography, 3) because the EG ignores the realities of political geography it overstates the partisanship of Act 43, and 4) the EG fails to account for the reality of incumbent officials who are generally well known in their districts seeking re-election.

Additionally, as this Court has said, “we are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” LULAC, 548

60
U.S. at 420 (discussing the reliability of choosing a model that does not take into account possible vote switchers). Can there be anything more hypothetical than running 200 computer simulations based on years old non-district specific voting data and then applying a metric based on proportional voting, the EG, to tell a state legislature that they should have, and were constitutionally required, to do better?
CONCLUSION
In conclusion, despite Justice Kennedy’s hope in Vieth that technology may be a way forward in determining partisan gerrymanders, the EG, as a metric of determining those gerrymanders, is hopelessly flawed. See Vieth, 541 U.S. at 313 (Kennedy, J., concurring) (“[T]echnologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representation rights of voters and parties.”).
Amicus urges the Court, for the aforementioned reasons, to reject the efficiency gap as a metric in gerrymandering cases and reverse the district court’s ruling.
Respectfully submitted,
Jason Torchinsky Counsel of Record J. Michael Bayes Shawn Toomey Sheehy Phillip M. Gordon Holtzman Vogel Josefiak Torchinsky PLLC

61 45 North Hill Drive Suite 100 Warrenton, VA 20186 (540) 341-8808 (540) 341-8809 Jtorchinsky@hvjt.law P. Christopher Winkelman National Republican Congressional Committee 320 First Street, SE Washington, DC 20003 202-479-7000 202-484-2543
August 4, 2017.

 
 No. 16-1161
In the
Supreme Court of the United States

BEVERLY R. GILL, et al., Appellants,
v. WILLIAM WHITFORD, et al.,
Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF FOR AMICUS CURIAE WISCONSIN MANUFACTURERS & COMMERCE IN SUPPORT OF APPELLANTS

August 4, 2017
274736

Jordan C. Corning Counsel of Record
Eric M. McLeod Joseph S. Diedrich Husch Blackwell LLP 33 East Main Street, Suite 300 Madison, WI 53701 (608) 255-4440 jordan.corning@huschblackwell.com
Counsel for Amicus Curiae
A
(800) 274-3321 • (800) 359-6859

i
TABLE OF CONTENTS Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii
INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT  . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Elections are decided by individuals making purposeful choices based on innumerable factors that change over time . . . . . . . . . . . . . . . . 4
II. Because it ignores how choice and change affect elections, Plaintiffs’ theory of the case fails conceptually and legally . . . . . . . . 14
A. Pla i nt i f fs’ t heor y of t he ca se disregards the role of individual choice and change over time, rendering it conceptually untenable  . . . . . . . . . . . . . . . . 14
B. Neglecti ng the role of choice — particularly the choice not to vote— runs counter to this Court’s Equal Protection jurisprudence  . . . . . . . . . . . . . . 29
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

ii

TABLE OF CITED AUTHORITIES CASES

Page

Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Baldus v. Members of Wisconsin Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012)  . . . . . . . . . . . . . 6

Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788 (2017)  . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Burns v. Richardson, 384 U.S. 73 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Cooper v. Harris, 137 S. Ct. 1455 (2017)  . . . . . . . . . . . . . . . . . . . . . . . . . 30

Davis v. Bandemer, 478 U.S. 109 (1986)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Evenwel v. Abbott, 136 S. Ct. 1120 (2016)  . . . . . . . . . . . . . . . . . . . 29, 31, 32

Fortson v. Dorsey, 379 U.S. 433 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iii
Table of Contents Page
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Vieth v. Jubelirer, 541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 20
Wesberry v. Sanders, 376 U.S. 1 (1964)  . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31
STATUTES AND OTHER AUTHORITIES
Craig Gilbert, Difference-Makers in Trump’s Wisconsin Win, Milwaukee Journal Sentinel (Nov. 15, 2016, 11:14 AM) . . . . . . . . . . . . . . . . . . . . . . 28
Dee Allsop & Herbert F. Weisberg, Measuring Change in Party Identification in an Election Campaign, 32 Am. J. of Pol. Sci. 996 (1988)  . . . . . . . 5
F.A. Hayek, The Use of Knowledge in Society, 35 The Am. Econ. Rev. (1945) . . . . . . . . . . . . . . . 13, 20
Fed. Election Comm’n, Official 2016 Presidential General Election Results, Jan. 30, 2017 . . . . . . . . . . . 7
The Life of Ronald Reagan: A Timeline, NPR . . . . . . . 5
Jeffrey M. Jones, Record-High 42% of Americans Identify as Independents,Gallup (Jan. 8, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv
Cited Authorities
Page Jeremiah J. Garretson, Changing with the
Times: The Spillover Effects of Same-Sex Marriage Ballot Measures on Presidential Elections, 67 Pol. Res. Q. 280 (2014) . . . . . . . . . . . . . . 9
John W. Schoen, Here’s What Clinton, Trump Spent to Turn Out Votes, CNBC (Nov. 7, 2016) . . . . . . . . . 12
Paul Allen Beck et al., The Social Calculus of Voting: Inter personal , Media , an d Organizational Influences on Presidential Choices, 96 The Am. Pol. Sci. Rev. 57 (2002) . . . . . . . 7
Paul S. Herrnson & James M. Curry, Issue Voting and Partisan Defections in Congressional Elections, 36 Legis. Stud. Q. 281 (2011) . . . . . . passim

1
INTEREST OF THE AMICUS CURIAE1
Wisconsin Manufacturers & Commerce (“WMC”) is Wisconsin’s state chamber of commerce, state manufacturers’ association, and state safety council. Founded in 1911, WMC now has nearly 3,800 members, including large and small manufacturers, service companies, local chambers of commerce, and specialized trade associations. WMC is a nonpartisan organization dedicated to making Wisconsin the most competitive state in the nation. To that end, WMC regularly participates in public policy debates and seeks to advance its members’ interests through the legislative process. WMC thus has an interest in ensuring that enactments of the state legislature are given due respect under the Constitution without improper interference from the other co-equal branches of government.
SUMMARY OF THE ARGUMENT
This case involves the Plaintiffs’ claim that 2011 Wisconsin Act 43 is an unconstitutional partisan gerrymander that cracks and packs Democrats across State Assembly districts. To evaluate such a claim, one must know how many Democrats reside in each district. Plaintiffs seek to show this by relying on election results and statistical analyses interpreting them. But in doing so, Plaintiffs lose sight of basic truths regarding the decisions made by actual voters.
1.  Counsel for all parties have consented to this filing. No counsel for a party authored this brief in whole or in part. In addition to Wisconsin Manufacturers & Commerce, its members, and its counsel, the State Government Leadership Foundation made a monetary contribution intended to fund the preparation and submission of this brief.

2
We return to those basic truths. Every person is unique—and so is every individual voter. Come election time, individual voters make purposeful choices about who to vote for and whether to vote at all. Individual electoral choices, in turn, are influenced by innumerable and ever-changing factors, perhaps the most obvious of which is political-party affiliation. While some individuals routinely and exclusively vote for either Democratic or Republican candidates, others pay little attention to “R” and “D” designations. In fact, public-opinion polls show that ever more Americans identify as independent, often splitting their tickets or swinging from election to election.
Party affiliation is but one factor of many. Another is the particular candidates running, who differ in strength based on incumbency, fundraising, campaigning, personal background, and other factors affecting a candidate’s appeal. Regardless of the strength of a given candidate, moreover, other candidates on the same ballot can sway voters’ choices. Individuals also choose who to vote for based on pressing issues of the day, their personal social networks, and any number of other factors. Importantly, hefty sums of individuals often choose not to vote at all. Keenly aware of these factors, campaigns spend significant amounts of time and money trying to persuade voters and to increase voter turnout.
Whereas individuals choose whether to vote and who to vote for based on innumerable, interrelated factors, Plaintiffs’ theory of the case considers only one: party affiliation. Within that myopic focus, Plaintiffs’ arguments erroneously presume that individual voters and candidates never change their party affiliation and that individuals who identify with a particular party

3
are fungible. Plaintiffs’ evidence, too, displays the same presumptions: election results from 2012 and 2014, as well as statistical analyses built upon them, do not reflect changes in party platforms, candidates, issues, or any of the other numerous factors individuals consider when making electoral choices.
Plaintiffs’ disregard of individual choice and change over time exposes conceptual and legal shortcomings in their theory of the case. To begin, Plaintiffs’ evidence does not measure how many Democrats voted, which candidates they voted for, or in what numbers. Rather, Plaintiffs’ evidence shows only how many votes were cast for Democratic candidates; it fails to differentiate Republican defectors and independent voters, and it wholly ignores nonvoters. As a result, Plaintiffs do not—indeed, cannot— explain how a discriminatory intent to harm Democrats necessarily relates to a discriminatory effect against individuals who may chose, or have chosen, to vote for Democratic candidates. Nor can they explain how looking at votes for a Democratic candidate proves that Democrats were cracked and packed. Hypothetical scenarios and repeated examples in Wisconsin’s recent political history clarify and underscore these points. Plaintiffs, in the end, fail to show how many Democrats reside in particular districts; and without that, it is impossible to know whether Democrats were gerrymandered.
Further, Plaintiffs’ theory of the case conflicts with representation-rights precedent. When this Court has struck down redistricting plans under the Equal Protection Clause, it has generally sniffed out unconstitutionality by measuring, across districts, total population or votingeligible population. Plaintiffs and the district court, by

4
contrast, measure the alleged unconstitutionality here by using numbers of actual votes in past elections—that is, actual-voter population. Doing so, however, treats individuals who choose to vote differently from those who choose not to. Absent exceptional circumstances, of which Plaintiffs offered no proof below, using actual-voter population is constitutionally problematic and finds no support in controlling caselaw.
In its opinion and judgment below, the district court accepted Plaintiffs’ theory of the case essentially in its entirety. Because Plaintiffs’ theory is conceptually and legally untenable, this Court should reverse.
ARGUMENT
I. Elections are decided by individuals making purposeful choices based on innumerable factors that change over time.
Election results are reported in the aggregate: Jones received 2,200 votes to Smith’s 1,800, while another 4,000 eligible voters cast no ballot at all. What do these numbers represent? Votes of course, but something more: every number reflects conscious decisions made by individual human beings. Each election, individuals consider countless factors and ultimately decide who to vote for— and whether to vote at all. See J.S. App. 311a (Griesbach, J., dissenting). Trying to create a comprehensive list of all these factors betrays its infinite nature. We discuss just a few of the most significant.
1. Political-party affiliation is obviously one of these factors. To be sure, many individuals choose who to vote

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for based on their party affiliation; voters who identify as Republicans most often vote for Republican candidates, just as voters who identify as Democrats most often vote for Democratic candidates. But party affiliation, neither “set in stone [n]or in a voter’s genes,” “is not an immutable characteristic.” J.S. App. 242a–43a (Griesbach, J., dissenting) (quoting Vieth v. Jubelirer, 541 U.S. 267, 287 (2004) (plurality opinion)). Rather, over the long term (several years) and even in the short term (one election cycle), partisanship is “malleable.” Dee Allsop & Herbert F. Weisberg, Measuring Change in Party Identification in an Election Campaign, 32 Am. J. of Pol. Sci. 996, 997, 1013–14 (1988). “[V]oters can—and often do—move from one party to the other or support candidates from both parties.” Davis v. Bandemer, 478 U.S. 109 (1986) (O’Connor, J., concurring in the judgment). Indeed, “[i]n every election cycle a substantial portion of partisan voters defect and cast their ballots for candidates from the other party.” Paul S. Herrnson & James M. Curry, Issue Voting and Partisan Defections in Congressional Elections, 36 Legis. Stud. Q. 281, 282–83 (2011). Sometimes a partisan switch endures; other times it reverts. Switching, moreover, is not reserved for voters—candidates change, too. One of the most iconic Republicans of the past century, Ronald Reagan, spent much of his adult life campaigning for Democratic candidates, including Harry Truman and Helen Gahagan Douglas. The Life of Ronald Reagan: A Timeline, NPR, http://www.npr.org/news/specials/obits/ reagan/timeline.html (last visited August 2, 2017).
Even within a political party, individual voters weigh party affiliation differently. Depending on the person, the time, and the place, party affiliation may be decisive or it may matter very little. Because “[t]he two major

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political parties are both big tents that contain within them people of significantly different viewpoints,” some individuals make electoral choices based on the intraparty groups with which they identify. Baldus v. Members of Wisconsin Gov’t Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012); see also J.S. App. 287a (Griesbach, J., dissenting). Any casual observer can list several Republican sub-groups: moderates, conservatives, country clubbers, religious-values voters, and so on. So, too, are there Democratic moderates, progressives, Millenial urban liberals, union members, etc. Members of these intraparty groups may be more or less likely to vote consistently with their big-tent party. All in all, voters adhere to party affiliation in varying degrees, across a spectrum from staunch partisan to flip-flopper.
Of course, some individuals do not base their decision on party affiliation at all. On any given ballot, a voter may “split,” choosing a Republican presidential candidate and a Democratic State Assembly candidate. Individuals also may “swing” over time: for reasons other than party affiliation, they vote for a Democrat in 2012 and, in 2016, a Republican. Numerous examples from recent Wisconsin elections illustrate this point. In the 2014 statewide election, Wisconsin voters re-elected Governor Scott Walker, a conservative Republican.2 That same day, Democrat Doug LaFollette won another term as Secretary of State. Obviously some voters chose to split their ticket or to abstain from voting for one of the offices. Eight years earlier on a single statewide ballot, incumbent Democratic
2.  Wisconsin election results are available at the Wisconsin Elections Commission website, http://elections.wi.gov/electionsvoting/results (last visited August 2, 2017).

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Governor Jim Doyle carried the statewide vote, while Republican J.B. Van Hollen, who had previously not run for elective office, won the race for State Attorney General. See also infra pp. 24-28.
Though it remains a major factor for many, party affiliation is generally waning in the aggregate. Political scientists have observed a half century of declining loyalty for both major parties. Paul Allen Beck et al., The Social Calculus of Voting: Interpersonal, Media, and Organizational Influences on Presidential Choices, 96 The Am. Pol. Sci. Rev. 57, 58 (2002). In the 2016 presidential election, third-party candidates amassed nearly 5% of the nationwide popular vote. Fed. Election Comm’n, Official 2016 Presidential General Election Results, Jan. 30, 2017, available at https://www.fec.gov/ pubrec/fe2016/2016presgeresults.pdf. And contemporary opinion polls show that 42% of Americans—a record number—“eschew[] party labels” altogether, choosing instead to identify as “independents.” Jeffrey M. Jones, Record-High 42% of Americans Identify as Independents, Gallup (Jan. 8, 2014); see also Gallup Party Affiliation Historical Trends, http://www.gallup.com/poll/15370/ party-affiliation.aspx (last visited August 2, 2017).
2. Another factor influencing a voter’s choice is the particular candidates running for office.3 See J.S. App. 243a (Griesbach, J., dissenting). As human beings, candidates are not fungible. Each Republican candidate is different from every other Republican candidate,
3.  After all, if particular candidates did not matter, why would parties hold primary elections and nominating conventions? And why would candidates bother running a campaign at all?

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not to mention every other Democratic candidate. “[A] Republican in Massachusetts will be different from one in Utah,” just like candidates “from Milwaukee Democratic districts or suburban Waukesha County Republican districts” likely will hold “viewpoints further from the center” than candidates in other parts of the state. Id. at 287a (Griesbach, J., dissenting). Better candidates tend to attract more partisan and independent votes, and “particularly attractive candidate[s]” can even “lure voters across partisan lines.” Herrnson & Curry, supra, at 283. On the other hand, members of this Court have “dare sa[id] (and hope[d]) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold.” Vieth, 541 U.S. at 287.
Like a voter’s choice, a candidate’s strength depends on any number of interrelated factors. Perhaps the most significant factor is incumbency. Incumbents at all levels of government can “use the perks of office to build visibility among voters” and leverage “fundraising and organizational advantages” to win elections and discourage viable challengers in the first instance. See Herrnson & Curry, supra, at 283. Other influential factors, to name a few, include a candidate’s (1) available funds and ability to raise more, (2) campaign staff effectiveness, (3) ability to communicate and market, (4) stances on high-profile issues, and (5) personal and professional background. See, e.g., Vieth, 541 U.S. at 289. For the scandal-plagued politician or the adored athlete-turned-statesman, that last factor may dwarf the others. Consider, for example, former college-basketball star and Republican legislator Brett Davis, who first won Wisconsin’s 80th Assembly District in 2004 with nearly 49% of the district’s total vote. Then in 2008, when Barack Obama handily won Assembly

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District 80 in a historically successful Democratic year, Davis managed to retain his seat and actually increase his margin of victory to 56%. In fact, Davis outperformed Republican presidential candidate John McCain in that district by a wide margin.
Whatever the strengths and weaknesses of the candidates in a given race, other candidates on the same ballot can also impact a voter’s decision. The popularity of candidates in the ballot’s top races—in Wisconsin, either for President or Governor, depending on the year—can “influence whether voters support or oppose down-ballot candidates” belonging to a top-of-the-ballot candidate’s party.4 See Herrnson & Curry, supra, at 283. Because they happen to like the Democratic presidential candidate, for example, individuals may choose to vote for Democratic state legislative candidates. Further, the popularity or unpopularity of a party or top-of-the-ticket candidate may encourage higher overall voter turnout, resulting in a wave election carrying more of one party’s candidates to victory. On the flip side, researchers have found that some individuals prefer divided government and, to that end, intentionally split their ticket. Id. In short, individuals make choices in a given race based on the candidates in that race, as well as all the candidates running on the ballot.
3. When choosing who to vote for, individuals also take issues into account. Indeed, both aggregate and
4.  Ballot initiatives have a similar effect by “prim[ing] voters to use their positions on specific issues as guidance in candidate choice.” Jeremiah J. Garretson, Changing with the Times: The Spillover Effects of Same-Sex Marriage Ballot Measures on Presidential Elections, 67 Pol. Res. Q. 280, 281–82 (2014) (citations omitted).

10
individual-level studies “have demonstrated that issues salient to an individual voter are likely to influence his or her vote choice.” Herrnson & Curry, supra, at 284 (citations omitted). Although individuals may be misinformed or underinformed, they cast votes for candidates with stances on issues that (at least ostensibly) align with their own personal stances. To assume otherwise would contradict the Court’s “faith in the ability of individual voters to inform themselves about campaign issues.” Anderson v. Celebrezze, 460 U.S. 780, 797 (1983). One of the most contentious issues in recent Wisconsin history involved public-sector collective-bargaining rights and Republicanled efforts to limit them in 2011. Two Republican members of the Assembly—Lee Nerison and Travis Tranel—voted against the so-called Budget Repair Bill. Likely because of their willingness to cross party lines on this issue, they both held onto their seats in the next election in 2012, despite representing districts that overwhelmingly favored Barack Obama that same year.
Individual voters and candidates change their views on particular issues over time.5 So too do political parties change the issues they emphasize and their stances on them. Any high school history student knows how the American two-party system emerged shortly after the Revolution and has since evolved into our modern paradigm. And any astute adult observes how the Republican and Democratic parties shift their policy positions from election to election, sometimes trading sides completely. Herrnson and Curry relay how issue “ownership”—one party’s perceived ability to handle a
5.  Even Plaintiff Whitford testified that his own views change over time. Dkt. 147 at 39.

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certain issue better—and “salience[]” can both “change quite dramatically” over both the short term and long term because of new events, the parties’ positions, and the parties’ performance. Herrnson & Curry, supra, at 284. “In the 1930s,” for instance, “the Democrats owned issues related to the economy. Yet during the 1980s these issues were more strongly associated with the Republicans. By 2008, they were once again more favorably associated with the Democrats.” Id. (citations omitted).
4. Personal social networks influence electoral choices, too. These networks—family, friends, coworkers, and so on—have a “powerful effect” on who an individual chooses to vote for. Beck et al., supra, at 58. In fact, personal social networks appear to exert greater influence on individual electoral choice than either political parties or the mass media. Id. Yet an individual’s personal social network and party affiliation may be intertwined: a politically diverse network tends to reduce the significance of party affiliation, and vice versa. Herrnson & Curry, supra, at 283.
5. Importantly, the choice not to vote also affects election results. Regardless of party affiliation, individuals eligible to vote often choose not to. This choice manifests in two ways: individuals may cast votes in some of—but not all—the races on a ballot, or they may forego voting on that election day altogether. Either way, their nonvotes are effectively “votes” for nobody. In midterm election years, turnout in many states and districts struggles to eclipse 50%. For example, in Wisconsin in 2014, 54.84% of eligible voters cast a ballot (over 45% did not),6 meaning
6.  Wisconsin turnout statistics are available at the Wisconsin Elections Commission website, http://elections.wi.gov/electionsvoting/statistics/turnout (last visited August 2, 2017).

12
that in every district where both parties’ candidates received at least 9.7% of the vote, the winner was neither the Republican nor the Democrat—it was really the “nobody.”7 Even in presidential-election years when turnout is higher, about one-third of Wisconsin voters typically stay home, and many more vote in some races but not all of them. Compared to Wisconsin, moreover, most states have substantially lower turnout rates.8 And this is true despite how political campaigns expend substantial efforts and resources trying to boost voter turnout. E.g., John W. Schoen, Here’s What Clinton, Trump Spent to Turn Out Votes, CNBC (Nov. 7, 2016), https://www.cnbc. com / 2 016 / 11 /0 7/ here s -where - cl i nt on-t r u mp - sp ent - ontheir-ground-games.html.
* * *
As mentioned at the outset, choosing whether to vote and who to vote for involves weighing an infinite number of factors both consciously and intuitively. Beyond just the number and variety of factors that go into making an electoral choice, though, another complicating issue looms.
7.  Indeed, the winner is the “nobody” wherever the nonvoter total—45.16%—exceeds the total for any single candidate. The eligible-voter total (54.84%) less the nonvoter total (45.16%) equals 9.68%. If a Republican candidate receives 9.68%-plus-one (say, 9.7%), then the most a Democratic candidate could amass is 45.14%—too little to beat the “nobody.”
8.  National turnout statistics are available at the United States Elections Project website, http://www.electproject.org/home/voterturnout/voter-turnout-data (last visited August 2, 2017).

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At any given time, only particular individuals are aware of their respective preferences and how they will act on them. Put differently, “knowledge”—that particular personal knowledge of time and place—is distributed among individuals. See F.A. Hayek, The Use of Knowledge in Society, 35 The Am. Econ. Rev. 519, 519–20 (1945).9 Thus, particular individuals’ knowledge about the electoral-choice-influencing factors discussed above—whether they plan to vote, their current party affiliation, how warmly or coolly they feel about the parties, which candidates they prefer, which issues are most important to them, their stances on those issues, the unique aspects of their social networks, and so on—is, at any given time, necessarily distributed among those respective individuals. The qualifier “at any given time” matters, because regardless of whether knowledge may be discerned after the fact, individual preferences and external influences constantly change; for example, not only do the candidates (usually) change from election to election, but also an individual’s perception of those candidates may change from moment to moment. With knowledge being distributed and ever-changing, no one can ever completely and timely aggregate it; in Hayek’s words, “knowledge of the circumstances of which we must make use never exists in concentrated or integrated form, but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess.” Id. at 519. This scholarly conclusion jives with common sense, because at bottom, deciding whether to vote and who to vote for involves judgment and choice—not mere computation.
9.  Although Hayek was an economist by trade, the idea of distributed knowledge “arises in connection with nearly all truly social phenomena.” Hayek, supra, at 520, 528.

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II. Because it ignores how choice and change affect elections, Plaintiffs’ theory of the case fails conceptually and legally.
Plaintiffs’ arguments and evidence, largely accepted by the district court, lose sight of how choice and change affect elections. Instead, Plaintiffs focus exclusively on party affiliation, imprecisely extrapolated from election results. But treating voting behavior as a function of a single variable not only belies how human beings make decisions, it also leads to discord in Plaintiffs’ arguments that cannot be harmonized. Ultimately, Plaintiffs’ theory of the case falls on conceptual grounds, because it does not show that Democrats as such were gerrymandered; and on legal grounds, because the evidence presented begets an argument inconsistent with Equal Protection jurisprudence.
A. Plaintiffs’ theory of the case disregards the role of individual choice and change over time, rendering it conceptually untenable.
1. Plaintiffs’ arguments—and the evidence offered to support them—ignore how individual choice and change over time play a critical role in deciding election outcomes. Whereas individuals in reality make electoral choices for innumerable, interrelated reasons that vary by time and place, voters in the Plaintiffs’ world are the sum total of one trait: party affiliation. Indeed, Plaintiffs presume that “party affiliation is a readily discernable characteristic in voters and that it matters above all else in an election.” J.S. App. 242a (Griesbach, J., dissenting).

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Not only do Plaintiffs weigh party affiliation to the exclusion of all else, they also presume things about partisan voters that defy common sense and documented evidence. For one, Plaintiffs presume that individual voters and candidates never change their party affiliation, instead placing them “either in one party or the other based on their last vote.” J.S. App. 242a (Griesbach, J., dissenting). As discussed earlier, however, partisan voters change their party affiliation, both over the short term and long term; some vacillate regularly between party affiliations, and some shun party affiliation altogether. See supra pp. 4–7.
Plaintiffs further presume that individuals who identify with a particular party—both voters and candidates—are fungible. Presuming as much, though, ignores the diversity and nuance of a party’s adherents. If a (D) is a (D) is a (D), then there could be no difference in treatment between a Democrat who votes in every election and one who only votes sometimes, no difference between a hard-line Democrat and one who crosses the line for a Republican every few elections, and no difference between a Democratic candidate in a safe urban district and one in a swing district. Even so, Plaintiffs assume that all Democratic Assembly candidates—even the ones they do not personally vote for—are interchangeable, and that if a certain number of them are elected, then Plaintiffs will see their policy objectives enacted into law. But recent experience mocks such fantasies: if party adherents were truly fungible, then Republicans would have repealed and replaced the Affordable Care Act months ago. In reality, “the (R) next to a candidate’s name does not mean he will vote the same as the Republican candidate in the next district” or in the way a particular Republican voter would prefer. J.S. App. 286a–87a (Griesbach, J., dissenting).

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Making Plaintiffs’ assumptions about party affiliation is like assuming that every person who cheers for the Green Bay Packers is from Wisconsin. While it is true that most Wisconsinites support the Packers and that many Packers fans are from Wisconsin, Packer-backers in fact hail from across the country and around the world. Even those who typically despise the Pack—Chicago Bears fans, for instance—might realign when the Packers face a common rival—say, the Minnesota Vikings. Of course, as soon as Green Bay routs the Vikings, those Chicago defectors immediately resume their exclusive adoration for the Bears. It might also be the case that a particular player (like Aaron Rodgers) temporarily attracts more non-Wisconsin fans due to his performance on the field or his charm off of it. And a Chicago mechanical engineer who moves north to take a job at Mercury Marine in Fond du Lac—in Assembly District 52—might eventually back a new team. An NFL fan’s support for one franchise is not immutable, nor are all a team’s fans fungible. When choosing which team to root for in a particular game, fans take a variety of factors into account and might even choose fleetingly or forever to pick a team they once cheered against. Looking only at which team a fan chose in the last game she watched—like placing an individual “either in one party or the other based on their last vote,” J.S. App. 242a (Griesbach, J., dissenting)—often shines little or no light on her past and future preferences.
By fixating solely on party affiliation, moreover, Plaintiffs discount all the other innumerable factors that individuals balance when making electoral choices. For one, Plaintiffs neglect how individuals consider the particular candidates running. This neglect not only ignores an important aspect of electoral decisionmaking,

17
it also leads to unwarranted assumptions about a voter’s motives and future behavior: because he voted for a Democrat in this election, he therefore is a Democrat; and because party affiliation is immutable, he must therefore prefer Democrats in all elections. But it is both unfair and factually suspect to assume that an individual who votes for a candidate supports that candidate’s party or all that party’s candidates:
In fact, it is not difficult to imagine some voters preferring a result opposite of [this] assumption. Although there are thousands of die-hard party members like Plaintiff Whitford in both parties, many voters are not quite so committed. A given voter might like an incumbent Republican in his own district, even if that voter leans Democratic in other respects, and so such a voter will vote for the Republican assembly candidate even while preferring that his vote does not translate into additional Republican seats in the assembly.
J.S. App. 292a (Griesbach, J., dissenting). Plaintiffs also ignore how individuals make choices based, at least in part, on the issues of the day, the influence of personal social networks, and any number of other factors. Perhaps more than anything, Plaintiffs disregard the choice not to vote: at no point below did Plaintiffs or the district court examine voter turnout or its potential effect on partisangerrymandering claims. Ignoring the choice not to vote hardly seems excusable when one-quarter to one-half of Wisconsinites routinely forgo the franchise.

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2. Plaintiffs’ disregard of choice and change is reflected in the evidence they presented. To show that Act 43 unconstitutionally “burden[ed]” their “representational rights,” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 418 (2006) (Kennedy, J.) (“LULAC”), Plaintiffs below relied heavily on election results from 2012 and 2014. See J.S. App. 145a–54a. These results formed Plaintiffs’ primary evidentiary basis both by themselves and as input for statistical analyses performed by expert witnesses. Among other things, Plaintiffs compared the number of votes for Republican Assembly candidates (and Democratic candidates) to the number of Republican Assembly seats (and Democratic seats). Id. Through expert witnesses, they introduced S-curves, swing analyses, and the efficiency gap.
S-curves and swing analyses “depend on a hypothetical state of affairs” and “assume a uniform increase or decrease in vote share across all districts,” something the district court readily admitted “does not occur in actual elections.” Id. at 158a. A swing analysis, for example, looks at “what might happen under different electoral conditions.” J.S. App. 148a (internal quotation omitted). To that end, it estimates the number of Assembly seats gained or lost given a “pro-Democratic swing or a pro-Republican swing” in the statewide vote total. Id. Yet whatever its ability to forecast relationships between statewide votes and Assembly seats, it offers no insight into why more or fewer individuals chose to vote for Democrats or Republicans. Nor could it ever capture changes in party platforms, candidates, issues, or any of the other numerous factors individuals consider when choosing to vote for one party’s candidate over the other. Further, S-curves, swing analyses, and the efficiency gap deal only with one

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office at a time, such as the Assembly. Yet except in special elections, individuals do not vote for Assembly members in a vacuum; they vote for them on ballots that include races for many other offices. As discussed above, those other races—especially high-profile ones—often impact the entire ballot. See supra pp. 7–9.
The efficiency gap—Plaintiffs’ hallmark piece of evidence—actually scoffs at an individual’s role in a representative democracy. See J.S. App. 160a– 61a. Foremost, by declaring certain votes to be “wasted,” the efficiency gap relegates votes to the status of mere refuse. Yet, as Judge Griesbach pointed out below, all these “wasted” votes will likely have a tremendous impact on how legislators govern and future candidates campaign. Id. at 287a–88a (Griesbach, J., dissenting). The efficiency gap, moreover, treats all individuals who voted for a Democratic (or Republican) candidate the same, regardless of their reason for doing so or their propensity to do so again in the future. So too does it fail to capture partisan defectors, swing and split-ticket voters, thirdparty voters, and all other species of independent voters. And, of course, it completely ignores the many, many individuals who choose not to vote.
In general, statistical measures purporting to measure human behavior fail to capture just how much of a role choice and change play in that behavior. Because such measures are constructed entirely from manifestations of conscious choices (here, votes), every datum is infected with the innumerable variables discussed above. In other words, each input is complex, uncertain, and (to use the terms from before) individual knowledge. But this kind of knowledge “by its nature cannot enter into statistics”

20
and therefore cannot “exist[] in concentrated or integrated form.” Hayek, supra, at 519, 524. Applied here, the knowledge of individual preferences informing electoral choices always remains distributed, and statistical tools attempting to measure those choices writ large will always jettison nuance and hide crucial insights.10 These “[s]tatistical aggregates . . . show a very much greater stability than the movements” and changes of the individual inputs making up those aggregates. Id. at 523–24. That is, by failing to account for individual choice and change over time, measures of partisan symmetry like the efficiency gap, partisan bias, and others appear more stable and reliable than the individual voters making up those aggregated measures actually are.
3. Plaintiffs’ disregard of individual choice and change over time upends their theory of the case. Plaintiffs pressed, and the district court adopted, a three-element test for partisan-gerrymandering claims: a redistricting plan is unconstitutional if it “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” J.S. App. 109a–10a. Restated, a plaintiff must prove discriminatory intent, discriminatory effect, and lack of justification. Whatever the legal validity of these elements, Plaintiffs’ arguments and evidence do not satisfy them.
10.  Taken to its logical conclusion, then, this means that partisan-gerrymandering cases are nonjusticiable: trying to find a “limited and precise” standard, Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment), presents a “problem of the utilization of the knowledge not given to anyone in its totality,” Hayek, supra, at 520. At the very least, the reality of distributed knowledge counsels judicial restraint.

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For the discriminatory-intent element, Plaintiffs focus on how Republicans in the state legislature set out to draw a map that would maintain for them a “comfortable majority” in the Assembly. See J.S. App. 126a–40a. They intentionally drew a map that would favor Republicans and prevent Democrats from achieving or even approaching a majority of Assembly members. See id. In other words, so Plaintiffs’ theory goes, the Republicans’ map attempted to stymie the ability of Democratic candidates to win Assembly seats; it was intended to discriminate against Democratic Assembly members and candidates.
To prove discriminatory effect, Plaintiffs use afterthe-fact election results. See id. at 145a–66a; see supra pp. 18-20. On their own and as part of statistical analyses, these results supposedly show how the maps accomplished the Republicans’ goal of minimizing the number of Democratic seats (at least as compared to statewide vote totals) by diluting the voting strength of Democrats. Put differently, they showed that Democrats were gerrymandered. But not so fast. Election results do not reflect how many Democrats voted, or which candidates Democrats voted for, or in what numbers. Rather, they only show how many votes were cast for the Democratic candidate. Plaintiffs’ evidence thus at best shows a discriminatory effect against individuals who voted for Democratic candidates. Yet such an effect rings dissonantly with the discriminatoryintent prong, under which Plaintiffs argue that the map’s intent was to discriminate against Democratic Assembly members and candidates. Of course, Democratic Assembly members and candidates are not the same as individuals who voted for Democratic candidates; assuming otherwise, as Plaintiffs do, spurns individual choice entirely. Showing a discriminatory intent to harm Democratic candidates

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and Assembly members does not inherently relate to a discriminatory effect against individuals who chose to vote for Democratic candidates—nor have Plaintiffs or the district court adequately explained how the two are connected.
This disconnect is evident from another angle. Plaintiffs frame their case as one of discriminatory intent and effect against “Democrats.” See, e.g., JA36, 42. Logically, then, Plaintiffs would have to identify the number and location of Democrats across different districts, both before and after Act 43. But Plaintiffs do not do so. They presented no evidence below of party identification or membership in Wisconsin, likely in part because Wisconsin has open primaries and does not require voters or nonvoters to record their party affiliation. J.S. App. 242a n.3 (Griesbach, J., dissenting); see Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 110–11 (1981). Plaintiffs instead rely on the number and location of votes for Democratic candidates. As explained above, however, vote totals do not account for (1) non-Democrats (including Republicans, third-party voters, and independents) who voted for the Democratic candidate, or (2) Democrats who did not vote for the Democratic candidate (either because they voted for a non-Democratic candidate or did not vote at all).11 By focusing on only the macro level and overlooking
11.  Plaintiffs’ use of two sets of election results (2012 and 2014) does not salvage their case: if each set of vote totals presents uncertainty on its own, putting them together cannot remedy that uncertainty. Further, that the two sets are somewhat different—both in raw numbers and when statistically analyzed—in fact undermines Plaintiffs’ theory. Adhering to Plaintiffs’ theory, under which the only possible variables are party affiliation and the map, would require (indeed, demand) only one set of election results.

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individual-level choice, Plaintiffs erroneously equate Democrats (who they say are harmed) with individuals who once chose to vote for a Democratic candidate in one election (who are used as evidence to prove the alleged harm).12
Imagine a hypothetical District A, the 100,000 votingeligible residents of which vote in one assembly election as follows: 29,000 (R); 25,000 (D); 1,000 (other); 45,000 (no vote cast). According to Plaintiffs’ theory, the 25,000 votes for the Democratic candidate all factor identically into the calculus of assessing a partisan-gerrymandering claim. Yet suppose, as is entirely possible in reality, that only 20,000 of those votes were cast by “Democrats” in any meaningful sense of that word. The other 5,000 were the votes of defecting Republicans or true independents. Through that lens, things change: regardless of whether those 5,000 voters suffered harm, they did not suffer harm as Democrats.
The District A results also do not show that 25,000
12.  Indeed, that reflection is limited to one particular election, even where the results of multiple elections are available. We may know that, in a given district, 10,000 individuals voted for the Democratic candidate in 2012, and that 10,000 individuals voted for the Democratic candidate two years later. While likely true that a sizeable majority of those 10,000 votes in 2014 were cast by the same individuals as in 2012, we cannot be sure. There is no evidence one way or another. And it is nearly impossible that all those 10,000 individuals are the same, especially when we factor in those who, in between election years, moved out of the district and into the district, those who died, and those who became eligible to vote. All this, of course, does not even begin to address the role of individual choice and change over time.

24
Democrats voted in the election; instead they merely show that 25,000 individuals voted for the Democratic candidate. Anywhere from 0 to 55,000 Democrats may have voted. And this does not even touch the number of Democrats who stayed at home that day; as mentioned, Plaintiffs especially disregard the choice not to vote. For Plaintiffs’ theory to carry the day, we must assume that even if the other 45,000 nonvoters had showed up, the same candidate would still have been elected—a highly conjectural proposition by any standard. Finally, suppose that 30,000 of the 45,000 nonvoters were Democrats, meaning that the district was drawn with 50,000 Democrats in it—half the population. It would be absurd, then, to say that the way the district was drawn harmed Democrats.
4. Importantly, Badger State political history buttresses the above hypothetical demonstration with real-world experience, further revealing the fundamental flaws in Plaintiffs’ theory. To start, take Tommy Thompson, a Republican first elected Governor of Wisconsin in 1986. Widely popular, Thompson went on to win the governorship three more times in 1990, 1994, and 1998 by wide margins. Then in 2001, Thompson went to Washington in the middle of his term to become George W. Bush’s Health and Human Services Secretary, leaving in his place Lieutenant Governor Scott McCallum. Democratic State Attorney General Jim Doyle—who had crushed his Republican opponent in 1998, the same year and on the same ballot that Thompson easily beat Democratic challenger Ed Garvey—defeated McCallum in 2002 and won a second term as Governor in 2006. Later, fourteen years after his last electoral victory (when he had secured nearly 60% of the statewide vote), Thompson vied for a U.S. Senate seat. Despite having won four

25
consecutive statewide elections in the late 1980s and the 1990s, Thompson lost. Instead, Democratic candidate Tammy Baldwin, a progressive from Madison, won the 2012 Senatorial election by almost six points.
Another left-leaning U.S. Senator from Wisconsin was Russ Feingold. After defeating a Republican incumbent in 1992, Feingold ran for reelection and won in 1998—again, the same year Tommy Thompson trounced a Democratic opponent in the statewide race for Governor. After winning a third term in 2004, Feingold was eventually unseated in 2010 by Republican businessman Ron Johnson. In a rematch six years later, Johnson edged Feingold once again.
Drilling down further, in the 2012, 2014, and 2016 general elections, a total of 15 separate legislative districts chose a top-of-the-ticket candidate (for President or Governor) from one party and a legislative candidate from the other. Also in 2016, three Republican and two Democratic Assembly candidates prevailed in districts where the other party’s presidential candidate won the day. Republicans Dale Kooyenga, Jim Ott, and Todd Novak won the 14th, 23rd, and 51st Assembly Districts, respectively, even though Hillary Clinton defeated Donald Trump in each. Going the other direction, Democrats Beth Meyers and Steve Doyle won seats in districts carried by Trump (the 74th and 94th). In the 30th Senate District, Democrat Dave Hansen prevailed, while Donald Trump defeated Hillary Clinton by a margin of 52.1% to 41.6%.
Similar results occurred in 2014, when three Assembly districts and one Senate district picked legislative and gubernatorial candidates from opposite parties, and in

26
2012, when eight Assembly districts split their legislative and presidential outcomes. For a particularly striking example, consider how in 2012, Republican candidate Howard Marklein won the 51st Assembly District—in the same place and on same day that Barack Obama outcompeted Mitt Romney by a margin of 19.4%. Finally, individual Assembly seats have switched parties, too. Take the 70th Assembly District: in 2012, incumbent Democrat Amy Vruwink beat Republican challenger Nancy VanderMeer. Just two years later—with the same Act 43 map in place—those candidates faced off again. This time, however, VanderMeer emerged victorious.
Under Plaintiffs’ theory of the case, none of these electoral results should have happened—they are all anomalies. Yet the disconnect between reality and Plaintiffs’ imagined world comes as no surprise given how Plaintiffs build their theory on after-the-fact election results. Looking at only election results and statistical analyses derived from them, it is impossible to know how many Democrats or Republicans reside in particular geographical areas. Assuming otherwise, as Plaintiffs do, logically defies these numerous Wisconsin electoral outcomes.
For example, we know that Republican gubernatorial candidate Tommy Thompson received more votes than the Democratic candidates in 1986, 1990, 1994, and 1998. Plaintiffs’ theory of the case—under which immutable, fungible party adherents vote for immutable, fungible candidates—would dictate that all those who once voted for a Republican candidate will always vote and will always vote for the Republican. Yet we know that when Thompson sought to win a statewide race again in 2012,

27
the Democratic candidate won. Election results—mere vote totals—do not explain why this happened. Beyond political speculation, we do not know why Thompson failed to generate the same enthusiasm in 2012 as he did in the 1980s and 1990s. Likewise, we do not know how many voters crossed party lines to vote for Thompson (R)—or for Doyle (D) or Feingold (D)—on the same ballot in 1998. We do not know if Thompson’s and Feingold’s victories resulted from party unity, candidate strength, dissatisfaction with the opposition, or any number of other reasons. Nor do we know if their subsequent defeats reflected changes in party affiliation, evolution of public opinion, effects of voter turnout, or some other confluence of factors. To be sure, innumerable explanations could account for these outcomes.
Election results similarly fail to explain why Assembly districts won by Barack Obama in 2012 also elected Republican legislators that year and in subsequent years. Maybe some traditionally Republican voters stayed at home in 2012 because the Republican presidential candidate did not excite them. Maybe more independents approved of Barack Obama’s first-term performance than those who disapproved. Or maybe traditionally Democratic voters chose to defect in 2016 because Republican candidates emphasized issues important to them. Election results, moreover, do not illuminate the choices made by those individuals in districts that selected one party’s candidate at the top of the ticket but the other party’s candidate in the Assembly race.
Finally, Plaintiffs’ theory of the case cannot explain why Donald Trump won 22 Wisconsin counties in 2016 that Barack Obama won four years earlier. What is more,

28
in the span of just eight years, “13 counties in Wisconsin . . . voted for Obama twice [in 2008 and 2012], Gov. Scott Walker three times [in 2010, 2012 (recall), and 2014], Trump [in 2016], Senate Democrat Tammy Baldwin in 2012 and Senate Republican Ron Johnson in 2016.” Craig Gilbert, Difference-Makers in Trump’s Wisconsin Win, Milwaukee Journal Sentinel (Nov. 15, 2016, 11:14 AM), http: // w w w.json l i ne.com /st or y/new s / blog s / w i sconsi nvoter/2016/11/12/difference-makers-trumps-wisconsinwin/93720426/. These results, again, defy Plaintiffs’ implicit assumption that only party affiliation determines electoral outcomes.
All in all, Plaintiffs’ reliance on election results and statistical measures conceals partisan defectors, independent voters and, critically, nonvoters. Although Plaintiffs, witnesses, and the district court speak of “Democrats” and “Republicans,” those descriptors are far from accurate. What election results—and all statistical analyses built from them—actually reflect are individuals who chose to vote for a Democratic candidate in that particular election. This common-sense distinction gets lost if not reinforced: Democrats, Democratic candidates, and individuals who choose to vote for Democratic candidates are not synonymous. Plaintiffs’ failure to recognize this distinction—a symptom of their disregard for individual choice and change over time—exposes conceptual cracks in their theory of the case.

29
B. Neglecting the role of choice—particularly the choice not to vote—runs counter to this Court’s Equal Protection jurisprudence.
The Equal Protection Clause guarantees “equal representation for equal numbers of people.” Evenwel v. Abbott, 136 S. Ct. 1120, 1129 (2016) (quoting Wesberry v. Sanders, 376 U.S. 1, 18 (1964)) (italics removed). To that end, this Court requires states to draw legislative districts that satisfy two requirements. First, under what is known as the “one-person, one-vote” requirement, populations of the districts must be as close as practicable. See, e.g., Evenwel, 136 S. Ct. at 1123–24. Second, a state must also ensure that its districting plan does not “minimize or cancel out the voting strength” of minority individuals. Fortson v. Dorsey, 379 U.S. 433, 439 (1965).
When the Court has found that a redistricting plan deviates from Equal Protection parameters, it has generally measured deviation by total population or voting-eligible population. In the one-person, one-vote cases, this Court has “consistently looked to totalpopulation figures when evaluating whether districting maps violate the Equal Protection Clause by deviating impermissibly from perfect population equality.” Evenwel, 136 S. Ct. at 1131. When challengers in Evenwel urged a standard requiring states to base their redistricting plans on voting-eligible population, the Court examined constitutional history and prior precedent. Id. at 1123, 1126–32. Finding no “voter-equality mandate in the Equal Protection Clause,” the Court upheld all fifty states’ use of total population figures. Id. at 1126, 1130 (emphasis added). Slightly differently in the minority-gerrymandering cases, the Court has typically scrutinized districting plans based

30
on voting-eligible population. E.g., Cooper v. Harris, 137 S. Ct. 1455, 1463, 1465 (2017) (black voting-age population); Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 795 (2017) (same). These two lines of cases, which make use of total population or voting-eligible population, show that measuring conformity with Equal Protection standards does not depend on whether individuals in a district actually choose to vote or who they vote for.
Only under exceptional circumstances has this Court sanctioned a state’s use of registered-voter or actualvoter population to draw districts. Burns v. Richardson, 384 U.S. 73, 92–96 (1966). In Burns, Hawaii drew its districts based on registered-voter numbers. Id. at 90. Reviewing the plan, this Court found using a “registered voter or actual voter basis . . . problem[atic],” because it “depends not only upon criteria such as govern state citizenship, but also upon the extent of political activity of those eligible to register and vote.” Id. at 92. Both bases are thus “susceptible to improper influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process, or perpetuate a ghost of prior malapportionment.” Id. at 92–93 (internal quotation omitted). Despite its concerns, however, the Burns Court upheld Hawaii’s redistricting plan “only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.” Id. at 93. Indeed, Hawaii had introduced evidence proving that, given its unique population characteristics, registered-voter population was an adequate proxy for total population. Id. at 93, 95– 96. The Court cautioned that it was “not to be understood as deciding that the validity of the registered voters basis as a measure has been established for all time or

31
circumstances, in Hawaii or elsewhere.” Id. at 96. Only where unique population characteristics are present and it is proven to be an adequate proxy will registered-voter population or actual-voter population be a permissible basis.
Using total population or voting-eligible population— and generally rejecting registered-voter and actual-voter population—finds theoretical support in the nature of the representation right. As mentioned, this Court has interpreted the Equal Protection Clause as protecting “equal representation for equal numbers of people.” Wesberry, 376 U.S. at 18. Gleaning from constitutional history, the Court recently noted that the drafters of both the original Constitution and the Fourteenth Amendment understood that population—not the ability to vote—formed the “basis of representation.” Evenwel, 136 S. Ct. at 1127. Thus, all individuals enjoy the right of representation—not just those who choose to vote.
By ignoring the choice not to vote, however, Plaintiffs— and the district court—have mischaracterized the representation right and adopted an impermissible population measure. As discussed above, Plaintiffs’ case revolves around vote totals in past (and forecast) elections. See supra pp. 18-20. In other words, Plaintiffs focus on actual-voter population to prove their claim that a certain group (Democrats), the actual size of which is unknown in any particular district, was impermissibly cracked and packed. When discussing partisan intent, the district court relayed how Republican staffers took partisan past performance into account when drawing their maps; the staffers and the district court both referred to actual votes in past elections. See J.S. App. 126a–29a. Later, when assessing discriminatory effect, the district court relied

32
on “the combination of the actual election results for 2012 and 2014,” (i.e., actual votes), the experts’ swing analyses, and the efficiency gap. Id. at 145a–46a. The efficiency gap, in turn, is a calculation based on actual votes cast. Id. at 160a–61a. Importantly, the district court did not merely reflect upon actual voters; actual-voter data was the only evidence presented and considered. Accordingly, the district court assessed the constitutionality of the Act 43 districting plan using an actual-voter population measure.
But as stated earlier in this subsection, caselaw rejects this approach. Neither the total population measure (used in the one-person, one-vote context) nor the voting-eligible population measure (used in minority-gerrymandering cases) treats individuals differently based on any choices they make. Actual-voter population, by contrast, excludes all individuals who chose not to vote. Thus, Plaintiffs’ selected measure—unlike any measure endorsed by the Court under normal circumstances—treats individuals who choose to vote differently from those who choose not to. In effect, the actual-voter population measure assumes that only those who choose to vote have any representation rights. Yet that cannot be so, because “[a]s the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.” Evenwel, 136 S. Ct. at 1132. Those who choose not to vote should not be expressly or implicitly assigned lesser value in a representative democracy; just like voters, they too “have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies.” Id. Nor can Plaintiffs find any salvation in Burns, for unlike in that case, Plaintiffs here put forth no evidence showing exceptional

33
circumstances or how actual-voting population serves as an adequate proxy for voting-eligible or total population.13
CONCLUSION
As shown above and as a matter of common sense, an individual’s vote in an election—for a particular candidate or for nobody—is an expression of choice. But Plaintiffs’ theory of the case suggests otherwise: it assumes that party affiliation is the only factor influencing election results, that party affiliation is immutable, and that voters and candidates are fungible.
By overlooking individual choice and change over time, and by relying solely on election results and statistical measures interpreting them, Plaintiffs fail to account for electoral results that repeatedly buck their assumptions. According to Plaintiffs’ arguments and evidence, Assembly members Todd Novak, Travis Tranel, Lee Nerison, Steve Doyle, and others should not now be serving in the state legislature. Indeed, in 2012, Republican Lee Nerison won the 96th Assembly District with 59.5% of the vote despite the fact that Barack Obama carried that district with 55.5% of the vote. That same day, Republican Travis Tranel earned 54.2% to carry the 49th Assembly District; Obama won there with 56.2%. These outcomes—not to mention the experiences of Tommy Thompson, Russ Feingold, Nancy VanderMeer, and so many more—torpedo Plaintiffs’ theory of the case.
13.  One might counter that Plaintiffs and the district court had no choice but to use actual-voter population, because it is the only available measure of party affiliation. That counter fails. Actual-voter population does not actually measure party affiliation; it measures who voted for Democratic or Republican candidates, not who is a Democrat or a Republican.

34

Beyond fixating on party affiliation in an unrealistic way, Plaintiffs’ theory also assigns zero value to individuals who choose not to vote. But voting is not the sine qua non of personhood: the decision not to vote— out of apathy, dissatisfaction, or active rejection of the candidates or the system—is just as important as choosing which candidate to vote for. Perhaps ironically, many of the tossed-aside nonvoters may be Democrats. Yet to determine whether Democrats have been gerrymandered, it would be conceptually and legally necessary to consider all Democrats—not just those who have voted. Likewise, it would be imperative to differentiate between Democrats (if we could determine who they are) and individuals who voted for Democratic candidates. Plaintiffs’ theory, however, does neither.

This Court should thus reverse the judgment below.

Respectfully submitted,
Jordan C. Corning Counsel of Record
Eric M. McLeod Joseph S. Diedrich Husch Blackwell LLP 33 East Main Street, Suite 300 Madison, WI 53703 (608) 234-6123 jordan.corning@huschblackwell.com

August 4, 2017

Counsel for Amicus Curiae

 
 No. 16-1161
In the Supreme Court of the United States
BEVERLY R. GILL, ET AL., Appellants,
v. WILLIAM WHITFORD, ET AL.,
Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF THE PLAINTIFFS IN THE MARYLAND REDISTRICTING LITIGATION,
BENISEK v. LAMONE (FORMERLY SHAPIRO v. McMANUS), AS AMICI CURIAE SUPPORTING NEITHER PARTY
MICHAEL B. KIMBERLY Counsel of Record
PAUL W. HUGHES Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3000 mkimberly@mayerbrown.com
Counsel for the Amici Curiae

i
TABLE OF CONTENTS
Table of Authorities.................................................... ii
Interest of the Amici and Summary of the Argument .........................................1
Argument .....................................................................4
A. Single-district partisan gerrymandering claims are justiciable under the First Amendment retaliation doctrine......................5
B. Amici’s evidence of unlawful First Amendment retaliation in Maryland’s 2011 redistricting is compelling.....................13
C. The Court should not pass upon the justiciability or merits of any claim not before it ...........................................................15
Conclusion .................................................................17

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TABLE OF AUTHORITIES
Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015)........................................2, 7
Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................10
Baker v. Carr, 369 U.S. 186 (1962)............................................6, 7
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)................................................8
Davis v. Bandemer, 478 U.S. 109 (1986)........................................3, 7, 8
Elrod v. Burns, 427 U.S. 347 (1976)................................................9
Hartman v. Moore, 547 U.S. 250 (2006)..............................................10
INS v. Chadha, 462 U.S. 919 (1983)................................................7
LULAC v. Perry, 548 U.S. 399 (2006)............................................4, 8
Nixon v. United States, 506 U.S. 224 (1993)................................................6
Pleasant Grove City v. Summum, 555 U.S. 460 (2009)................................................8
Reynolds v. Sims, 377 U.S. 533 (1964)....................................9, 10, 16

iii
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974)................................................5
Shapiro v. McManus, 136 S. Ct. 450 (2015)....................................1, 4, 17
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) .............. passim
Sims v. Apfel, 530 U.S. 103 (2000)..............................................16
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)............................................8
Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000)................................11
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)................................................9
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)................................................6
Vieth v. Jubelirer, 541 U.S. 267 (2004).......................................4-7, 10
Warth v. Seldin, 422 U.S. 490 (1975)............................................6, 9
Zherka v. Amicone, 634 F.3d 642 (2d Cir. 2011) .............................7, 11
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012)............................................6, 7

INTEREST OF THE AMICI AND SUMMARY OF THE ARGUMENT
Amici are seven individual plaintiffs litigating a First Amendment retaliation challenge to the partisan gerrymander of a single federal congressional district in Maryland in 2011. Amici’s case was considered by this Court two Terms ago, when the Court held that their First Amendment retaliation claim is a colorable one that should have been referred to a three-judge district court. Shapiro v. McManus, 136 S. Ct. 450 (2015) (Shapiro I).1
The three-judge panel convened pursuant to this Court’s remand instructions subsequently held that amici had stated a justiciable partisan gerrymandering claim under the First Amendment. Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (Shapiro II). The court held, more specifically, that the First Amendment forbids a State from purposefully diluting the weight of particular citizens’ votes
1 The authors of this brief are partners in the Washington, D.C. office of Mayer Brown LLP and serve as pro bono counsel to amici in their challenge to the 2011 Maryland congressional redistricting in Benisek v. Lamone, No. 13-cv-3233 (D. Md.), formerly captioned Shapiro v. McManus. Michele Odorizzi, a partner in the Chicago office of Mayer Brown LLP, is among the counsel representing Plaintiffs in this case. Ms. Odorizzi has had no personal involvement in amici’s lawsuit in Maryland or the drafting or filing of this brief. Conversely, the authors of this brief have had no prior involvement in Plaintiffs’ lawsuit in Wisconsin. No person or entity other than amici and their counsel made a monetary contribution to this brief’s preparation or submission. Pursuant to Rule 37, letters of consent from the parties have been filed with the Clerk. Amici, by name, are O. John Benisek, Edmund Cueman, Jeremiah DeWolf, Charles W. Eyler Jr., Kat O’Connor, Alonnie L. Ropp, and Sharon Strine.

2
because of those citizens’ voting histories and party affiliations. Id. at 595-598. On the question of injury, the court concluded that a plaintiff must show that the challenged redistricting plan diluted the votes of the targeted citizens to such a degree that it resulted in a concrete burden—just as is required in any other First Amendment retaliation case. It is not enough, in other words, to prove vote dilution in the abstract, using statistical measures; rather, the deliberate dilution of voter strength must make a practical difference, such as when it changes the outcome of an election. Id. at 596-597. Cf. Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015) (“the harms that underlie a racial gerrymandering claim” include “being represented by a legislator” who does not represent the targeted voters’ interests).
In the time since, the case has been re-captioned Benisek v. Lamone, and amici have been engaged in discovery concerning their First Amendment retaliation claim. The evidence shows overwhelmingly that those responsible for Maryland 2011 redistricting singled out Republicans in Maryland’s former Sixth District for disfavored treatment because of their past voting histories and affiliation with the Republican Party. It also shows that the gerrymander worked, changing the outcomes of the elections in 2012 onward, precisely as intended.
Unlike amici’s case in Maryland, Plaintiffs’ claim in this case challenges Wisconsin’s state legislative map on a statewide basis under the Equal Protection Clause. And Defendants’ principal argument on appeal is that “plaintiffs in a political-gerrymandering case lack standing to bring a statewide challenge.” Appellants’ Br. 28. Analogizing to this Court’s racial

3
gerrymandering cases, they argue that plaintiffs in partisan gerrymandering cases “could only possibly have standing to challenge their own districts, based upon an allegation that their legislature’s treatment of that district’s lines caused them individualized harm.” Ibid.
Amici take no position on the merits of that argument, except to say that if the Court agrees with Defendants, it would not bar amici’s case in Maryland, which is a single-district challenge involving a claim of individualized harm.
Defendants initially took their argument a step further, however, posing the question whether partisan gerrymandering claims are justiciable as a categorical matter (J.S. i) and asserting that “this Court should hold that partisan-gerrymandering claims are nonjusticiable” altogether, presumably including amici’s single-district First Amendment claim in Maryland (J.S. 40). In their principal merits brief (at 36), Defendants have hedged, inviting the Court to “hold that political-gerrymandering claims are nonjusticiable,” but only “for statewide claims.” Defendants insist that, in the years since Bandemer, “no litigant has identified” any “comprehensive and neutral principles” for adjudicating partisan gerrymandering claims. Ibid. Defendants thus describe “continued litigation on this question” to be “futil[e]” (id. at 37) and “fruitless” (id. at 23).
In making such broad pronouncements on the justiciability of partisan gerrymandering claims, Defendants do not address the district court’s thorough and thoughtful opinion on justiciability in amici’s case in Maryland. Because amici are pressing a single-district, individualized-injury gerrymandering claim—one that suffers from none of the

4
purported infirmities of the statewide claim at issue here—they have an interest in ensuring that the Court’s consideration of the questions presented is fully informed. Amici take no position on the justiciability or merits of Plaintiffs’ very different “partisan asymmetry” theory. They write only to stress that the Court, in addressing those issues, should be aware of (and endeavor not to prejudge) amici’s very different First Amendment retaliation claim.
ARGUMENT
In their last two cases addressing partisan gerrymandering, the Justices of this Court identified two conceptually distinct possibilities for solving gerrymandering’s justiciability problem.
First, in Vieth v. Jubelirer, 541 U.S. 267 (2004), Justice Kennedy expressed interest in the First Amendment retaliation doctrine, according to which citizens’ “First Amendment interest [in] not [being] burden[ed] * * * because of their participation in the electoral process” is violated when a redistricting map “has the purpose and effect of burdening a group of voters’ representational rights” by reason of their voting histories and political-party affiliations. Id. at 314. This approach to partisan gerrymandering turns on citizens’ past conduct alone and is most naturally litigated on a single-district basis. It is the theory presented in amici’s lawsuit in Maryland and remains “uncontradicted” by any of this Court’s cases. Shapiro II, 203 F. Supp. 3d at 586 (quoting Shapiro I, 136 S. Ct. at 456).
Second, in LULAC v. Perry, 548 U.S. 399 (2006), some Justices expressed interest in the concept of partisan asymmetry (see, e.g., id. at 466 (Stevens, J., concurring in part and dissenting in part)), which is “the concept at the heart of [the Wisconsin] litiga-

5
tion” (Mot. to Affirm 5). As the Court knows from the parties’ briefing in this case, partisan symmetry is rooted in the Equal Protection Clause and reflects the view that a redistricting plan should treat the major political parties symmetrically with respect to the conversion of votes to seats. There are numerous statistical methods for measuring partisan asymmetry, including “partisan bias” and the “efficiency gap.” But no matter its measure, partisan asymmetry depends on the idea that gerrymandering “is inherently a statewide activity” and is best adjudicated “on a statewide basis.” Mot. to Affirm 4.
Defendants, for their part, have asked this Court to address the justiciability of partisan gerrymandering claims writ large (J.S. 40), or perhaps only with respect to statewide claims (Appellants’ Br. 36). Either way, this case presents no occasion to pass upon the justiciability of the single-district, First Amendment retaliation claim at issue in amici’s lawsuit. Defendants’ brief cites the Maryland court’s ruling on justiciability just once, and then only in passing. See Appellants’ Br. 34 (citing Shapiro II). And it would not be reasonable to expect Plaintiffs to defend a legal theory that is not presented in their complaint. Because the Court should not address the justiciability of claims not before it, the Court should not reach the fifth question presented in Defendants’ jurisdictional statement.
A. Single-district partisan gerrymandering claims are justiciable under the First Amendment retaliation doctrine
1. The starting point for all federal lawsuits is “the concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the ‘case or controversy’ requirement of

6
[Article] III.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). Relevant here is the arm of the justiciability inquiry known as the political question doctrine.
The Court has emphasized two circumstances implicating the “narrow” political-question exception: those in which there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department” and those in which there is “a lack of judicially discoverable and manageable standards for resolving [the controversy].” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)).
The second circumstance is the one at issue in partisan gerrymandering cases like this one. It turns on the notion that “law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.” Vieth, 541 U.S. at 278 (plurality opinion). In the judicial sphere, unlike in the political sphere, ad hoc decision-making will not do; “judicial action must be governed by standard, by rule.” Ibid. The absence of an objective standard suggests “‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 499, 500 (1975)). Put another way, the “lack of judicially discoverable standards” indicates the commitment of the question to the “political departments,” requiring dismissal. Baker v. Carr, 369 U.S. 186, 214 (1962).

7
That is not to say, however, that all cases with political consequences necessarily involve nonjusticiable political questions. See Davis v. Bandemer, 478 U.S. 109, 122 (1986) (The doctrine “is one of political questions, not one of political cases.”) (emphases added) (quoting Baker, 369 U.S. at 217) (internal quotation marks omitted). On the contrary, “courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action * * * exceeds constitutional authority” simply because the action is “denominated ‘political.’” Ibid. When “well developed and familiar” judicial standards for decision are available (Baker, 369 U.S. at 226), courts have a responsibility to render judgment—they “cannot avoid their responsibility merely ‘because the issues have political implications.’” Zivotofsky, 566 U.S. at 196 (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)).
2. The First Amendment retaliation doctrine furnishes a clear and objective standard for identifying unlawful partisan gerrymanders. It brings with it a well-settled framework for decision, including the requirement that plaintiffs establish a concrete adverse impact (e.g., Zherka v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011)), just as in single-district racial gerrymandering cases (e.g., Ala. Legislative Black Caucus, 135 S. Ct. at 1265).
Amici’s concrete-impact approach is grounded not only in settled First Amendment doctrine, but in the law of partisan gerrymandering itself. “The term ‘political gerrymander’ has been defined as ‘[t]he practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.’” Vieth, 541 U.S. at 271

8
n.1 (plurality opinion) (quoting Black’s Law Dictionary 696 (7th ed. 1999)). The purpose of such “vote dilution” is to ensure that the disfavored voters have “less opportunity * * * to elect candidates of their choice.” Bandemer, 478 U.S. at 131 (plurality opinion). The proposition that vote dilution ought to be actionable when it actually produces a demonstrable adverse impact (in amici’s case, preventing them from re-electing the Republican candidate as their representative in Congress, as they otherwise would have been able to do) is thus sensible.2
The concrete burden requirement also recognizes that partisan vote dilution is not unlawful in its own right. Cf. LULAC, 548 U.S. at 419-420 (Kennedy, J.). Indeed, some degree of vote dilution is inevitable in every redistricting, as map-drawers and legislatures weigh and balance legitimate and competing redistricting policies. The question that has stymied courts since Bandemer is how to determine when a map’s imposition of partisan vote dilution crosses the constitutional line—when partisan vote dilution “require[s] intervention by the federal courts.” Bandemer, 478 U.S. at 134 (plurality opinion).
The answer to that question, under the First Amendment retaliation framework, is two-pronged: Partisan vote dilution is unlawful—first—when it has been brought about deliberately, reflecting a
2 To be clear, “‘[c]oncrete’ is not * * * necessarily synonymous with ‘tangible.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). “Although tangible injuries are perhaps easier to recognize, [the Supreme Court has] confirmed in many of [its] previous cases that intangible injuries can nevertheless be concrete.” Ibid. (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (free exercise)).

9
specific intent to burden particular citizens because of the way they have voted in prior elections and the party with which they affiliate; and—second—when it manifests in a concrete and practical way, such as when it changes the outcome of an election.
This concrete-burden standard turns on the same reasoned, manageable distinctions that govern every lawsuit in federal court. Every plaintiff must always “allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin, 422 U.S. 490, 501 (1975). And measuring the significance of vote dilution by evaluating whether it produces a concrete burden is a natural reflection of the longstanding rule that the Elections Clause is not “a source of power to dictate electoral outcomes” by enacting laws that “favor or disfavor a class of candidates.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833-834 (1995).
3. The three-judge district court in Shapiro II agreed with all of this, holding that amici had stated a justiciable single-district claim under the First Amendment retaliation doctrine.
The district court started from settled principles. To begin, “[p]olitical belief and association constitute the core of those activities protected by the First Amendment” and “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society.” Shapiro II, 203 F. Supp. 3d at 594 (quoting Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion); Reynolds v. Sims, 377 U.S. 533, 555 (1964)). “[T]he First Amendment also works in tandem with other constitutional guarantees to protect representational rights,” including “‘[t]he right of qualified voters, regardless of their political

10
persuasion, to cast their votes effectively.’” Ibid. (emphasis omitted) (quoting Anderson v. Celebrezze, 460 U.S. 780, 787 (1983)). “Thus, at the most basic level,” the court reasoned, “when a State draws the boundaries of its electoral districts so as to dilute the votes of certain of its citizens, the practice imposes a burden on those citizens’ right to ‘have an equally effective voice in the election’ of a legislator to represent them.” Shapiro II, 203 F. Supp. 3d at 595 (quoting Reynolds, 377 U.S. at 565).
In this way, “[t]he practice of purposefully diluting the weight of certain citizens’ votes to make it more difficult for them to achieve electoral success because of the political views they have expressed through their voting histories and party affiliations” violates “the First Amendment’s well-established prohibition against retaliation, which prevents the State from indirectly impinging on the direct rights of speech and association by retaliating against citizens for their exercise.” Shapiro II, 203 F. Supp. 3d at 595 (citing Vieth, 541 U.S. at 314-315 (Kennedy, J., concurring in the judgment); Hartman v. Moore, 547 U.S. 250, 256 (2006)). “Because there is no redistricting exception to this well-established First Amendment jurisprudence, the fundamental principle that the government may not penalize citizens because of how they have exercised their First Amendment rights [in the past] thus provides a well-understood structure for claims challenging the constitutionality of a State’s redistricting legislation.” Id. at 596.
As a general matter, a plaintiff bringing a First Amendment retaliation lawsuit must show that the State harbored a specific intent to penalize him as reprisal for conduct protected by the First Amend-

11
ment; that the State’s conduct resulted in injury; and that the injury is a but-for result of the improper intent to retaliate. Shapiro II, 203 F. Supp. 3d at 596. On the issue of injury, in particular—the issue that has eluded manageable measurement in equalprotection gerrymandering cases—the plaintiff must show a harm that is more than “de minimis or trivial,” and “[h]urt feelings or a bruised ego” are not enough. Shapiro II, 203 F.3d at 596 (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000); Zherka v. Amicone, 634 F.3d 642, 645-646 (2d Cir. 2011)). The harm must, in other words, be “concrete.” Ibid.
Accordingly,
[w]hen applying First Amendment jurisprudence to redistricting, * * * [a] plaintiff must [show] that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution. But vote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury. Instead, to establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. In other words,

12
the vote dilution must make some practical difference. Finally, the plaintiff must allege causation—that, absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.
Shapiro II, 203 F. Supp. 3d at 596-597.
Crucially, “[t]his standard contains several important limitations that help ensure that courts will not needlessly intervene in what is quintessentially a political process.” Shapiro II, 203 F. Supp. 3d at 597. First, “it does not prohibit a legislature from taking any political consideration into account in reshaping its electoral districts.” Ibid. “Rather, what implicates the First Amendment’s prohibition on retaliation is not the use of data reflecting citizens’ voting history and party affiliation, but the use of such data for the purpose of making it harder for a particular group of voters to achieve electoral success because of the views they had previously expressed.” Ibid.
Second, “merely proving that the legislature was aware of the likely political impact of its plan and nonetheless adopted it is not sufficient to prove that the legislature was motivated by the type of intent necessary to sustain a First Amendment retaliation claim.” Ibid.
Finally:
the standard requires proof that the vote dilution brought about by the redistricting legislation was sufficiently serious to produce a demonstrable and concrete adverse effect on a group of voters’ right to have “an equally effective voice in the election” of a representative. Not only is this requirement of a

13
palpable and concrete harm indicated by First Amendment retaliation jurisprudence, but it also makes common sense. Legislators draw political gerrymanders for practical reasons, and it is fitting to measure the effect of the apportionment not by whether it crosses some arbitrary statistical threshold or offends some vague notion of fairness, but by its real-world consequences—including, most notably, whether the State’s intentional dilution of the weight of certain citizens’ vote by reason of their views has actually altered the outcome of an election.
Shapiro II, 203 F. Supp. 3d at 597-598 (citation omitted). The district court thus “recognize[d] the justiciability of a claim challenging redistricting under the First Amendment and Article I, § 2, when it alleges intent, injury, and causation, as described herein.” Id. at 598.
B. Amici’s evidence of unlawful First Amendment retaliation in Maryland’s 2011 redistricting is compelling
As amici have demonstrated in their motion for a preliminary injunction before the district court, they have proved each of the elements of their claim.
First, those responsible for Maryland’s 2011 redistricting plan had the specific intent to dilute the votes of Republican citizens because of their voting histories and party affiliation, including their past success electing Republican Roscoe Bartlett to Congress. In his deposition testimony on this point, Governor Martin O’Malley—the man with principal responsibility for the map—could not have been more forthcoming: It was “clearly [his] intent” and the

14
“intent” of “those of us in leadership positions in our party * * * to create a map that would” result in a “district where the people would be more likely to elect a Democrat than a Republican.” See Mot. for P.I. 1-2, 11-12, Dkt. 177-1, Benisek v. Lamone, No. 13-cv-3233 (D. Md. May 31, 2017). May others involved in the redistricting confirmed this express purpose, as did amici’s experts in demography and redistricting. Id. at 12-16. There is simply no other explanation for the massive reshuffling of the Sixth District’s population in 2011, apart from an intent to dilute Republican votes there.
Second, those responsible for the redistricting plan achieved their specifically intended goal: Experts for both the plaintiffs and the State have agreed that Republican votes in the Sixth District were substantially diluted as a consequence of moving large majority-Democrat areas into, and majority-Republican areas out of, the district. And the upshot of this deliberate vote dilution was a concrete injury: In each of the three elections since 2011, Republicans in the old Sixth District have been unable to elect a candidate of their choice, despite that they had been able to do so in each election over the prior two decades. Thus, the vote dilution visited upon Republicans in the Sixth District made a “concrete” and “practical difference.” Shapiro II, 203 F. Supp. 3d at 597.
Finally, “absent the mapmakers’ intent to burden [Republicans in the old Sixth District] by reason of their views” (Shapiro II, 203 F. Supp. 3d at 597), Republican voters in the Sixth District would not have been palpably diluted. There is no evidence that any of the other considerations cited by Governor O’Malley would have resulted in so fundamental a

15
rearrangement of the Sixth District’s population. And no traditional redistricting principles can explain the district’s southward contortions. Finally, without the massive vote dilution visited upon Republican voters in the former Sixth District, the outcomes of the elections in 2012 onward would have been different.
C. The Court should not pass upon the justiciability or merits of any claim not before it
The differences between Plaintiffs’ claim in this case and amici’s claim in the Maryland litigation are manifest:
• This case involves a challenge under the Equal Protection Clause based on the statewide concept of partisan asymmetry and the efficiency gap. Amici’s case, in contrast, involves a challenge under the First Amendment retaliation doctrine, including its requirement of a concrete injury.
• Whereas Plaintiffs’ partisan asymmetry claim necessarily entails quantitative, statistically-based line-drawing, amici’s First Amendment retaliation claim does not.
• The partisan asymmetry claim in this case involves a challenge to a statewide map, and the State’s principal appellate arguments are directed at the statewide nature of the claim. Amici’s case, in contrast, involves a challenge to the deliberate cracking of a single congressional district.
• According to Plaintiffs’ claim, a case of intentional and concrete vote dilution in one district may be lawful, so long as statewide partisan asymmetry is not “extreme” overall. Not so under the First Amendment retaliation doctrine. It would be no answer to the injury inflicted upon amici in

16
Maryland’s Sixth Congressional District to observe that far-off voters in the First Congressional District had successfully elected a Republican, or to conclude that the 2011 congressional map is otherwise “fair” to Maryland Republicans overall, according to an abstract, statewide measure of partisan symmetry.
• Aimic’s case involves a challenge to the lines of a single federal congressional district. Plaintiffs’ case, in contrast, involves a challenge to the lines of state legislative districts, which are subject to laxer constitutional constraints than the drawing of federal districts. See Reynolds v. Sims, 377 U.S. 533, 577-579 (1964).
Despite these differences, the fifth question presented in Defendants’ jurisdictional brief (at i) is stated in categorical terms: “Are partisan-gerrymandering claims justiciable?” Simply put, that question is not presented in this appeal. To answer that question, after all, the Court would have to pass upon the justiciability of amici’s claim. Yet the parties here have not briefed that issue, either below or before this Court. And why would they have? Plaintiffs did not plead a First Amendment retaliation claim, and the parties’ discovery was not directed to that theory.
The Court accordingly should not reach the fifth question presented in Defendants’ jurisdictional brief. Cf. Sims v. Apfel, 530 U.S. 103, 108-109 (2000) (“[A]ppellate courts will not consider arguments not raised before trial courts.”). And in addressing the justiciability and merits of Plaintiffs’ particular statewide claim, the Court should be aware of amici’s single-district First Amendment retaliation claim and cautious not prejudge it.

17
CONCLUSION
Amici’s single-district, First Amendment retaliation claim in Maryland is based on a “legal theory * * * [that is] uncontradicted by the majority in any of [the Court’s] cases” (Shapiro I, 136 S. Ct. at 456), and its justiciability has been affirmed by the threejudge district court in Shapiro II. In deciding the issues presented in this appeal, the Court should not prejudge amici’s First Amendment retaliation claim.
Respectfully submitted
MICHAEL B. KIMBERLY Counsel of Record
PAUL W. HUGHES Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3000 mkimberly@mayerbrown.com
August 2017

 
 No. 16-1161
In The
Supreme Court of the United States

Beverly R. Gill, et al.,
v. William Whitford, et al.,

Appellants, Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

Brief of the American Civil Rights Union and the Public Interest Legal Foundation as Amici
Curiae in Support of Appellants

J. Christian Adams Counsel of Record Kaylan L. Phillips PUBLIC INTEREST LEGAL FOUNDATION 32 E. Washington St., Ste. 1675 Indianapolis, IN 46204 (317) 203-5599 adams@publicinterestlegal.org Counsel for Amici Curiae American Civil Rights Union and Public Interest Legal Foundation

i
Table of Contents Table of Authorities ............................................. ii Interests of Amici Curiae..................................... 1 Summary of the Argument .................................. 2 Argument.............................................................. 3
I. The Constitution Grants the States the Power Over Elections. ............................... 3
II. Allowing a Federal Cause of Action Under the First and Fourteenth Amendment for Partisan Gerrymandering Upsets This Constitutional Balance.............................. 4
Conclusion ............................................................ 9

ii
Table of Authorities Cases Ariz. v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) ....................................... 3-4 Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ......................... 3 Chapman v. Meier, 420 U.S. 1 (1975) ................. 4 Gomillion v. Lightfoot, 364 U.S. 339 (1960) ....... 4 Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ................................ 7 Perry v. Perez, 132 S. Ct. 934 (2012) .................. 8 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ............................................. 6 Reynolds v. Sims, 377 U.S. 533 (1964) ............... 4 Shelby County. v. Holder, 679 F.3d 848 (2012) ............................................. 4 Shelby County. v. Holder, 133 S. Ct. 2612 (2013) ...................................... 6-8 Smiley v. Holm, 285 U.S. 355 (1932) .................. 3 Vieth v. Jubelirer, 541 U.S. 267 (2004) ........... 7-8
Statutes and Constitutional Provisions U.S. Const., Art. I, § 2, cl. 1 ................................. 3 U.S. Const., Art. I, § 4, cl. 1 ............................. 2, 4 U.S. Const., Art. II, § 1, cl. 2 ................................ 3 Seventeenth Amendment .................................... 3

iii
Other Authorities A. Bickel, The Morality of Consent (1975) ......... 6

1
Interests of Amici Curiae1
Amicus Curiae American Civil Rights Union (ACRU) is a non-partisan 501(c)(3) tax-exempt organization dedicated to protecting the civil rights of all Americans by publicly advancing a Constitutional understanding of our essential rights and freedoms. It was founded in 1998 by long time policy advisor to President Reagan, and the architect of modern welfare reform, Robert B. Carleson. Carleson served as President Reagan’s chief domestic policy advisor on federalism, and originated the concept of ending the federal entitlement to welfare by giving the responsibility for those programs to the states through finite block grants. Since its founding, the ACRU has filed amicus curiae briefs on constitutional law issues and election matters in cases nationwide.
The ACRU Policy Board sets the policy priorities of the organization, and includes some of the most distinguished statesmen in the Nation on matters of free speech and election law. Current Policy Board members include: the 75th Attorney General of the United States, Edwin Meese III; Charles J. Cooper, the former Assistant Attorney General for the Office of Legal Counsel, William Bradford Reynolds, the former Assistant Attorney General for the Civil Rights Division; J. Kenneth Blackwell, the former

1

No counsel for a party authored this brief in whole or in

part, nor did any person or entity, other than amici curiae and

its counsel, make a monetary contribution intended to fund the

preparation or submission of this brief. Appellants and

Appellees have consented to the filing of timely amicus curiae

briefs in support of either party or neither party.

2
U.S. Ambassador to the United Nations Human Rights Commission and Ohio Secretary of State; former Voting Rights Section attorney, U.S. Department of Justice, J. Christian Adams; and former Counsel to the Assistant Attorney General for Civil Rights and former member of the Federal Election Commission Hans von Spakovsky.
Amicus Curiae Public Interest Legal Foundation (the Foundation) is a non-partisan 501(c)(3) taxexempt organization dedicated to promoting the integrity of American elections and preserving the constitutional balance giving states control over their own elections. The Foundation files amicus curiae briefs as a means of advancing its purpose and has appeared as amicus curiae in numerous cases in federal courts throughout the country. The Foundation employs or is affiliated with national election law experts, scholars, and practitioners.
This case is of interest to ACRU and the Foundation because both organizations are concerned with protecting the sanctity and integrity of American elections and preserving the Constitutional balance of state control over their own elections.
Summary of the Argument
Pursuant to U.S. Const., Art. I, § 4, cl. 1, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The Constitution’s Election Clause, as it is commonly known, gives the States the power to run their elections, with the Congress allowed only limited power with respect to regulations concerning the

3
“Times, Places, or Manner” of holding federal elections. U.S. Const., Art. I, § 4, cl. 1; see also Seventeenth Amendment and U.S. Const., Art. II, § 1, cl. 2. In this area, Congress’s power to regulate is superior to the States’ power only when the regulations cannot be reconciled. That is, Congress’s regulations “supersede those of the State which are inconsistent therewith.” Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247, 2254 (2013) (“ITCA”).
As this Court has “observed, redistricting ‘involves lawmaking in its essential features and most important aspect.’” Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2667 (2015) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). The lower court invited unlimited federal intrusion into a core Constitutional power granted to the States without Congress expressly permitting the intrusion.
Argument
I. The Constitution Grants the States the Power Over Elections.
The power to regulate federal elections is directed by the Constitution. To the States, the Framers granted exclusively the authority to control who may vote in federal elections. See U.S. Const., Art. I, § 2, cl. 1 (election of Representatives), Seventeenth Amendment (election of Senators), and U.S. Const., Art. II, § 1, cl. 2 (presidential electors chosen as directed by state legislatures).
With respect to how federal elections are conducted, the Framers divided authority between Congress and the States. Under the Constitution’s

4
Election Clause, Congress may regulate the “Times, Places, or Manner” of holding federal elections. U.S. Const., Art. I, § 4, cl. 1; ITCA, 133 S. Ct. at 2257 (“[T]he Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). Congress’s power to regulate how elections are held, however, is only superior to the States’ power to do the same when they differ. That is, Congress’s regulations “supersede those of the State which are inconsistent therewith.” Id. at 2254. Unquestionably, the responsibility of redistricting remains with the States. See Chapman v. Meier, 420 U.S. 1, 27 (1975) (“We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.”).
To be sure, the States’ power of redistricting is not absolute. It is subject to certain constitutional and statutory standards, often involving systems prohibited by the Fifteenth Amendment or well established Fourteenth Amendment protections. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960) (“When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment”) and Reynolds v. Sims, 377 U.S. 533, 568 (1964) (“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”) See also J.S. Appendix A 6-7a.

5
II. Allowing a Federal Cause of Action Under the First and Fourteenth Amendment for Partisan Gerrymandering Upsets This Constitutional Balance.
The lower court’s invalidation of Wisconsin’s redistricting plan, however, was not based on wellestablished constitutional principles. Instead, the lower court based its decision on partisan gerrymandering grounds, finding “that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats.” J.S. Appendix A 3a. The panel below recognized the significance of their departure from a federalist perspective, J.S. Appendix A 108a, yet found that “the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” J.S. Appendix A 109-110a. The panel based its admittedly novel conclusion not on a finding of discrimination abhorrent to deeply rooted constitutional principles but on its finding that the drafters of the plan intended “to entrench the Republican Party in power.” J.S. Appendix A 140a. Such a finding, built on a shaky foundation, at best, upsets the delicate balance of power agreed upon in 1787 and should be reversed.
The panel’s departure from federalist principles cannot be reconciled with this Court’s recent reaffirmance of the original constitutional arrangement which gave states the general power to

6
manage their own elections subject to explicit and well defined exceptions. In Shelby County. v. Holder, this Court considered whether Section 4 of the Voting Rights Act of 1965, the formula by which covered jurisdictions were chosen for the Act’s “preclearance” requirement for changes in voting procedures pursuant to Section 5. 133 S. Ct. 2612, 2619-20 (2013). Ultimately, the Court determined that Section 4 was unconstitutional. Id. at 2631. In so finding, the Court acknowledged that Section 5, which “required States to obtain federal permission before enacting any law related to voting[,]” was “a drastic departure from basic principles of federalism.” Id. at 2618.
In the context of Section 5, while “[t]he Federal Government does not…have a general right to review and veto state enactments before they go into effect[,]” Shelby County, 133 S. Ct. at 2623, there were “exceptional conditions” that merited the “uncommon exercise of congressional power,” id. at 2624 (quotations and citations omitted).
“The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem”—racial discrimination in voting. Shelby County., 133 S. Ct. at 2618. “‘The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.’” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 295 n.35 (1978) (quoting A. Bickel, The Morality of Consent 133 (1975)).
The fact that Section 4 “applied [Section 5] only to some States” was “an equally dramatic departure

7
from the principle that all States enjoy equal sovereignty.” Shelby County., 133 S. Ct. at 2618. But such “strong medicine” was chosen in order “to address entrenched racial discrimination in voting, ‘an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.’” Id. (quoting South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).) As Judge Williams noted in his dissent in the D.C. Circuit case later reversed by the Supreme Court, “the federalism costs of § 5 are ‘substantial.’” Shelby County. v. Holder, 679 F.3d 848, 885 (2012) (J. Williams, dissenting) (citing Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009)). The federalism costs of shifting power away from the States and to the judiciary regarding redistricting are also substantial.
It is now axiomatic that there is no room for racial discrimination in the electoral process. Remarkably, the panel here understood that this Court has found that the same cannot be said about partisanship in the redistricting process:
The plurality in Vieth [v. Jubelirer, 541 U.S. 267 (2004)], for instance, noted that “partisan districting is a lawful and common practice.” 541 U.S. at 286. In his opinion, Justice Kennedy observed that political classifications are “generally permissible.” Id. at 307 (Kennedy, J., concurring in the judgment). Justices Souter and Breyer, dissenting in Vieth, expressed the view that partisan favoritism in some form was inevitable, if not necessarily desirable. See id. at 344 (Souter, J., dissenting) (“[S]ome intent to gain political

8
advantage is inescapable whenever political bodies devise a district plan ….”); id. at 360 (Breyer, J., dissenting) (“[T]raditional or historically based boundaries are not, and should not be, ‘politics free.’ … They … represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage.” (emphasis added)). J.S. Appendix A 112a-113a. Certainly, the complaints of the Appellees can thus hardly be said to describe an “extraordinary problem” akin to the racial discrimination that warranted the “unprecedented” measures of the Voting Rights Act. Shelby County, 133 S. Ct. at 2618. Yet the lower court afforded the same or more protections for perceived political advantage than is due for deeply rooted constitutional protections. The lower court’s “drastic departure from basic principles of federalism[,]” Shelby County, 133 S. Ct. at 2618, however, cannot withstand constitutional scrutiny. While the power exercised at issue in Shelby did not involve redistricting, this Court expressly acknowledged that it is an important function within the States’ control. See Shelby County, 133 S. Ct. at 2623 (“Drawing lines for congressional districts is likewise ‘primarily the duty and responsibility of the State.’” (quoting Perry v. Perez, 132 S. Ct. 934 (2012)).) Moreover, Appellees seek a similar outcome to those defending the preclearance requirement, wherein a federal court can deem a duly enacted state redistricting plan not to their liking and effectively block it. This is an affront to the important federalist balance reaffirmed in Shelby and should be rejected.

9
Conclusion For the following reasons, amici urge that this Court reverse the lower court’s decision.
Respectfully submitted,
J. Christian Adams Counsel of Record Kaylan L. Phillips PUBLIC INTEREST LEGAL FOUNDATION 32 E. Washington St., Ste. 1675 Indianapolis, IN 46204 (317) 203-5599 adams@publicinterestlegal.org Counsel for Amici Curiae American Civil Rights Union and Public Interest Legal Foundation
August 4, 2017

 
 No. 16-1161
IN THE
Supreme Court of the United States
———— BEVERLY R. GILL, et al.,
Appellants, v.
WILLIAM WHITFORD, et al., Appellees.
———— On Appeal from the United States District Court
for the Western District of Wisconsin ————
BRIEF OF ERIC MCGHEE AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY ————

CHRISTOPHER S. ELMENDORF UNIVERSITY OF CALIFORNIA,
DAVIS SCHOOL OF LAW 400 Mrak Hall Drive Davis, CA 95616 (530) 752-5756 cselmendorf@ucdavis.edu

DANIEL F. KOLB Counsel of Record
LYNN E. BUSATH JOHN HAMMOND HEATH ELIZABETH A. TIPPETT DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 Daniel.Kolb@DavisPolk.com

August 10, 2017

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ iii
INTEREST OF AMICUS CURIAE..................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT........................................................ 2
ARGUMENT........................................................ 3
I. THE EFFICIENCY GAP IS A SIMPLE, HISTORICALLY GROUNDED METRIC OF PARTISAN ADVANTAGE, RESPONSIVE TO CONCERNS THAT JUSTICES OF THIS COURT HAVE RAISED ..................................................... 3
A. The Efficiency Gap Measures the Votes Wasted By Packing and Cracking Opposing-Party Voters Among Legislative Districts................ 4
B. The Efficiency Gap’s Implementation of the Concept of “Partisan Symmetry” Is Historically Grounded and Does Not Depend on Implausible Hypotheticals ....................................... 7
C. The Efficiency Gap Is Calculated Using Familiar Concepts, Methods, and Data Sources, and Is Not Easily Manipulated ........................................ 12
D. Because the EG Provides a Snapshot Picture of Relative Wasted Votes, Assessments of Partisan Fairness Benefit From Further Analysis .......... 15
(i)

ii TABLE OF CONTENTS—Continued
Page
II. THE OBJECTIONS TO THE EFFICIENCY GAP AS A MEASURE OF PARTISAN ADVANTAGE ARE EASILY MET........................................................... 18
A. The Efficiency Gap Does Not Rest on a Mistaken Conception of Wasted Votes..................................................... 18
B. The Putative Volatility of the Efficiency Gap Is a Feature, Not a Flaw ... 22
C. The Efficiency Gap Does Not Account for All Democratic Values—Nor Should It .............................................. 23
D. The Efficiency Gap Is Not Biased Toward Democrats .............................. 25
E. The Efficiency Gap Does Not Require Proportional Representation............... 27
III. THE EFFICIENCY GAP IS CLOSELY RELATED TO THE OTHER MEASURES OF PARTISAN SYMMETRY, BOTH ARITHMETICALLY AND EMPIRICALLY ..................................................... 29
A. Arithmetically, the Symmetry Metrics Are Closely Related to One Another... 30
B. Empirically, Little Turns on the Choice Among Symmetry Metrics in Competitive States Such as Wisconsin ............................................. 32
CONCLUSION .................................................... 34

iii TABLE OF AUTHORITIES

CASES

Page(s)

Baker v. Carr, 369 U.S. 186 (1962)................................... 24
Bartlett v. Strickland, 556 U.S. 1 (2009)....................................... 22
City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980)..................................... 28
Davis v. Bandemer, 478 U.S. 109 (1986)............................... 6, 19, 28
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014)..................... 17
Johnson v. De Grandy, 512 U.S. 997 (1994)................................... 17
League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399 (2006)..................................passim
League of Women Voters of North Carolina v. Rucho, No. 1:16-CV-1026, 2017 WL 876307 (M.D.N.C. 2017) ........................................... 12
Reynolds v. Sims, 377 U.S. 533 (1964)................................... 28
Vieth v. Jubelirer, 541 U.S. 267 (2004)..................................passim
Whitcomb v. Chavis, 403 U.S. 124 (1971)................................... 28
Whitford v. Gill, 218 F.Supp.3d 837 (2016) ........................passim

iv TABLE OF AUTHORITIES—Continued

COURT FILINGS

Page(s)

Brief Amicus Curiae of the Republican National Committee in Support of Appellees, Davis v. Bandemer, 478 U.S. 109 (1986) (No. 84-1244), 1985 WL 670030 ....................................................... 25
Brief for Appellants, Whitford v. Gill, 218 F.Supp.3d 837 (2016) ...............................passim
Brief of Amici Curiae Professors Gary King et al., in Support of Neither Party, LULAC, 548 U.S. 399 (2006) (No 05-204), 2006 WL 53994 ......................................... 9
Brief of Amici Curiae The Republican National Committee and the National Republican Congressional Committee in Support of Appellants, Whitford v. Gill, 218 F.Supp.3d 837 (No. 16-1161), 2017 WL 1548280 .................................. 21–22, 25, 26
Brief of Amici Curiae Wisconsin State Senate and Wisconsin State Assembly in Support of Appellants, Whitford v. Gill, 218 F.Supp.3d 837 (2016) (No. 16-1161), 2017 WL 1506064 ..................................... 18
Plaintiffs’ Trial Brief, Whitford v. Gill, 218 F.Supp.3d 837 (2016) (No. 15-cv-421-bbc)... 33

OTHER AUTHORITIES

Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. POL. SCI. 514 (1994) .......................................... 9, 14

v
TABLE OF AUTHORITIES—Continued
Page(s)
Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 AM. POL. SCI. REV. 541 (1994) ....... 10, 26
Barry C. Burden, Candidate Positioning in US Congressional Elections, 34 BRIT. J. POL. SCI. 211 (2004) .................................. 20
Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 ELECTION L.J. 2 (2007) ......................................................... 10, 11
DANIEL KREISS, PROTOTYPE POLITICS: TECHNOLOGY-INTENSIVE CAMPAIGNING AND THE DATA OF DEMOCRACY (2016) ....... 20
David S. Lee et al., Do Voters Affect or Elect Policies? Evidence from the U.S. House, 119 Q.J. ECON. 807 (2004) ........................ 20
Devin Caughey et al., Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies, 16 ELECTION L.J. (forthcoming 2017), available at http://cwarshaw.scri pts.mit.edu/papers/CTW_efficiency_gap_ 170515.pdf (May 15, 2017) ....................... 20
EITAN HERSH, HACKING THE ELECTORATE: HOW CAMPAIGNS PERCEIVE VOTERS (2015) ......................................................... 20

vi
TABLE OF AUTHORITIES—Continued
Page(s)
Eric McGhee, Measuring Efficiency in Redistricting, 16 ELECTION L.J. (forthcoming 2017), available at https://papers. ssrn.com/sol3/papers.cfm?abstract_id=30 07401 ........................................................passim
Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 LEGIS. STUD. Q. 55 (2014)....................passim
Eric McGhee, Memo to the Indiana Legislature on Efficiency Gap Imputations, Aug. 5, 2016, available at https:// papers.ssrn.com/sol3/papers.cfm?abstrac t_id=3007178............................................. 14–15
JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (Prometheus Books 1991) (1861).......................... 27
Keith T. Poole, Changing Minds? Not in Congress!, 131 PUB. CHOICE 435 (2007) ... 20
Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 ELECTION L.J. 312 (2015) ......... 30
Nicholas O. Goedert, Gerrymandering or Geography? How Democrats Won the Popular Vote but Lost the Congress in 2012, RES. & POL., Apr.–June 2014.......... 26

vii
TABLE OF AUTHORITIES—Continued
Page(s)
Nicholas Stephanopoulos, The Causes and Consequences of Gerrymandering, 59 WM. & MARY L. REV. (forthcoming 2017), available at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=2990638 ............. 26
Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831 (2015) ........................................................passim
Nolan McCarty et al., Does Gerrymandering Cause Polarization?, 53 AM. J. POL. SCI. 666 (2009) .................................. 20
Richard G. Niemi & Simon Jackman, Bias and Responsiveness in State Legislative District-ing, 16 LEGIS. STUD. Q. 183 (1991) ......................................................... 26
RODERICK J. A. LITTLE & DONALD B. RUBIN, STATISTICAL ANALYSIS WITH MISSING DATA (2d ed. 2014) .................................... 14
Samuel S.H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 STAN. L. REV. 1263 (2016) ....... 30
Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan, Whitford v. Gill, No. 15-cv-421-bbc (W.D. Wis. Nov. 21, 2016)......................... 11, 25
Simon Jackman, Rebuttal Report, League of Women Voters of North Carolina v. Rucho, No. 1:16-CV-1026 (M.D.N.C. 2017) .........................................................passim

viii TABLE OF AUTHORITIES—Continued
Page(s)
State Legislative Election Returns (1967– 2010), Inter-University Consortium for Political and Social Research, available at http://www.icpsr.umich.edu/icpsrweb/ICP SR/studies/34297, Study No. 34297 .......... 11
Stephen Ansolabehere et al., Candidate Positioning in U.S. House Elections, 45 AM. J. POL. SCI. 136 (2001) ....................... 20

BRIEF OF ERIC MCGHEE AMICUS CURIAE IN SUPPORT OF NEITHER PARTY
————
INTEREST OF THE AMICUS CURIAE1
Amicus curiae Eric McGhee is a political scientist and research fellow at the Public Policy Institute of California (“PPIC”). PPIC is a nonprofit, nonpartisan organization dedicated to informing and improving public policy in California.2 McGhee developed the “Efficiency Gap” measure of partisan advantage on which the plaintiffs and the court below relied. He holds a Ph.D. in political science from U.C. Berkeley and has published numerous papers in top peerreviewed journals.
He takes an interest in this case because the plaintiffs and the lower court have relied on his work, and because he wants to ensure that this Court’s decision is not based on a misunderstanding of the Efficiency Gap and the other metrics of partisan advantage that may be used in analyzing a map of legislative districts.
1 Pursuant to Rule 37.6, amicus affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus and its counsel made a monetary contribution to its preparation or submission. The parties’ letters consenting to the filing of amicus curiae briefs have been filed with the Clerk’s office.
2 McGhee’s affiliation with PPIC is given here as biographical information; his findings in this area have not been reviewed or endorsed by PPIC, and PPIC takes no position on the use of this research for any purpose. The views expressed in McGhee’s brief in this matter are his personal views, and not those of PPIC.

2
INTRODUCTION AND SUMMARY OF ARGUMENT
Amicus files this brief on behalf of neither party to explain the Efficiency Gap (“EG”) measure of partisan advantage and respond to questions about it. This brief does not argue for or against affirmance of the lower court’s decision, nor does it propose a specific doctrinal standard or test for liability. Amicus’s aims are purely explanatory.
Part I below provides an introduction to the EG, including an explanation of how the EG relates to measures of partisan symmetry—the relative opportunity for each party to convert votes into seats—previously considered by this Court. The EG may be used in all states, including those that do not have competitive elections. It is an easy-to-calculate, hard-to-manipulate measure of partisan advantage that is grounded both in recognized concepts of political fairness and in our nation’s actual history of elections since the adoption of the one person, one vote principle.
Part II responds to objections that have been raised as to the use of the EG. The objections raised are easily met.
Part III explains the conceptual and empirical relationships between the EG and other proposed measures of partisan symmetry. The main takeaways are that the EG has distinct advantages over the other measures and in politically competitive states such as Wisconsin all of the symmetry metrics lead to similar conclusions.
Amicus submits that the EG is a very useful measure of the partisan advantage resulting from a full map of districts for a legislative body. The lower court’s reliance on the EG as evidence of partisan

3
advantage was reasonable, and certainly not grounds for reversal.
ARGUMENT
I. THE EFFICIENCY GAP IS A SIMPLE, HISTORICALLY GROUNDED METRIC OF PARTISAN ADVANTAGE, RESPONSIVE TO CONCERNS THAT JUSTICES OF THIS COURT HAVE RAISED.
The Efficiency Gap is a reliable measure of the effect of a partisan gerrymander for three principal reasons. First, the EG is predicated on the widespread understanding that the whole point of a partisan gerrymander is to distribute opposing-party supporters inefficiently so their votes are not converted into seats while distributing one’s own supporters efficiently so their votes are converted into seats.
Second, the EG is a practical, historically grounded implementation of partisan symmetry—the relative opportunity for each party to convert votes into state legislative or congressional seats. An EG of zero mathematically indicates symmetry, and, further, that the relationship between the parties’ vote shares and seat shares under the map at issue aligns with the historical norm in state legislative and congressional elections.
Several Justices of this Court have expressed interest in using symmetry to guide the evaluation of partisan gerrymandering claims, but also concern that quantification of a map’s asymmetry not depend on unrealistic electoral scenarios. See League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399, 420 (2006) (plurality opinion of Kennedy, J.) (“The existence or degree of asymmetry may in large part depend on conjecture about where possible vote-

4
switchers will reside . . . . [W]e are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.”); id. at 465 (Stevens, J., concurring in part and dissenting in part); id. at 483–84 (Souter, J., joined by Ginsburg, J., concurring in part and dissenting in part); id. at 491–92 (Breyer, J., concurring in part and dissenting in part). Addressing that concern, the EG reflects actual election results, and its robustness can be tested with electoral fluctuations typical for the state in question.
Third, calculation of the EG is straightforward. There is little room for expert witnesses to distort it to portray the challenged map in a deceptively good or bad light.
The picture of partisan advantage provided by the EG is a snapshot of a particular election—of votes actually cast and seats actually won or lost. Before invalidating a map, a court may consider evidence of whether and if so how the EG is likely to vary in future elections—or has varied in other elections—held pursuant to the map. Such evidence can be generated using statistical methods that are standard in the political science literature and widely employed by mapmakers who design partisan gerrymanders.
A. The Efficiency Gap Measures the Votes Wasted By Packing and Cracking Opposing-Party Voters Among Legislative Districts.
Presented first in a peer-reviewed academic paper, see Eric McGhee, Measuring Partisan Bias in SingleMember District Electoral Systems, 39 LEGIS. STUD. Q. 55 (2014) [hereinafter McGhee, Measuring Partisan Bias], the EG metric of partisan advantage is grounded

5
in a very simple and familiar idea: A redistricter seeking partisan advantage distributes voters among districts to increase the number of seats his party will obtain for a given share of the popular vote. Because winning more seats is the point of a partisan gerrymander, a measure that purports to quantify the effect of alleged partisan gerrymanders should classify a map as more advantageous to the redistricting party (relative to some other map) if the map would give the redistricting party more seats for the same share of the vote. Amicus calls this the “Efficiency Principle.” See McGhee, Measuring Partisan Bias, supra, at 61; Eric McGhee, Measuring Efficiency in Redistricting, 16 ELECTION L.J. (forthcoming 2017), available at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3007401 [hereinafter McGhee, Measuring Efficiency in Redistricting].
In developing the EG, McGhee built on observations of this Court and many others concerning the two principal ways by which redistricters may increase the number of seats held by their party without an associated increase in their party’s popular vote. One is to “crack” groups of opposing-party voters, spreading them among several legislative districts in which they will be outnumbered by voters of the party drawing the map. The other is to “pack” voters of the opposing party into districts that are already likely to be won by opposing-party candidates, increasing those candidates’ vote shares while effectively preventing the opposing party from winning more seats.
Whether packed or cracked, such votes are wasted because they do not contribute to victories. McGhee, Measuring Partisan Bias, supra, at 56–57; McGhee, Measuring Efficiency in Redistricting, supra, at 2–4. See also Vieth v. Jubelirer, 541 U.S. 267, 286 n.7 (2004)

6
(using the terms cracking and packing to characterize partisan gerrymanders); Davis v. Bandemer, 478 U.S. 109, 116–17 n.6 (1986) (stacking and cracking). A successful gerrymander will saddle the opposing party with more wasted votes than the mapmakers’ party, thereby garnering more legislative seats for the party in control.
The EG quantifies the relative difference in the parties’ wasted votes. It sums across all the districts in the map (1) the number of votes cast for each party’s losing candidates, and (2) the number of votes cast for each party’s winning candidates in excess of the 50% that assures victory.3 The first sum captures gerrymandering by cracking, the second, gerrymandering by packing.
Next, a party’s wasted-vote total is subtracted from the other party’s wasted-vote total, and the difference is divided by the total number of votes in the election. The result—the EG—is the difference in wasted votes as a percentage of the total vote. Restated in math notation:

∑

– ∑

∑

To illustrate, if there are 100,000 voters in a district and 55,000 vote for the Democratic candidate while

3 Arguably, votes for the winner are not wasted except insofar as the winner’s vote share exceeds 50% + 1, rather than 50%. This minor modification of the formula is inconsequential for realworld maps of legislative districts, with tens of thousands of voters per district. Either version of the formula satisfies the Efficiency Principle. See generally McGhee, Measuring Efficiency in Redistricting, supra.

7
45,000 back the Republican, the outcome of the race contributes 45,000 wasted votes to the Republican sum, 5,000 wasted votes (55,000-50,000) to the Democratic sum, and 100,000 votes to the denominator.
The EG can be calculated from the perspective of either party, i.e., with “Democrats” or “Republicans” as Party X in the above expression. When lawyers and commentators talk about whether the EG is “large” or “small,” they are referring to the absolute value of the EG. Because such discussions about size are always about the absolute value of the EG, it does not matter which party’s wasted vote total is used as the first term or the second term in the numerator of the EG.
As a sum across districts, the EG quantifies the total or aggregate partisan advantage conferred by a map of legislative districts, rather than how much a particular district benefits either party. To crack and to pack is to shift voters among districts; accordingly, any measure of the effect of a partisan gerrymander must account for the distribution of voters among districts, not simply the characteristics of a single district viewed in isolation. In layman’s terms, the EG is simply the net impact of packing and cracking across all the districts in a map.
B. The Efficiency Gap’s Implementation of the Concept of “Partisan Symmetry” Is Historically Grounded and Does Not Depend on Implausible Hypotheticals.
There is an important relationship between the EG and the concept of partisan symmetry. Long used by political scientists to define fairness in two-party systems, the concept of partisan symmetry was addressed by the Justices of this Court in LULAC. The EG employs the idea of partisan symmetry in a tractable,

8
historically grounded manner that responds specifically to Justice Kennedy’s critique in LULAC of the then-available symmetry metric.
A map of legislative districts is considered symmetric, as political scientists use the term, if it is expected to reward each party with the same share of seats for a given share of the two-party popular vote. Symmetry so defined is indifferent to what political scientists call responsiveness, that is, to the rate at which seats switch hands as the parties’ vote shares shift. Any level of responsiveness is compatible with symmetry, as symmetry merely means (1) that each party enjoys the same seat share for a given vote margin above 50%, and (2) that each party obtains 50% of the seats if both parties get 50% of the vote.
To identify the expected or usual relationship between votes and seats under a particular map of legislative districts, analysts will often shift (hypothetically) a party’s vote share in every seat up or down by the same amount and record the party’s new seat share given this shift. If this exercise is repeated for all possible vote shares, the hypothetical vote shares and seat shares can be plotted against each other in a “votes-toseats” curve. (See Part III, infra, for illustrations.) The votes-to-seats curve is a useful tool for understanding how a redistricting plan is likely to drive results under circumstances that have not occurred.
However, while this votes-to-seats curve is useful for thinking about symmetry in the abstract, no political party will ever experience the full range of vote shares from 0 to 100 percent, in a given state and over the lifetime of a given map. The votes-to-seats curve is empirically grounded only for vote shares within the

9
recent range of variation in actual vote shares in the state.
Recognizing as much, analysts do not usually quantify the curve’s asymmetry over the full span from a vote-share of 0% to a vote share of 100%. Instead, they focus on the most normatively significant point— a vote share of 50%—and estimate the seat shares that each party would likely receive when they earn the same share of the statewide vote. The difference between either party’s seat share and 50% at this point is called “partisan bias” or “Gelman-King bias.” See, e.g., Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. POL. SCI. 514, 536 (1994). Gelman-King bias was briefed in LULAC. See Brief of Amici Curiae Professors Gary King et al., in Support of Neither Party 14–15, LULAC, 548 U.S. 399 (No 05204), 2006 WL 53994 (suggesting legal standard based on estimated seat-share difference at 50% vote share).
Yet the Gelman-King measure may still depend on hypothetical electoral scenarios with little basis in real-world voting patterns. For example, in a state where Republicans regularly win about 65% of the two-party vote in state legislative elections, GelmanKing bias requires a prediction about the number of seats that Democrats would carry if the parties’ vote shares were significantly different from the actual balance of party voter percentages—e.g., if each party won 50% of the vote. Such dramatic, short-term partisan reversals are fanciful. They exist only in imagined realms of unheard-of calamity or radically overhauled party platforms and leadership. It’s anyone’s guess which voters would switch sides in these scenarios. Yet without predictions about the geographic distribution of vote-switchers, there’s no way to predict how

10
many seats would be won by each party in the counterfactual election. See LULAC, 548 U.S. at 419–20 (Kennedy, J. articulating such concerns).
Acknowledging the force of these objections, proponents of the Gelman-King measure have confirmed that it should only be used in competitive states, i.e., where each major party usually receives close to 50% of the two-party vote. See Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 ELECTION L.J. 2, 31 (2007); Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 AM. POL. SCI. REV. 541, 545 (1994). But this limitation puts courts in the awkward position of making case-by-case determinations of whether a state is sufficiently competitive for the metric of partisan advantage to be used.
The EG offers a ready solution to this problem. It is a version of symmetry that uses actual election outcomes—the votes actually cast and the seats actually won in any state. It does not depend on fanciful hypotheticals at all.4 Simple algebra establishes that an EG of zero will be observed if and only if the parties’ vote shares and seat shares in an election correspond to a point on the line which passes through the 50% vote, 50% seats point and has a slope of 2. See McGhee, Measuring Partisan Bias, supra, at 79–80. This line is symmetrical with 2:1 responsiveness, meaning that for every 1% increase in a party’s vote share above
4 Analysts do consider hypotheticals when investigating the durability of the observed EG, and in districts where seats are uncontested. But these inquiries are grounded in the observed range of variation in the state, in contrast to the counterfactuals sometimes required to calculate Gelman-King bias. See infra Part I.D.

11
50%, that party secures an additional 2% of the legislative seats. Thus, an EG of zero means that the election results accord with partisan symmetry—without requiring estimation of a hypothetical votes-to-seats curve.
Two-to-one responsiveness is not a strange anomaly. The existence of a “winner’s bonus” is a well-known feature of single-member district, plurality-winner electoral systems. See, e.g., Grofman & King, supra, at 9; Vieth, 541 U.S. at 357–58 (Breyer, J., dissenting). The 2:1 relationship reflected in an EG of zero is a particularly helpful guidepost because it corresponds to the actual historical relationship between votes and seats in American elections in the one person, one vote era.
To assess this relationship, plaintiffs’ expert Simon Jackman, then a tenured professor at Stanford University,5 analyzed the canonical dataset6 of postmalapportionment redistricting maps, compiled by experts and covering nearly all states from 1972 to the present. See Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan, Whitford v. Gill, No. 15-cv-421-bbc (W.D. Wis. Nov. 21, 2016) [hereinafter Jackman Wisconsin Report] at 33 fig. 11. He calculated vote and seat shares for every election held under each map, and the results cluster neatly around the votes-to-seats curve implied by an EG of zero. There are some outliers, but for the most part, the historical practice of districting in the United States has produced roughly symmetric maps with
5 Jackman is now CEO of the United States Studies Centre at the University of Sydney, in his home country of Australia.
6 State Legislative Election Returns (1967–2010), InterUniversity Consortium for Political and Social Research, available at http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/34297, Study No. 34297.

12
2:1 responsiveness. This finding is uncontested. See Whitford v. Gill, 218 F.Supp.3d 837, 904 (2016).
In Vieth, 541 U.S. 267, Justice Kennedy posited that litigants might in a future partisan gerrymandering case uncover “historical guidance” that would shed light on appropriate standards. Id. at 308–09 (Kennedy, J., concurring in judgment). He also noted that “new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.” Id. at 312–13. The record in this case bears out Justice Kennedy’s hope. The plaintiffs relied on a new technology (the EG metric), and they developed a record that is based on the actual history of United States elections. This history shows that the EG is grounded in a well-rooted (though previously unarticulated) tradition concerning the relationship between a major party’s support in the electorate and its share of seats in the legislature.
C. The Efficiency Gap Is Calculated Using Familiar Concepts, Methods, and Data Sources, and Is Not Easily Manipulated.
The reliability of the EG as a measure of partisan advantage is further indicated by the lack of disagreement among expert witnesses as to its calculation. In the present case, defendants’ experts did not challenge the EG calculations at all. In the North Carolina case, League of Women Voters of North Carolina v. Rucho, No. 1:16-CV-1026, 2017 WL 876307 (M.D.N.C. 2017), defendants’ expert was able to show EG results quite different than the plaintiffs’—but only by erroneously defining the EG as the deviation from proportional representation. See Simon Jackman, Rebuttal Report, League of Women Voters of North Carolina v. Rucho,

13
No. 1:16-CV-1026 (M.D.N.C. 2017) at 9–10 [hereinafter Jackman, Rucho, Rebuttal Report] (showing convergence of defense-side and plaintiff-side calculations upon correction of this definitional error).
It is true that calculation of the EG is not entirely mechanical, but expert witnesses have very limited discretion. Discretion may enter at two points. First, for ease of computation and because of data limitations, experts sometimes use a simplified approximation of the full EG formula; the simplified version is only exactly correct if the number of votes is constant across districts and no one votes for third-party or independent candidates.7 But because the number of voters does not vary greatly across districts, and because minor party and independent candidates rarely garner many votes, the simplified EG is extremely highly correlated with the “full” version. See McGhee, Measuring Efficiency in Redistricting, supra, at 40– 43.8 As a defense expert stated in this case, the simplified method provides “‘an appropriate and useful summary.’” Whitford, 218 F.Supp.3d at 907.
7 The simplified formula is: EG ≈ (Party X Seat Margin) – 2 * (Party X Vote Margin). The seat margin is the party’s percentage of legislative seats, minus 50%; the vote margin is the party’s percentage of the total statewide vote in legislative elections, minus 50%. See McGhee, Measuring Partisan Bias, supra.
8 Amicus has developed a slightly revised version of the formula that is more appropriate when turnout deviations are significant. In this version the baseline 2-to-1 seats-to-votes ratio is maintained and the substantive implications of the measure are very similar. As noted, for American elections generally and the Wisconsin plan in particular, all versions of the EG are highly correlated with each other. See McGhee, Measuring Efficiency in Redistricting, supra.

14
Second, it is best practice to calculate the EG using “imputations” for the two-party vote in uncontested seats, and different experts may use slightly different imputation methods. See generally Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 850– 53 (2015); McGhee, Measuring Partisan Bias, supra.9 The imputed two-party vote for a district represents the expected vote if the seat had been contested. In theory, one could compute the EG using actual vote totals in districts where the incumbent went unchallenged. But that would be tantamount to saying that supporters of the out-of-power party who have been “cracked” into districts held by strong, unchallenged incumbents of the gerrymandering party were not in fact rendered impotent—even though a protest, writein vote would have been pointless, and even though their vote would have been tabulated as wasted if a challenger had run and lost. Imputation allows the EG to account for votes that probably would have been wasted had a challenger run.
The imputed vote for a legislative district is based on the actually observed relationship in a state between the district-level vote shares of partisan candidates in statewide elections and the vote shares of legislative candidates running to represent the district. The associated methods are standard in the statistical literature,10 and generally accepted methods
9 Imputation is also used when computing other measures of partisan bias. See, e.g., Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. POL. SCI. 514, 549–50 (1994).
10 See generally RODERICK J. A. LITTLE & DONALD B. RUBIN, STATISTICAL ANALYSIS WITH MISSING DATA (2d ed. 2014); Eric McGhee, Memo to the Indiana Legislature on Efficiency Gap

15
yield very similar EG estimates. See, e.g., Jackman, Rucho, Rebuttal Report, supra, at 9–10 (showing convergence of EG calculations by different experts); id. at 16–17 (reporting 98% correlation between EGs calculated using different imputation approaches). Notably, none of the defense-side experts in this or the North Carolina case where the EG was offered questioned the imputations.
D. Because the EG Provides a Snapshot Picture of Relative Wasted Votes, Assessments of Partisan Fairness Benefit From Further Analysis.
The EG is calculated using actual outcomes in a given election. The number of votes deemed wasted for each party in a district depends on which candidate actually won that seat, and, save for uncontested seats, on the actual number of votes cast for each party’s candidate in that district.11 The EG thus provides an election-specific “snapshot” picture of relative wasted votes. This snapshot helps to establish that the “feared inequality” is not “hypothetical,” see LULAC, 548 U.S. at 420 (plurality opinion of Kennedy, J.), but before invalidating a map, courts should determine from the evidence whether a large observed EG is likely to persist. See Whitford, 218 F.Supp.3d at 898–910; Stephanopoulos & McGhee, supra, at 887–90. If a large EG was simply the result of one party having a
Imputations, Aug. 5, 2016, available at https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3007178.
11 Even when the “simplified” method is used, the EG relies on actual election results; the simplified method just uses statewide totals (seat margin, and legislative vote margin) rather than summing wasted votes on a seat-by-seat basis. See supra Part I.C.

16
good year and sweeping all the competitive districts, there would be no reason for a court to step in.
To gauge persistence of partisan advantage, expert witnesses perform sensitivity tests.12 (Gerrymanderers do too.13) A sensitivity test is a statistical projection of potential future election results, grounded in the historically observed range of variation in elections in the state. Professor Jackman’s sensitivity tests below indicated, and the district court found, that the proRepublican EG in the Wisconsin map was very likely to persist throughout the decennial period. Whitford, 218 F.Supp.3d at 905–06. This finding is hardly a surprise, given that sensitivity tests conducted by the expert whom the Wisconsin redistricters hired to evaluate potential maps reached the same conclusion. See id. at 857–58.
Judicial inquiries into partisan fairness might also consider the expected EG: the EG as the map-maker sees it, with an eye to the future but without knowing which election years will be banner years for each party, which incumbents will die or retire, and which seats will be contested by strong challengers. The expected EG is simply the predicted EG under a range of electoral scenarios, weighted by the likelihood of those scenarios.14 Calculating the expected EG is just
12 The district court used the term “swing analysis” to describe sensitivity tests. See Whitford v. Gill, 218 F.Supp.3d 837, 899– 905 (2016).
13 An expert hired by the firm that designed the map at issue in this case carefully investigated how proposed plans would likely “perform” for the Republican Party under a range of voteshare scenarios. See Whitford, 218 F.Supp.3d at 857–58.
14 Because the expected EG accounts for the range of electoral scenarios, it won’t be thrown off by the idiosyncrasies of any given election, such as which candidates opted to run, what strategies

17
like calculating the realized EG, except that the twoparty vote is imputed for every seat, not just the uncontested ones.15 This kind of analysis is common for those who draw gerrymandered maps.16
The expected EG measures the opportunity to secure representation under a given map (i.e., the field on which the political parties do battle), whereas the realized EG measures outcomes (i.e., the results of the battle—votes cast and seats won or lost). Though amicus takes no position on whether the expected EG should be used in a given case, he observes that in related contexts, courts have often favored such opportunity-based standards. See, e.g., Johnson v. De Grandy, 512 U.S. 997, 1013–14 & n.10 (1994) (distinguishing opportunity and outcome standards for votedilution claims under the Voting Rights Act, and expressly rejecting the latter); Frank v. Walker, 768 F.3d 744, 748–49, 752–54 (7th Cir. 2014) (Easterbook, J.) (defending opportunity-not-outcome standards for “vote denial” cases under the Equal Protection Clause and the Voting Rights Act).
they pursued, and the ups and downs of presidential and gubernatorial approval ratings.
15 The expected EG was calculated for a pending case in North Carolina, which was brought before any elections had been held under the map at issue. The forecasts used in pre-election calculations proved to be extremely accurate. See Simon Jackman, Rucho, Rebuttal Report, League of Women Voters of North Carolina v. Rucho, No. 1:16-CV-1026 (M.D.N.C. 2017) at 16 [hereinafter Jackman, Rucho, Rebuttal Report] (“[T]he efficiency gap predicted . . . for an electoral environment like that of 2016 was accurate to within a percentage point.”).
16 See supra note 9.

18
II. THE OBJECTIONS TO THE EFFICIENCY GAP AS A MEASURE OF PARTISAN ADVANTAGE ARE EASILY MET.
It has been said that the EG rests on a mistaken conception of wasted votes; that it is excessively or misleadingly volatile; that it fails to account for democratic values other than partisan symmetry; that it is “biased” toward the Democratic Party; and that it requires proportional representation. These objections are easily met.
A. The Efficiency Gap Does Not Rest on a Mistaken Conception of Wasted Votes.
Some critics maintain that no summary measure of wasted votes should be used to gauge the effect of a partisan gerrymander because all votes have some potential to affect the representative’s behavior. Because of this, the critics say, there simply is no identifiable class of “wasted” votes. See Brief for Appellants at 49–50, Whitford v. Gill, 218 F.Supp.3d 837 (2016) [hereinafter Appellants’ Brief]; Brief of Amici Curiae Wisconsin State Senate and Wisconsin State Assembly in Support of Appellants 18–19, Whitford v. Gill, 218 F.Supp.3d 837 (2016) (No. 16-1161), 2017 WL 1506064. Other critics accept the idea of tabulating wasted votes, but argue that the EG equation uses an incorrect definition or standard to summarize relative wasted votes. See, e.g., Whitford, 218 F.Supp.3d at 957–59 (Griesbach, J., dissenting) (arguing that votes for the winner should be deemed “wasted” insofar as the winner’s vote share exceeds that of the runner-up, rather than 50%); cf. McGhee, Measuring Efficiency in Redistricting, supra (investigating this and other proposed revisions to the EG formula). Neither objection has merit.

19
The all-votes-may-have-influence argument overlooks the fact that winning more seats without winning over more voters is the point of a partisan gerrymander. The EG is thus grounded in the Efficiency Principle: Any measure of partisan effect must indicate a greater advantage for a party when the seat share for that party increases without any corresponding increase in its vote share. See Part I.A, supra. Indeed, it is precisely because votes cast by legitimate voters are valued in a democracy that normative concerns are raised if one party’s votes are devalued because they are less effectively converted into seats than another party’s votes due to partisan gerrymandering. As Justice Kennedy noted in Vieth, “The inquiry . . . is whether political classifications were used to burden a group’s representational rights.” Vieth 541 U.S. at 315. In the absence of some “compelling interest,” id., that concern is not ameliorated because the votes, although devalued in terms of winning seats (the partisan gerrymanderer’s concern), might still have some value in influencing an office holder of the opposing party.
Moreover, the “all-votes-may-have-influence” argument elevates a theoretical possibility above everything that is actually known about elections and representation.17 A legislator’s margin of victory has very little effect on how she or he votes on bills; by contrast, the effect of replacing a Democratic legislator with a
17 The theoretical possibility is not legally determinative. Though a plurality of this Court once treated the presumption that voters who support the losing candidate have influence over the winner as a reason not to strike down partisan gerrymanders, that plurality also recognized that the presumption is subject to “actual proof.” See Davis v. Bandemer, 478 U.S. 109, 131– 32 (1986).

20
Republican or vice versa is huge, holding constant district characteristics. See, e.g., Stephen Ansolabehere et al., Candidate Positioning in U.S. House Elections, 45 AM. J. POL. SCI. 136 (2001); Barry C. Burden, Candidate Positioning in US Congressional Elections, 34 BRIT. J. POL. SCI. 211 (2004); Devin Caughey et al., Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies, 16 ELECTION L.J. (forthcoming 2017), available at http:// cwarshaw.scripts.mit.edu/papers/CTW_efficiency_gap _170515.pdf (May 15, 2017); David S. Lee et al., Do Voters Affect or Elect Policies? Evidence from the U.S. House, 119 Q.J. ECON. 807 (2004); Nolan McCarty et al., Does Gerrymandering Cause Polarization?, 53 AM. J. POL. SCI. 666, 671 fig. 3 (2009); Keith T. Poole, Changing Minds? Not in Congress!, 131 PUB. CHOICE 435 (2007).
Lack of representation for citizens who vote for the losing candidate extends even to rudimentary matters of constituent service. In just the past few years, data vendors have revolutionized campaigns by merging official state voter files with consumer databases, creating estimates of the partisanship and turnout propensities of every registered voter. See generally DANIEL KREISS, PROTOTYPE POLITICS: TECHNOLOGYINTENSIVE CAMPAIGNING AND THE DATA OF DEMOCRACY (2016); EITAN HERSH, HACKING THE ELECTORATE: HOW CAMPAIGNS PERCEIVE VOTERS (2015). Sophisticated legislators are now using such estimates to screen constituent inquiries, disregarding citizens whom the data vendors classify as unlikely to vote for the incumbent. See HERSH, supra, at 200–05.
Some critics have asserted a related point: that voters make complex decisions but the EG assumes they only care about parties. See, e.g., Brief of Amici

21
Curiae The Republican National Committee and the National Republican Congressional Committee in Support of Appellants 41–50, Whitford v. Gill, 218 F.Supp.3d 837 (No. 16-1161), 2017 WL 1548280 [hereinafter RNC Amici Brief]. This is incorrect. The EG does not ignore independent or swing voters. Rather it requires that neither party be forced to win over more of them to avoid a “wasted vote” deficit. Moreover, the sensitivity testing described above can explore the consequences of significant nonpartisan voting behavior, should evidence of such behavior emerge in the future.
As for the criticism that the EG formula uses an incorrect definition to summarize relative wasted votes, amicus has for a forthcoming article investigated proposed reformulations, including Judge Griesbach’s argument that votes cast for the winner should be counted as wasted to the extent that they exceed the second-place candidate’s vote share (rather than 50%). See McGhee, Measuring Efficiency in Redistricting, supra. Amicus’s analysis shows that the reformulations would imply a level of responsiveness (in the translation of votes into seats) that deviates from the 1:2 votes-to-seats curve historically typical of American elections, and would be far less consistent with the Efficiency Principle. It follows that a legal standard resting on Judge Griesbach’s preferred definition of wasted votes could disrupt American electoral traditions, while doing a poor job of identifying maps that distribute opposing-party voters for maximum partisan advantage.
Judge Griesbach’s argument also elides the fact that in our essentially two-party system a candidate cannot be sure of winning without 50% of the vote because votes not cast for the candidate of one party are almost

22
always cast for the candidate of the other party. Unlike Judge Griesbach’s baseball example based on runs not vote percentages, a Republican who wins with 52% of the vote to the Democratic opponent’s 48% would likely have lost had the Republican’s vote share fallen to 48%. To similar effect, if Republicans comprising 4% of the district had been moved into another district and replaced with non-Republican voters, the Republican candidate almost surely would have lost. The 50% threshold embodied in the EG formula indeed has “special significance[] in the democratic process.” Bartlett v. Strickland, 556 U.S. 1, 19 (2009) (plurality opinion of Kennedy, J.).
B. The Putative Volatility of the Efficiency Gap Is a Feature, Not a Flaw.
Like a number of commentators, Judge Griesbach has challenged the EG because it may vary from election to election, particularly under maps in which there are many competitive districts. See Whitford, 218 F.Supp.3d at 959–62 (Griesbach, J., dissenting); see also Appellants’ Brief, supra, at 51–52.
This objection reflects a failure to appreciate two very fundamental points. First, any measure of partisan advantage that takes account of which party actually wins seats has some potential to vary from election to election, particularly if the map in question has a substantial number of competitive districts.18 Such
18 When the number of legislative districts is very small, the standard percentage form of the EG should be converted to raw seats to avoid exaggerating either the size or volatility of the bias in the plan. For example, in a two-seat plan a party can increase its seat share (and so its EG) by 50% by winning just one more seat. It would be better to present this change as the one-seat shift that it is. Small-seat plans like this are easily identified and managed in any potential litigation. Cf. Stephanopoulos &

23
“volatility” simply reflects actual partisan advantage in given elections.
Second, no proponent of judicial action as to partisan gerrymanders maintains that a legislative map should be deemed constitutionally suspect merely on the basis of the EG observed in a single election. It is important to confirm through sensitivity testing that the EG is likely to be durable.19 See Stephanopoulos & McGhee, supra, at 887–90; Whitford, 218 F.Supp.3d at 898–910.
In sum, the so-called volatility of the EG simply reflects realities on the ground that vary from election to election. Far from being a weakness, it is actually a safeguard against excessive judicial involvement in partisan gerrymandering cases, relative to measures that might lead courts to think that an observed partisan asymmetry is more stable than it actually is.
C. The Efficiency Gap Does Not Account for All Democratic Values—Nor Should It.
The EG has been faulted for its failure to account for certain democratic values. Judge Griesbach observed, for example, that the EG “counts” all districts equally (a wasted vote is a wasted vote, regardless of the district in which it was cast), whereas as a functional matter the median district is more important than the others. See Whitford, 218 F.Supp.3d at 952–53. And he pointed out that large EGs could materialize for
McGhee at 887–89 (proposing a two-seat threshold for cases about congressional redistricting).
19 The volatility objection would also vanish if courts grounded liability rulings on the expected EG, rather than the realized EG. See supra Part I.D.

24
entirely legitimate reasons, as may occur if districts were drawn for congruence with political subdivision boundaries in a state where supporters of one political party happened to be more efficiently distributed with respect to those boundaries than supporters of the other party. Id. at 962–63.
Such objections are easily met because the EG only measures partisan symmetry, not everything that might be deemed good or bad about a map of legislative districts. The argument that the EG “fails to account for everything” just restates the principal argument against judicial intervention in the malapportionment cases, namely, that because the equalpopulation norm is not the exclusive consideration in designing maps for fair and effective representation, the norm should not be judicially enforced at all. See Baker v. Carr, 369 U.S. 186, 301–24 (1962) (Frankfurter, J., dissenting). The argument is no stronger today than it was in 1962.
To address potentially competing values, courts may construct a framework under which other values can justify legislative maps that deviate substantially from the equality norm. Amicus takes no position on what the substantial-asymmetry trigger for heightened scrutiny should be, or on what state interests are weighty enough to justify large asymmetries.
Similarly, if courts conclude that there is no reason to intervene unless the plaintiff political party would have some chance of winning the median district under a fair map, courts could require plaintiffs to prove both substantial partisan bias under the challenged map and potential-majority status under an unbiased map.

25
D. The Efficiency Gap Is Not Biased Toward Democrats.
It has been suggested that the EG’s appealing veneer conceals a biased mechanism for indicting Republican gerrymanders while insulating Democratic gerrymanders from scrutiny. See Appellants’ Brief, supra, at 50–51; RNC Amici Brief.
Notably, those who assert that the EG is “biased” toward Democrats haven’t actually shown or even advanced a theory as to how EG calculation could lead to exaggerated estimates of the partisan asymmetry of Republican gerrymanders and deflated estimates of the partisan asymmetry of Democratic gerrymanders.20 Nor is it the case, historically, that the EG has shown a consistent Republican advantage in enacted maps. In the 1970s and 1980s (when the RNC favored judicial policing of partisan gerrymanders, contrary to its position today21) enacted maps generally had a proDemocratic EG, whereas recent maps have tended to favor Republicans (hardly surprising given Republican control of state legislatures). See Stephanopoulos & McGhee, supra, 882–84 fig. 8; Jackman Wisconsin Report, supra, at 44. The EG also suggests that
20 They rely instead on hypothetical examples of imaginary gerrymanders under utterly implausible political conditions. Compare Brief of Amici Curiae The Republican National Committee and the National Republican Congressional Committee in Support of Appellants 16–22, Whitford v. Gill, 218 F.Supp.3d 837 (No. 16-1161), 2017 WL 1548280 (presenting hypothetical example from the defendants’ expert in pending North Carolina case), with Jackman, Rucho, Rebuttal Report, supra, at 14–16 (explaining the ridiculous features of this example).
21 See Brief Amicus Curiae of the Republican National Committee in Support of Appellees *3–8, Davis v. Bandemer, 478 U.S. 109 (1986) (No. 84-1244), 1985 WL 670030.

26
Democratic and Republican gerrymanders are equally effective: Redistricting under unified Democratic control shifts the EG in the pro-Democratic direction by about the same amount as redistricting under unified Republican control shifts the EG in the proRepublican direction. See Nicholas Stephanopoulos, The Causes and Consequences of Gerrymandering, 59 WM. & MARY L. REV. figs. 1 & 2 (forthcoming 2017), available at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2990638; see also Nicholas O. Goedert, Gerrymandering or Geography? How Democrats Won the Popular Vote but Lost the Congress in 2012, RES. & POL., Apr.–June 2014.22
To the extent those arguing “Democratic bias” have a discernible theory, it is not about the EG per se, but about the very concept of partisan symmetry. The argument is that the fairness (for equal protection purposes) of a map should not be gauged by symmetry— i.e., an equal chance for left-of-median and right-ofmedian voters to secure a legislative majority—but instead by “traditional” districting principles such as compactness and contiguity with political subdivision boundaries. See, e.g, Appellants’ Brief, supra, at 50–51 (arguing against a “zero-gap baseline”); RNC Amici Brief, supra, at 8–14. This issue goes beyond the scope of this brief, though there are good reasons for this Court to choose the symmetry norm,23 while
22 Similar results on the effects of unified control have been found using other measures of partisan symmetry. See Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 AM. POL. SCI. REV. 541, 553 (1994); Richard G. Niemi & Simon Jackman, Bias and Responsiveness in State Legislative Districting, 16 LEGIS. STUD. Q. 183, 195 (1991).
23 Justice Kennedy in Vieth warned against legal standards that valorize compactness and contiguity with subdivision boundaries because such criteria could “benefit one political party over

27
embedding that norm within a doctrinal framework that allows states to justify deviations as may be reasonably necessary to achieve other legitimate objectives.
E. The Efficiency Gap Does Not Require Proportional Representation.
Appellants’ objection that the EG requires proportional representation confuses two potential meanings of the term “proportional representation.” See Appellants’ Brief, supra, at 49–50. The classical or Millian usage denotes an electoral system in which small groups of citizens who share an interest can band together and secure a fraction of legislative seats approximately equal to the group’s share of the voting-eligible population. See JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 146 (Prometheus Books 1991) (1861) (“In a really equal democracy, every or any section would be represented [with seats in the legislature], not disproportionately, but proportionately. . . . Man for man, [minorities] would be as fully represented as the majority.”). Though the Millian usage remains standard, one might also use “proportional representation” to describe any electoral system in which there exists some usual relationship between a
another.” Vieth v. Jubelirer, 541 U.S. 267, 308–09 (2004) (Kennedy, J., concurring in judgment). The normal-map alternative to the “zero-gap baseline” is vulnerable to Justice Kennedy’s objection because it could result in judicial invalidation of symmetric maps when applied to a state where one party’s voters are more efficiently distributed than the other’s. For example, a zero-EG plan in a state where the putatively normal maps favored Republicans by 10% would, as a matter of law, have a pro-Democratic “bias” of 10% (the difference between the EG of the enacted map, zero, and the typical EG of putatively normal maps, 10%).

28
political party’s vote shares and seat shares. Appellants and Judge Griesbach invoke the latter conception when they criticize the EG for implying a 2:1 “winner’s bonus,” i.e., seat margins about twice as large as vote margins. See Whitford, 218 F.Supp.3d at 947–51 (Griesbach, J., dissenting); Appellants’ Brief, supra, at 49–50.
By contrast, this Court, in the many cases in which it has “set its face against the claim . . . that the Constitution somehow guarantees proportional representation,” City of Mobile, Ala. v. Bolden, 446 U.S. 55, 79 (1980) (plurality opinion), has consistently used the term in the standard Millian sense. See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 156 (1971) (reversing district court’s constitutional vote dilution holding, on the ground that the lower court’s decision “[expressed] the proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat”) (emphasis added); Bolden, 446 U.S. at 75– 80 (discussing Whitcomb—and the prospect of various and sundry vote-dilution claims from, e.g., “union oriented workers, the university community, [and] religious or ethnic groups”—in rejecting the notion that Reynolds v. Sims’ (377 U.S. 533 (1964)) recognition of a right to “equally effective voice” implies “proportional representation as an imperative”); Bandemer, 478 U.S. at 145–47 (O’Connor, J., concurring in the judgment) (positing if partisan gerrymandering claims were justiciable, this would lead to a guarantee of “rough proportional representation for all political groups,” and an unmanageable proliferation of claims from “political, religious, ethnic, racial, occupational, and socioeconomic groups”) (emphasis added); Vieth, 541 U.S. at 288 (plurality opinion) (“[The Constitution] nowhere says that farmers or urban dwellers, Christian

29
fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.”).
Nothing about the EG or other proposed symmetry metrics would favor proportional representation in the Millian sense. To the contrary, as Part I.B of this brief explained, an EG of zero implies not proportional representation but the very winner’s bonus that has been historically typical of United States elections.
It is possible that if this Court upholds the lower court’s decision, minor parties might start bringing partisan-gerrymandering claims. But the EG metric wouldn’t do them any good. In a forthcoming publication, see McGhee, Measuring Efficiency in Redistricting, supra, amicus shows that the EG can be extended to a world in which minor parties win a nontrivial share of the vote, but this extension of the EG does not indicate “bias” against minor parties—even from a complete lack of legislative seats—unless the party wins a share of the vote that far exceeds what minor parties have historically achieved in U.S. elections.24
III. THE EFFICIENCY GAP IS CLOSELY RELATED TO THE OTHER MEASURES OF PARTISAN SYMMETRY, BOTH ARITHMETICALLY AND EMPIRICALLY.
Appellants fault respondents for encouraging courts to consider a supposed “hodgepodge” of metrics of partisan bias or symmetry. Appellants’ Brief, supra, at 45–48. This is said to leave district courts with
24 Formally, there is no EG bias against the party (from a lack of seats) until the party wins a fraction of the statewide vote in excess of 1/2k, where k is the number of parties.

30
unbounded discretion to “pick a winner” in each case. Id. at 46–47. But all the metrics are tied together by a common concept—the neutral principle of partisan symmetry—and the metrics are arithmetically related to one another and highly correlated in politically competitive states like Wisconsin. What social science has produced is not a “hodgepodge” but a set of closely related analytical tools for measuring a common concept.
A. Arithmetically, the Symmetry Metrics Are Closely Related to One Another.
Scholars have variously measured partisan symmetry with Gelman-King bias, discussed in Part I.B above; the EG; the “mean-median difference,” which is the gap between a party’s mean district-level vote share and its median district-level vote share;25 and the “average winner’s margin difference,” which is the difference between the average margin of victory of the winning candidates of each party.26
The most salient difference among these metrics is that the EG can be used to evaluate maps in noncompetitive states, while the Gelman-King and meanmedian metrics would depend on fanciful counterfactuals in such states.27 For that reason the proponents of Gelman-King recommend using it only in competitive states. See supra Part I.B.
25 Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 ELECTION L.J. 312, 316 (2015).
26 Samuel S.H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 STAN. L. REV. 1263, 1303–04 (2016) (calling this the “lopsided-margins test”).
27 This difference may prove critical for partisan gerrymandering claims about congressional districts, because partisan bias (or

31
But in competitive states like Wisconsin, the differences are less important than the similarities. Figure 1, below, shows a hypothetical votes-to-seats curve, together with the quantities corresponding to the mean-median difference, and Gelman-King bias. As can be seen, the mean-median difference indicates the statewide two-party vote margin (from 50%) a party needs to control 50% of the seats, whereas GelmanKing bias indicates the seat margin that a party receives if it wins 50% of the vote. Indeed, the meanmedian difference is equivalent to Gelman-King bias divided by the slope (responsiveness) of the votes-toseats curve at the tied-election point. See Jackman, Rucho, Rebuttal Report, supra, at 8.
If one calculates the EG at these points in the seatsvotes curve, the measures are almost perfect substitutes for each other. Gelman-King bias and the EG are mathematically identical when both parties have 50% of the vote, and when the median is 50% (giving both parties half the seats) the EG is precisely twice the mean-median difference. See McGhee, Measuring Efficiency in Redistricting, supra. Furthermore, it has been shown that the “average winner’s margin difference” is mathematically identical to the EG under all conditions, not just at certain counterfactual points on the votes-to-seats curve. The bottom line is that, although the EG has distinct advantages as explained in Part I.B., all of these measures are closely related
its absence) in Congress as a whole depends on redistricting decisions made in uncompetitive as well as competitive states. An additional seat for Congress is equally significant whether it comes from an uncompetitive state like California or Texas or a competitive one like North Carolina or Pennsylvania. See Stephanopoulos & McGhee, supra, at 861.

33
states. See Plaintiffs’ Trial Brief at 29–31, Whitford v. Gill, 218 F.Supp.3d 837 (2016) (No. 15-cv-421-bbc) (discussing and illustrating state legislative findings); Jackman, Rucho, Rebuttal Report, supra, at 2–8, (reporting congressional findings). The divergence in uncompetitive states is not surprising; it reflects the speculative nature of projecting seat-shares at the 50% vote-share point in those states where one party consistently dominates the other, as explained in Part I.B.
Jackman also found the mean-median difference and Gelman-King bias to be highly correlated with one another, in both competitive and uncompetitive states. See Jackman, Rucho, Rebuttal Report, at 8. This correlation is also to be expected given the mathematical connection between the two measures noted above.
Amicus has calculated for this brief the EG, GelmanKing bias, and mean-median difference of the current Wisconsin assembly map for 2016. Despite widespread claims of a political transformation in Wisconsin in the 2016 presidential election, Republicans received just 52% of the two-party vote in the state’s Assembly elections.28 Republicans nonetheless turned this narrow margin into 65% of the seats. The EG for the election favored Republicans, and by a substantial 11 percentage points. Gelman-King bias (13%) and the mean-median difference (7%) also indicate that the map continues to favor Republicans.29
28 This is the vote share calculated with imputations for uncontested seats (i.e., estimating the parties’ vote shares in these districts had the incumbent been challenged by a candidate of the other party).
29 This is consistent with record evidence showing that, in Wisconsin, the EG and Gelman-King bias have been very closely correlated in competitive election years. See Brief of Plaintiffs

34
The bottom line is that, in Wisconsin and other competitive states a map that has been shown to be a “symmetry outlier” by one measure is also likely to be an outlier using the other metrics.30
CONCLUSION
Amicus hopes that the explanation of the Efficiency Gap provided in this brief will help this Court make an informed judgment about whether to employ the EG, alone or in conjunction with the larger family of partisan symmetry metrics, in determining the constitutionality of partisan gerrymanders.
Respectfully submitted,

CHRISTOPHER S. ELMENDORF UNIVERSITY OF CALIFORNIA,
DAVIS SCHOOL OF LAW 400 Mrak Hall Drive Davis, CA 95616 (530) 752-5756 cselmendorf@ucdavis.edu

DANIEL F. KOLB Counsel of Record
LYNN E. BUSATH JOHN HAMMOND HEATH ELIZABETH A. TIPPETT DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 Daniel.Kolb@DavisPolk.com

Counsel for Amicus Curiae Eric McGee, Public Policy Institute of California

August 10, 2017

at 26–31, Whitford v. Gill, 218 F.Supp.3d 837 (2016) (No. 15-cv421-bbc).
30 That said, if one uses the EG, one can consider a wider range of states and historical periods when determining the level of bias sufficient to mark a map as an outlier. The reason is that the EG can be computed for any map in any state, whereas Gelman-King bias and the mean-median difference are applicable only to states in which the parties are pretty evenly matched.

 
 No. 16-1161

IN THE
Supreme Court of the United States
________________

BEVERLY R. GILL, ET AL.,

Appellants, v.

WILLIAM WHITFORD, ET AL.,

________________

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ________________
BRIEF OF BERNARD GROFMAN AND RONALD KEITH GADDIE AS AMICI CURIAE
IN SUPPORT OF NEITHER PARTY ________________

Thomas M. Bondy

E. Joshua Rosenkranz

Avi Daniel Rosenblit

Counsel of Record

ORRICK, HERRINGTON & Rachel Wainer Apter

SUTCLIFFE LLP

Hannah Garden-Monheit

1152 15th Street NW ORRICK, HERRINGTON &

Washington, DC 20005 SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

Table of Authorities ................................................. iii

INTERESTS OF AMICI CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT ................................................ 4

ARGUMENT ............................................................. 7

I.

Courts Must Provide A Check On

Egregious Partisan Gerrymandering .......... 7

II. A Justiciable Partisan Gerrymandering Claim Requires Proof Of Partisan Asymmetry, Lack Of Responsiveness, And Causation ................ 10

A. Partisan asymmetry means there is a disparate impact on voters based on political affiliation. ........................................ 12

B. Lack of responsiveness means the ordinary political process cannot provide a remedy ................. 14

C. Causation means that the partisan asymmetry is a result of invidious discrimination, not neutral factors or chance................. 18

ii
III. The Court Has Never Before Confronted Reliable Evidence Of These Three Discrete Elements................. 22
A. Bandemer, Vieth, and LULAC did not consider evidence of partisan asymmetry, lack of responsiveness, and causation........ 23
B. The analytical tools for evaluating these three elements have dramatically improved since Bandemer, Vieth, and LULAC ............................................. 26
CONCLUSION ........................................................ 32

iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. Johnson, 521 U.S. 74 (1997)..................................................3
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015)............................................3
Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988).........................2
Baldus v. Members of Wisc. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wisc. 2012)....................................................4
Bartlett v. Strickland, 556 U.S. 1 (2009)..................................................22
Brown v. Thomson, 462 U.S. 835 (1983)..............................................22
Bush v. Vera, 517 U.S. 952 (1996)................................................3
Cox v. Larios, 542 U.S. 947 (2004)................................................4
Davis v. Bandemer, 478 U.S. 109 (1986)......2, 3, 7, 8, 13, 16, 23, 24, 29

iv
Gaffney v. Cummings, 412 U.S. 735 (1973)..............................................18
Georgia v. Ashcroft, 539 U.S. 461 (2003)................................................3
Holder v. Hall, 512 U.S. 874 (1994)................................................3
Johnson v. De Grandy, 512 U.S. 997 (1994)................................................3
League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006)............3, 21, 23, 25, 26, 28, 29
Miller v. Johnson, 515 U.S. 900 (1995)................................................3
Page v. Va. State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029 (E.D. Va. June 5, 2015)..........................................3
Shaw v. Hunt, 517 U.S. 899 (1996)................................................3
Shaw v. Reno, 509 U.S. 630 (1993)................................................3
Shelby County, Alabma v. Holder, 133 S. Ct. 2612 (2013)............................................3
Thornburg v. Gingles, 478 U.S. 30 (1986)..................................................3

v
Vieth v. Jubelirer, 541 U.S. 267 (2004)...................................... passim
Other Authorities
Amici Br. of Prof. Gary King et al., League of United Latin American Citizens (LULAC) v. Perry, Nos. 5204, 5-254, 5-276, 5-439, 2006 WL 53994 (U.S. Jan. 10, 2006)...................................26
Amicus Br. of Samuel S. Wang, Harris v. Ariz. Indep. Redistricting Comm’n, No. 14-232, 2015 WL 6774017 (U.S. Nov. 2, 2015) ...............................................27
Charles S. Bullock, III, & Ronald Keith Gaddie, The Triumph of Voting Rights in the South (2009)...............................2, 19
Charles S. Bullock, III, Ronald Keith Gaddie, & Justin J. Wert, The Rise and Fall of the Voting Rights Act (2016) ......................................................................1
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, Election L.J. (forthcoming 2017), https://tinyurl.com/y7ohowmy .............................31

vi
Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 312 (2015)......................19, 21, 30
Wendy Tam Cho et al., A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals, 59 William & Mary L. Rev. (forthcoming 2017)...............................................................31
Ronald Keith Gaddie & Charles S. Bullock, III, Elections to Open Seats in the U.S. House: Where the Action Is (2000)..................................................................2
Ronald Keith Gaddie & Charles S. Bullock, III, From Ashcroft To Larios: Recent Redistricting Lessons from Georgia, 34 Fordham Urb. L.J. 997 (2007) ..........................2
Bernard Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 77 (1985)............................20, 24
Bernard Grofman, Measures of Bias and Proportionality in Seats-Votes Relationships, 9 Pol. Methodology 295 (1983) ..............................1

vii
Bernard Grofman & Thomas L. Brunell, The Art of the Dummymander: The Impact of Recent Redistrictings on the Partisan Makeup of Southern House Seats 183 (Peter Galderisi ed., 2005) .....................................................................16
Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 Election L.J. 2 (2007)............1, 12, 13, 14, 17, 18
Bernard Grofman, William Koetzle & Thomas Brunell, An Integrated Perspective on the Three Potential Sources of Partisan Bias: Malapportionment, Turnout Differences, and the Geographic Distribution of Party Vote Shares, 6 Electoral Stud. 457 (1997) ..................................1
Bernard Grofman, Michael Migalski & Nicholas Noviello, The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective, 7 L. & Pol’y 199 (1985) ......................1
Samuel Issacharoff & Jonathan Nagler, Protected from Politics: Diminishing Margins of Electoral Competition in U.S. Congressional Elections, 68 Ohio St. L.J. 1121 (2007) ................................17

viii
Joint Appendix, League of United Latin American Citizens v. Perry (LULAC), Nos. 05-204, 05-254, 05-276, 05-439, 2006 WL 64437 (U.S. Jan. 10. 2006).............25, 29
Justin Levitt, Where Are The Lines Drawn?, All About Redistricting, https://tinyurl.com/aw3qgn5 (last visited Aug. 10, 2017).................................20
Jonathan Mattingly et al., Quantifying Gerrymandering, https://tinyurl.com/yc4cvxkg (last visited Aug. 10, 2017) ..........................................31
Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312 (2015)......................15, 19, 27
Anthony J. McGann et al., Gerrymandering in America (2016)..................................9, 14, 15, 16, 17, 20, 27
Nat’l Conference of State Legislatures, State Partisan Composition, https://tinyurl.com/guos34u (last updated Aug. 1, 2017)............................................9

ix
Richard G. Niemi, Bernard Grofman, Carl Carlucci & Thomas Hofeller, Measuring Compactness and the Role of a Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J. of Pol. 1155 (1990).........................................1
Guillermo Owen & Bernard Grofman, Optimal Partisan Gerrymandering, 7 Pol. Geography Q. 5 (1988).................................1
Pew Research Center, Political Polarization in the American Public, https://tinyurl.com/p4scahz (last updated June 12, 2014) .......................................17
Proportional Representation, Encyclopedia Britannica (2013 ed.), https://tinyurl.com/y6welcph ...............................13
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) ........................15, 28
Samuel S. H. Wang, Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, 16 Election L.J. 367 (2016)........................................................13, 19, 27
Wis. State Assembly Rules (Feb. 8, 2017), https://tinyurl.com/y8rudrg6 .................................8

x
Wis. State Senate Rules (Jan. 17, 2017), https://tinyurl.com/y8rudrg6 .................................8

INTERESTS OF AMICI CURIAE1
Amici are political scientists who specialize in redistricting, including the statistical methods used to detect and measure partisan gerrymandering. Amici have served as expert witnesses and consultants in redistricting cases on behalf of both states and plaintiffs, Republicans and Democrats. They have also published many peer-reviewed articles on the subject.2
1 The parties have consented to the filing of this amicus brief. No counsel for a party authored the brief in whole or in part. No party, counsel for a party, or any person other than amici and their counsel made a monetary contribution intended to fund the preparation or submission of the brief.
2 Professor Grofman’s publications include Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 Election L.J. 2 (2007); Bernard Grofman, William Koetzle & Thomas Brunell, An Integrated Perspective on the Three Potential Sources of Partisan Bias: Malapportionment, Turnout Differences, and the Geographic Distribution of Party Vote Shares, 16 Electoral Stud. 457 (1997); Richard G. Niemi, Bernard Grofman, Carl Carlucci & Thomas Hofeller, Measuring Compactness and the Role of a Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J. of Pol. 1155 (1990); Guillermo Owen & Bernard Grofman, Optimal Partisan Gerrymandering, 7 Pol. Geography Q. 5 (1988); Bernard Grofman, Michael Migalski & Nicholas Noviello, The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective, 7 L. & Pol’y 199 (1985); Bernard Grofman, Measures of Bias and Proportionality in Seats-Votes Relationships, 9 Pol. Methodology 295 (1983).
Professor Gaddie’s publications include Charles S. Bullock, III, Ronald Keith Gaddie, & Justin J. Wert, The Rise and

2
Amici seek to assist the Court in understanding recent developments in social science methodologies for identifying and measuring the extent of partisan gerrymanders. They do not take a position on whether, given the particular facts and expert witness analysis, the district court correctly decided this case. But amici firmly believe that partisan gerrymanders are justiciable, and that this Court should adopt an articulable standard for adjudicating partisan gerrymandering claims. Social science tools now allow courts to diagnose partisan gerrymanders with accuracy and precision. They also allow courts to distinguish ordinary, acceptable politicking from conduct that rises to the level of unconstitutional discrimination against voters based on their political views. If the Court again declines to adopt a standard for unconstitutional partisan gerrymandering, politicians will have free rein to violate associational and representational rights.
Amicus Bernard Grofman is the Jack W. Peltason Chair of Democracy Studies and Professor of Political Science at the University of California, Irvine. He has frequently served as an expert witness and consultant in redistricting cases, including for the State of Indiana in Davis v. Bandemer, 478 U.S. 109 (1986), and
Fall of the Voting Rights Act (2016); Charles S. Bullock, III, & Ronald Keith Gaddie, The Triumph of Voting Rights in the South (2009); Ronald Keith Gaddie & Charles S. Bullock, III, From Ashcroft To Larios: Recent Redistricting Lessons from Georgia, 34 Fordham Urb. L.J. 997 (2007); Ronald Keith Gaddie & Charles S. Bullock, III, Elections to Open Seats In The U.S. House: Where the Action Is (2000).

3
for the plaintiffs in Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988), aff’d, 488 U.S. 1024 (1989). He joined amicus briefs on behalf of neither party in Vieth v. Jubelirer, 541 U.S. 267 (2004), and League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006), arguing that partisan gerrymanders are justiciable. The Court has previously cited Professor Grofman’s work (including volumes he edited) in over a dozen cases,3 and scholars often credit his brief in LULAC with introducing the Court to the first generation of social science analysis of partisan asymmetry.
Professor Grofman has also drawn redistricting plans for federal district courts, non-partisan commissions, and the U.S. Department of Justice—most recently, as the Special Master appointed by a threejudge court after it declared Virginia’s Congressional District 3 unconstitutional. Page v. Va. State Bd. of Elections, No. 3:13-CV-678, 2015 WL 3604029, at *18 (E.D. Va. June 5, 2015), appeal dismissed sub nom. Wittman v. Personhuballah, 136 S. Ct. 1732 (2016). Professor Grofman’s curriculum vitae is available at https://tinyurl.com/y8ppxmvg.
3 See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015); Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013); LULAC v. Perry, 548 U.S. 399 (2006); Vieth v. Jubelirer, 541 U.S. 267 (2004); Georgia v. Ashcroft, 539 U.S. 461 (2003); Abrams v. Johnson, 521 U.S. 74 (1997); Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996); Miller v. Johnson, 515 U.S. 900 (1995); Johnson v. De Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 (1994); Shaw v. Reno, 509 U.S. 630 (1993); Thornburg v. Gingles, 478 U.S. 30 (1986); Davis v. Bandemer, 478 U.S. 109 (1986).

4
Amicus Ronald Keith Gaddie is the President’s Associates Presidential Professor and Chair of the Department of Political Science at the University of Oklahoma and an editor of Social Science Quarterly. He too has served as an expert witness and consultant in numerous redistricting cases, including for the State of Texas in LULAC and for the plaintiffs in Cox v. Larios, 542 U.S. 947 (2004). Most recently, Professor Gaddie worked as a consultant to the Wisconsin legislature’s Republican leadership in drafting Act 43, the map at issue in this case. As the district court explained, the Republican Caucus’s attorneys hired Professor Gaddie to assess, among other things, the expected partisan impact of the proposed maps. J.S. App. 12a-14a, 41a-42a, 127a, 131a, 135a, 138a-39a. Professor Gaddie also testified in defense of the map in the prior Voting Rights Act challenge, Baldus v. Members of Wisconsin Government Accountability Board, 849 F. Supp. 2d 840 (E.D. Wisc. 2012). He did not, however, defend the map’s constitutionality in this litigation. He has always believed that partisan gerrymanders are justiciable. His curriculum vitae is available at https://tinyurl.com/ya62povt.
INTRODUCTION AND SUMMARY OF ARGUMENT
Modern, computer-driven redistricting now allows the political party in power to craft extremely sophisticated partisan gerrymanders. With vastly improved computer speed, memory, and storage, map drawers can design district lines so precisely that they simultaneously maximize their party’s gains and eliminate most competitive districts—ensuring that the party in power enjoys an electoral advantage that

5
endures throughout the following decade, irrespective of voters’ subsequent choices.
Left unchecked, partisan gerrymandering fundamentally undermines our democracy. It is a basic tenet of fair elections that the parties must play by the same rules. But a partisan gerrymander violates that core principle: Under a successful partisan gerrymander, one party needs fewer votes to win representation than the other party. A partisan gerrymander places unequal burdens on voters’ opportunity to elect their representatives, based on the party with which they associate. And where the partisan gerrymander is unresponsive to electoral shifts, only the courts can provide a remedy.
This Court should hold that partisan gerrymandering claims are justiciable. To be precise, partisan gerrymandering occurs when a districting plan penalizes the minority in its ability to translate its voting support into seats compared to what might be expected from a plan drawn on the basis of neutral principles. But not all partisan gerrymanders are unconstitutional. The Court should adopt a test for unconstitutional partisan gerrymandering that requires a showing of three specific elements: partisan asymmetry, lack of responsiveness, and causation.
The first element, partisan asymmetry, is based on the idea that a citizen’s representational rights must not depend on the party with which he chooses to affiliate. Unlike a claim that the plaintiff is entitled to a specified number of seats, an asymmetry standard requires only that the parties and their supporters receive equal treatment—that they have like

6
opportunity to translate their votes into representation. Thus, if Party A would garner, say, 60% of the seats when it wins 53% of the votes, Party B should also garner about 60% of the seats when it wins 53% of the votes. If it would not, partisan asymmetry is present. The second element, lack of responsiveness, screens out cases where the political process can provide a remedy. It examines whether a map is responsive to shifts in voters’ allegiances, such that any disparate effect on voters is unlikely to persist throughout the decade following redistricting. If a map is responsive, then when voters change their allegiances, their representation also changes, making judicial intervention unnecessary. If a map is not responsive, the courts may step in. The third element, causation, requires that, to be actionable, a disparate effect on voters must be the result of invidious, intentional discrimination against disfavored voters—and not merely the natural byproduct of ordinary districting practices or chance.4
These three elements are derived from the Court’s Equal Protection and First Amendment jurisprudence, and the social sciences offer tools for measuring each. Because each of these elements reflects a different concept, it is important to recognize that no one number tells it all. Rather, the Court should adopt a test for partisan gerrymandering that makes each
4 Intent can also be proven through non-statistical evidence—for example, legislators’ own statements about their motives; departures from traditional districting criteria, such as irregular-shaped districts; and process considerations like secrecy, limited debate, or party-line voting in the enactment of the map. We focus here on the applicable social science evidence.

7
of these three elements a necessary, but not sufficient, condition of a claim.
In none of the Court’s prior partisan gerrymandering cases did the plaintiffs propose such a test, much less offer evidence of all three elements. And the statistical tools for detecting and measuring partisan gerrymanders have improved greatly since the Court last considered partisan gerrymandering in LULAC. Courts—assisted by competent experts—can now reliably and accurately identify and measure the impact of partisan gerrymanders, including determining whether invidious discrimination is the cause of any disparate burden on one political party, or whether any disadvantage results instead from permissible, neutral factors or random chance. The courts can, and should, play a role in policing improper partisan gerrymanders.
ARGUMENT
I. Courts Must Provide A Check On Egregious Partisan Gerrymandering.
Invidious partisan gerrymandering occurs when a political party intentionally redraws legislative district lines to give itself a durable electoral advantage over the party out of power—usually by “packing” voters who affiliate with the opposing party into a few safe districts, or by “cracking” them across multiple districts to dilute their voting power. See Bandemer, 478 U.S. at 117 n.6 (explaining “the familiar techniques of political gerrymandering”). In so doing, a partisan gerrymander discriminates against voters in their representational rights because of their views

8
and political associations in a way that cannot realistically be ameliorated through the ordinary electoral process. See Vieth, 541 U.S. at 314 (opinion of Kennedy, J.) (“First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means … where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.”) (opinion of Kennedy, J.); Bandemer, 478 U.S. at 124 (“[E]ach political group in a State should have the same chance to elect representatives of its choice as any other political group.”).
This discrimination in representational rights has real-world consequences. A voter who supports a disfavored party is denied an equal opportunity to use her vote to affect the representation of her district, as well as the partisan composition of the legislature as a whole. And the composition of the legislature carries high stakes. In states using a caucus system, the party holding the majority of a chamber’s seats controls all aspects of the legislative agenda—from what bills will see the light of day to the budget, procedural rules, committee assignments, and so forth. See, e.g., J.S. App. 7a-9a, 106a; Wis. State Assembly Rules (Feb. 8, 2017); Wis. State Senate Rules (Jan. 17, 2017). Available at https://tinyurl.com/y8rudrg6. Indeed, even in states where the majority party has less formal agenda-setting power, the partisan makeup of the legislature directly impacts the legislation that is introduced, debated, and passed.

9
There is compelling evidence that the 2010 redistricting cycle yielded partisan gerrymandering of a magnitude that is qualitatively and quantitatively different from what we have seen in the past—as much as three times more partisan bias than in the 2000 redistricting cycle—even when controlling for residential patterns of voters and demographic change. Anthony J. McGann et al., Gerrymandering in America 4-5, 97-98 (2016). Indeed, there were strong increases in bias even where the same party controlled both the 2000 and 2010 redistricting processes. Id. at 174. This increase in the aggressiveness of partisan gerrymanders may be driven in part by the fact that, as a result of the Court’s “signal[] in Vieth v. Jubelirer (2004) that it would not intervene …[,] state legislatures did not have to worry about the threat of legal oversight and pushed partisan advantage to its limits” during the 2010 cycle. Id. Absent a judicial check, the level of egregious partisan gerrymandering may worsen still in 2020 because of a marked increase in the number of legislatures under unified partisan control. See Nat’l Conference of State Legislatures, State Partisan Composition, https://tinyurl.com/guos34u (last updated Aug. 1, 2017).
Whether courts should police egregious partisan gerrymanders is not a matter of one’s political leanings. While evidence suggests that at a national level, the net benefits of partisan gerrymandering currently accrue to Republicans, in the past, the benefits have accrued to Democrats. McGann et al., supra, at 71-72, 88. Whichever party is in power has strong incentives to change the map to keep itself there. In either case, it is the voters who lose: Their associational and representational rights are undermined based upon their

10
political views, and incumbents are entrenched in office without regard to changes in voter preferences.
The courts must serve as a neutral check. If the Court again declines to adopt a standard for unconstitutional partisan gerrymandering, politicians will have free rein to wield the technological advances we discuss below to craft ever more egregious partisan gerrymanders. Continued judicial abdication would ensure only that our representatives are selected by the self-dealing maps they enact, rather than elected by the people they ostensibly serve—freezing into place for a decade electoral advantages that are, for all practical purposes, impervious to changes by the electorate.
II. A Justiciable Partisan Gerrymandering Claim Requires Proof Of Partisan Asymmetry, Lack Of Responsiveness, And Causation.
Social science now provides tools for determining whether voters have been subjected to durable disparate treatment—as well as for measuring the precise magnitude of any such disparity and for ruling out neutral causes. These tools enable courts to differentiate between disparate burdens on representational rights that are merely incidental to ordinary districting processes, and those that are the result of intentional discrimination against disfavored voters.
There is consensus among social scientists that three discrete concepts are critical to detecting and measuring the extent of an unconstitutional partisan

11
gerrymander: (1) partisan asymmetry, (2) lack of responsiveness of electoral outcomes to changes in voter decisions, and (3) causation. The Court should adopt a test for unconstitutional partisan gerrymanders that makes proof of each of these elements necessary for a claim. Together, these elements—which, although independently derived, largely parallel the standard proposed by the plaintiffs here—are key to demonstrating that voters have suffered disparate and durable burdens on their representational rights because of their political views and associations. They also provide evidence as to whether any differential treatment is intentional or instead is the result of other, neutral factors.
This test is not based on an abstract notion of fairness akin to a requirement that seat share equal the party’s share of the overall vote. It is a standard of neutral treatment of the parties in allocating representational rights. And the burden on voters is measured relative to the baseline created by neutral factors: single-member, winner-take-all elections (the norm in the United States); compliance with federal constitutional requirements and the Voting Rights Act; the actual residential patterns of the electorate; map-drawing practicalities like the need for contiguous and compact districts; and the role of random chance. The test recognizes that map drawing inevitably has some political fallout, while giving courts a means to distinguish and identify those egregious partisan gerrymanders that go above and beyond to invidiously target opposition voters for unequal treatment.

12
The first element, partisan asymmetry, considers whether and to what degree voters’ representational rights have been burdened. The second, lack of responsiveness—also called “durability”—considers whether the ordinary political process is able to provide a remedy. And the third, causation, ensures that only invidious, intentional discrimination is actionable, as distinct from disparate effects that are merely the result of neutral factors or chance. No one factor is dispositive. Rather, each of these three discrete elements—partisan asymmetry, lack of responsiveness, and causation—must be assessed separately and should be deemed a necessary, but not sufficient, condition of a partisan gerrymandering claim.
A. Partisan asymmetry means there is a disparate impact on voters based on political affiliation.
The first element, partisan asymmetry, speaks to whether there has been a clear and severe disparate impact on a political party and its supporters. It asks whether the map treats similarly situated parties equally: whether both parties receive like opportunity to capture a given number of legislative seats if they receive a comparable share of the statewide vote.
For example, imagine that the “Democratic Party receives an average of 55% of the vote totals in a state’s legislative district elections and, because of the way the district lines were drawn, it wins 70% of the legislative seats in that state.” Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry, 6 Election L.J. 2, 8 (2007). This “one piece of

13
evidence alone” says nothing about whether any voters have been treated differently based on their political views. Id. That turns on whether the result would be different were the shoe on the other foot: If the Republican Party would also have received 70% of the seats in an election in which it garnered an average of 55% of the vote, then there is no disparate treatment. Id.
Critically, as the foregoing example indicates, a symmetry standard is not equivalent to a proportionality standard, which this Court has rightly rejected. In a system of proportional representation (used in many European countries), seats are awarded in proportion to overall vote share—i.e., 30% of the statewide votes would garner about 30% of the legislative seats. Proportional Representation, Encyclopedia Britannica (2013 ed.), available at https://tinyurl.com/y6welcph. Supreme Court precedents “clearly foreclose any claim that the Constitution requires proportional representation.” Bandemer, 478 U.S. at 130 (opinion of White, J.).
Nor does mere disproportionality evidence a partisan gerrymander. The political science is clear: Winner-take-all, single-member district elections— elections in which a plurality of the votes wins the district’s seat—do not produce proportionate results, because “in practice they normally give a ‘bonus’ of varying sizes (above proportionality) in seats to the party that wins a majority of the votes across a state.” See Grofman & King, The Future of Partisan Symmetry, supra, at 9; see also, e.g., Samuel S. H. Wang, Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, 16 Election L.J. 367,

14
368, 374 (2016). Thus, it is generally not possible to directly infer asymmetry from disproportionality. See McGann et al., supra, at 65-66 (“[A symmetry standard] does not require proportionality but only that the disproportionality be the same for both parties.”).
Rather than embodying a particular political theory, partisan symmetry requires only that if we were to “switch the names of the parties that received particular vote outcomes, the seat outcomes would also switch.” Grofman & King, The Future of Partisan Symmetry, supra, at 8. “[I]n other words[,]” it requires “that outcomes not depend on party names.” Id. And measures of partisan asymmetry show not only whether a map provides an advantage to one party over another, but also the degree of the advantage.
The scholarly literature has uniformly supported partisan asymmetry as the definition of disparate partisan impact in electoral systems since at least the late 1980s. See id. at 6 & nn.29-30 (canvassing publications on the subject). But as explained below (§ III), until now, the concept has never been squarely presented to this Court.
B. Lack of responsiveness means the ordinary political process cannot provide a remedy.
The second necessary element derived from social science is lack of responsiveness. While asymmetry shows a disparate effect on voters’ representational rights, that alone is not enough to demonstrate an improper gerrymander. If the party out of power can alter its fate by persuading voters to support it in the

15
next election, then there is no need for courts to intervene. Rather, ordinary politics remain responsive to voters’ preferences, and if citizens do not like the policies promulgated by their representatives (including the district maps they enact), they can vote them out of office. See Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312, 319 (2015) (arguing that the Court “entered the metaphorical political thicket in the 1960s on the question of malapportionment” due to “the practical problem … that popular majorities had no political means to correct the offense”); Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 865 (2015) (“So long as certain plans would remain unbalanced over an array of potential outcomes … the case for judicial intervention is unaffected.”).
Moreover, the magnitude of partisan asymmetry and its expected duration can be unrelated. McGann et al., supra, at 65 (“These two qualities [of asymmetry and responsiveness] are independent.”). In principle, even large-scale disparities in treatment of the parties can be fleeting. A constitutional standard for partisan gerrymanders should accordingly require a separate assessment of electoral responsiveness, sometimes called “durability.”
Electoral responsiveness describes whether and how representation changes when voters’ preferences change. Based on historical data—how much voters’ preferences swung in prior elections—experts can identify the full range of realistically possible election outcomes (vote shares) and then determine how many

16
legislative seats, if any, would change hands in response to a comparable change in voters’ choices. The number of competitive districts also provides evidence of the map’s responsiveness.
If a map is not responsive, that means that when voters change their preferences and shift their allegiances from one party to another, their representation remains unlikely to change—showing that the politicians have chosen the voters, and not the other way around. In that circumstance, we can expect partisan asymmetry to endure regardless of the outcome of future elections. Conversely, high responsiveness suggests that the disparate effect on voters may not be long-lasting.
Measuring responsiveness will also detect a socalled “dummymander.” Bernard Grofman & Thomas L. Brunell, The Art of the Dummymander: The Impact of Recent Redistrictings on the Partisan Makeup of Southern House Seats, Redistricting in the New Millennium 183, 184 (Peter Galderisi ed., 2005). As Justice O’Connor noted in Bandemer, some gerrymanders could be “self-limiting,” if map drawers crack voters across multiple districts to create margins of victory so thin that they evaporate in future elections. Bandemer, 478 U.S. at 152 (O’Connor, J., concurring). But dummymanders can occur only when there are a number of competitive districts in a map. And there is empirical evidence that dummymanders are rare. See McGann et al., supra, at 226 (“A second

17
myth we have debunked is that partisan gerrymandering is self-limiting”).5 In any event, assessing responsiveness “allows us to distinguish those cases in which a gerrymandering might have been attempted but was not very well done from those cases in which the partisan bias imposed by gerrymandering is expected to be both substantial and long-lasting.” Grofman & King, The Future of Partisan Symmetry, supra, at 13.
5 There are two clear explanations for why dummymanders are so uncommon: First, the newest, computer-driven redistricting now allows map drawers to make very precise refinements to district lines down to the census-block level. With this sophisticated new technology, map drawers can fashion maps that eliminate meaningful competition for most districts. See McGann et al., supra, at 87 (“[A]rmed with modern geographical information system software and an absence of judicial constraints, it is possible to engineer so much advantage that [a map can] satisfy both … goals” of “seat maximization and incumbent protection.”). Thus, generally speaking, gerrymandered victory margins are no longer so thin that they risk disappearing. See Samuel Issacharoff & Jonathan Nagler, Protected from Politics: Diminishing Margins of Electoral Competition in U.S. Congressional Elections, 68 Ohio St. L.J. 1121, 1122 (2007) (“[D]espite relative overall national parity between the parties in the postWar period, the districts held by each party tend to be more firmly in their control than ever before.”). Second, political polarization of the electorate is increasing. See Pew Research Center, Political Polarization in the American Public, available at https://tinyurl.com/p4scahz (last updated June 12, 2014) (“Republicans and Democrats are more divided along ideological lines—and partisan antipathy is deeper and more extensive— than at any point in the last two decades.”). With fewer swing voters, there is less risk of a victory margin eroding over time.

18
Requiring that plaintiffs demonstrate that a disparate partisan impact will be durable throughout the decade following redistricting—that the map is not responsive to voters—ensures that courts do not intervene in the political process when it is functioning properly. If the map does not persistently obstruct competition, the voters’ remedy lies at the polls, not in the courts.6
C. Causation means that the partisan asymmetry is a result of invidious discrimination, not neutral factors or chance.
Assessing partisan asymmetry and responsiveness is still not enough. There is a consensus among social scientists that to determine whether invidious discrimination is the cause of a disparate burden on voters, it is necessary to rule out other potential causes—to assess whether the partisan effects of a plan are attributable, for example, to neutral principles, voters’ residential patterns, or sheer random
6 Conversely, that responsiveness is low is not, by itself, enough to establish an unconstitutional partisan gerrymander. For example, if both parties agree to apportion single-member districts in proportion to their respective vote shares, that would be “effectively synonymous with requiring low levels of electoral responsiveness.” Grofman & King, The Future of Partisan Symmetry, supra, at 9. Yet there is no need for judicial intervention when legislatures choose to apportion the state proportionately. Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (“[J]udicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength[.]”). As with asymmetry and causation, low responsiveness is a necessary but not sufficient condition for a constitutional claim.

19
chance. See, e.g., Wang, Three Practical Tests, supra, at 374 (“[A] standard for partisan gerrymandering requires a method for determining whether a [claimed disparity] could have arisen as part of normal variation in districting as practiced across the United States.”); McDonald & Best, supra, at 317 (“[I]n order to distinguish unintentional from intentional gerrymanders, a benchmark of what naturally would result from any neutral line drawing has to be established.”); Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 312, 332 (2015) (“[P]artisan asymmetry in the transformation of votes to seats could happen for several reasons that cannot be traced to partisan manipulation ….”). That is, we must compare the map’s disparate effects against a neutral baseline.
As the Court has noted, advantages to one party may occur due to a variety of neutral factors. See, e.g., Vieth, 541 U.S. at 289-90 (plurality); id. at 308-09 (Kennedy, J., concurring). For example, map drawers must comply with the Constitution’s “one-person, onevote” and non-discrimination requirements. They also must comply with the Voting Rights Act. See Charles S. Bullock, III, & Ronald Keith Gaddie, The Triumph of Voting Rights in the South 343 (2009) (discussing partisan alignment of groups protected by Voting Rights Act). And many states’ laws also require map drawers to take into account certain traditional districting criteria. Almost every state, for example, requires districts to be contiguous. Most also require compact districts that do not split political subdivisions across districts. And a handful require the preservation of communities of interest—groups of

20
people with a common interest like race or ethnicity. See, e.g., Justin Levitt, Where Are The Lines Drawn?, All About Redistricting, https://tinyurl.com/aw3qgn5 (last visited Aug. 10, 2017) (collecting current, stateby-state legal requirements for redistricting); see also Bernard Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 77 (1985) (Table 3) (collecting state-by-state requirements for 1980s round of redistricting).
Compliance with these neutral criteria may lead to inadvertent advantages to one party. Similarly, there is some evidence that “political groups that tend to cluster (as is the case with Democratic voters in cities) [c]ould be systematically affected by what might be called a ‘natural’ packing effect,” Vieth, 541 U.S. at 290 (plurality)—although new empirical evidence indicates that this effect has been overstated. McGann et al., supra, at 135 (“[G]eographic and demographic constraints (such as the urban concentration of Democratic voters, the requirement to draw majority-minority districts, and the geographic sorting of voters) cannot account for the level of partisan bias we observe and certainly cannot account for the increase in bias we observe between the 2000 and 2010 districting rounds.”). Partisan asymmetry could also potentially occur by random chance in the map-drawing process.
Partisan asymmetry that is merely a side effect of indisputably legitimate objectives within the redistricting process or that is naturally occurring does not evidence actionable invidious discrimination. Any constitutional test for partisan gerrymandering will thus have to rule out these causes of asymmetry and

21
isolate the degree of asymmetry that is “unrelated to the [legitimate] aims of apportionment,” or to residential patterns or chance. Vieth, 541 U.S. at 313 (Kennedy, J., concurring).
As explained below (§ III), there are now extremely sophisticated and accurate methods of ruling out neutral factors as the source of partisan asymmetry. These tools enable experts to identify the precise quantum of disparate treatment that is “manmade”—the product of deliberate efforts of the party in power to penalize the opposition—as distinct from the level of disparity that may be produced by the effects of neutral districting priorities, voters’ residential patterns, or chance. See, e.g., Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 312 (2015).
***
When partisan asymmetry, lack of responsiveness, and causation are each shown, we are able to establish the existence of discrimination against voters based on their political views and associations that is unlikely to be remedied by the political process. Beyond that, whether courts should nonetheless tolerate some degree of discrimination before they will intercede is a question for judges, not social scientists. The question of “how much partisan dominance is too much,” LULAC, 548 U.S. at 420 (opinion

22
of Kennedy, J.), is fundamentally a legal one for courts to decide.7
III. The Court Has Never Before Confronted Reliable Evidence Of These Three Discrete Elements.
Social science now offers straightforward and manageable ways to prove (or disprove) partisan asymmetry, lack of responsiveness, and causation. But that was not always true. The analytical tools for evaluating each of these three elements have dramatically improved since the Court last considered the justiciability of partisan gerrymandering in LULAC. It is thus unsurprising that this is the first case before this Court in which the plaintiffs offered evidence of each of the three necessary elements. See, e.g., J.S.
7 The available social science tools are now well suited to analyzing the kind of threshold requirements that the Court has adopted in other election-law contexts. For example, the Court could require the plaintiffs to establish that at least one seat now lost to partisan gerrymandering could be gained in a neutral plan. This is feasible because most measures of asymmetry can be translated into a percentage of the seats in a plan affected. Cf. Bartlett v. Strickland, 556 U.S. 1, 26 (2009) (adopting, in Voting Rights Act § 2 case, threshold requirement that plaintiffs demonstrate a “geographically compact group of minority voters [that] could form a majority in a single-member district”). Alternatively, the Court could set a threshold level of partisan asymmetry that triggers judicial scrutiny, using historical data to identify the amount of asymmetry that is atypical or egregious. Cf. Brown v. Thomson, 462 U.S. 835, 842 (1983) (“Our [one-person-one-vote] decisions have established … that a [state legislative] apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations [that are not actionable.]”).

23
App. 146a-66a, 173a-74a (asymmetry and responsiveness, i.e., durability), 180a-81a, 191a-196a, 197a n.350, 200a-12a (causation, i.e., absence of justification).
A. Bandemer, Vieth, and LULAC did not consider evidence of partisan asymmetry, lack of responsiveness, and causation.
In the course of rejecting the plaintiffs’ claims in Bandemer, Vieth, and LULAC, the Court hinted that partisan asymmetry, lack of responsiveness, and causation are important to a justiciable partisan gerrymandering claim. See LULAC, 548 U.S. at 418 (holding that “unconstitutional acts of partisan gerrymandering must do what appellants’ sole-motivation theory disavows: show a burden, as measured by a reliable standard, on the complainants’ representational rights”); Vieth, 541 U.S. at 289-90 (plurality) (holding that plaintiffs failed to establish a standard under which they were entitled to a majority of the seats, and that they failed to rule out “natural” causes of packing); Bandemer, 478 U.S. at 129-130, 140 (holding that plaintiffs’ claims failed because proportionality is not required and because “more than a showing of possibly transitory results” is required). But in none of those cases did the plaintiffs (or the Justices) propose a test based on these elements, and the plaintiffs never provided evidence of these elements to the Court. Indeed, the first and only time the Court addressed partisan asymmetry was in LULAC, where only an amicus brief (which Professor Grofman joined), and not the parties, discussed the concept.

24
Contrary to the Whitford defendants’ contention that the evidence in this case is equivalent to that rejected in Bandemer (Brief for Appellants 39), the primary evidence in Bandemer was that a single election had yielded slightly disproportionate results. 478 U.S. at 134 (plurality). The Bandemer plaintiffs offered no evidence of partisan asymmetry, lack of responsiveness, or causation. Instead of partisan asymmetry, they offered proportionality. But as Professor Grofman—Indiana’s expert witness in that case—explained, it is “totally fallacious … that a discrepancy between vote share and seat share of more than a few percentage points is proof of intentional gerrymandering.” Grofman, Criteria for Districting, supra, at 120. Nor did the plaintiffs there offer any evidence of lack of responsiveness, leaving unrebutted the State’s contention that if the plaintiffs won even an “additional few percentage points …, they would have obtained a majority … in both houses.” Bandemer, 478 U.S. at 135 (plurality). Finally, plaintiffs failed to prove causation because their test left unaddressed discrepancies in treatment caused merely by “natural advantages.” Grofman, Criteria for Districting, supra, at 120.
In Vieth, the plaintiffs took a somewhat different tack. They argued for a two-pronged test: (1) a predominant intent to achieve partisan advantage, shown through the subordination of neutral and legitimate criteria (i.e., intent); and (2) a “totality of the circumstances” determination that the map could “thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats,” (i.e., effect). 541 U.S. at 284-87 (plurality).

25
The effects prong of this test focused on the wrong criteria: It claimed that a party that won the majority of votes was entitled to a majority of seats, without establishing any differential treatment of voters based on their political views and associations. Specifically, because the case was decided on a motion to dismiss, and because no election had taken place under the challenged plan, the plaintiffs’ claim of adverse effects rested solely on an allegation that, in the future, they would be deprived of a majority of Pennsylvania’s congressional seats, despite achieving a majority of the statewide vote. Id. at 272-73, 287. The plurality noted that this claim reduced to a claim of proportional representation, similar to the proportionality test urged in Bandemer. Id. at 288. And of course, there was no evidence of partisan asymmetry, responsiveness, or causation.
In LULAC, the district court heard limited expert evidence regarding partisan asymmetry and responsiveness, including testimony from Professor Gaddie—namely, a measure of “partisan bias” that examined how many seats each party would win if, hypothetically, each obtained 50% of the statewide vote. 548 U.S. at 466-68 (Stevens, J., concurring in part and dissenting in part). See also J.A., League of United Latin American Citizens v. Perry (LULAC), Nos. 05-204, 05-254, 05-276, 05-439 2006 WL 64437, at *36-37 (U.S. Jan. 10. 2006) (report of Professor John R. Alford, expert for plaintiffs); id. at *216 (report of Professor Gaddie, expert for the State).
But, plaintiffs abandoned this evidence by the time they got to this Court. Instead, their theory of

26
the case was that the sole motive for the Texas legislature’s decision to engage in mid-decennial redistricting was to reap partisan advantage. Id. at 416-17 (opinion of Kennedy, J.). In other words, their theory depended only on intent. In fact, they argued that “courts need not inquire about, nor parties prove, the discriminatory effects of partisan gerrymandering.” Id. at 417 (emphasis added). Professor Grofman raised the concept of partisan asymmetry as relevant to discriminatory effect in his amicus brief, but the parties did not squarely present the issue. See Amici Br. of Prof. Gary King et al., League of United Latin American Citizens v. Perry (LULAC), Nos. 5-204, 5254, 5-276, 5-439, 2006 WL 53994 (U.S., Jan. 10, 2006).
B. The analytical tools for evaluating these three elements have dramatically improved since Bandemer, Vieth, and LULAC.
The analytical tools for evaluating partisan asymmetry, lack of responsiveness, and causation have also dramatically improved since Bandemer, Vieth, and LULAC.
In LULAC, Justice Kennedy expressed concern that the measure of “partisan bias” that examined how many seats each party would win if it obtained 50% of the statewide vote relied on “a hypothetical state of affairs.” Id. at 420 (opinion of Kennedy, J.). The test of partisan asymmetry that we propose does not involve predictions about who will win future elections. Instead, if the “Democratic Party receives an average of 55% of the vote totals in a state’s legislative

27
district elections and, because of the way the district lines were drawn, it wins 70% of the legislative seats in that state,” our test asks whether the result would be different were the shoe on the other foot: If the Republican Party would also have received about 70% of the seats in an election in which it garnered an average of 55% of the vote. Supra, at 12-13. In any event, in cases like this one where multiple elections have occurred under the challenged plan, the accuracy of the seats-votes graph used to calculate the magnitude of any partisan asymmetry can be directly confirmed.
Moreover, new measures of asymmetry developed after LULAC rely on no “hypothetical” counterfactual at all. For example, the average-median difference is “a simple measure of asymmetry or skewness … [with] well-defined mathematical properties.” Wang, Three Practical Tests, supra, at 372. The average-median difference compares each party’s actual vote share in its median district to its average actual vote share across all districts. If the party’s median vote share is significantly lower than its average vote share, partisan asymmetry is at work. This is because “[b]y packing opposing voters into a small number of districts, the gerrymandering party holds down the targeted party’s vote shares in many districts, which depresses the target party’s median vote share, even while its average (mean) vote share is unchanged.” Amicus Br. of Samuel S. Wang, Harris v. Ariz. Indep. Redistricting Comm’n, No. 14-232, 2015 WL 6774017, at *4 (U.S. Nov. 2, 2015). The average-median difference is also highly manageable for courts: “[i]t focuses on two observable numerical facts”—the mean and the median—“and subtracts one from the other.” McDonald & Best, supra, at 316. This is the first case

28
in which the plaintiffs have presented evidence of the average-median difference. See Mot. to Affirm at 12 n.4, 21 n.8.
The plaintiffs here have also made use of another, easy-to-calculate measure that analyzes actual election results—the efficiency gap. See J.S. App. 159a66a. The efficiency gap is intended to address partisan asymmetry, in that it compares how many votes each party respectively “wasted” in a given election— the votes each party received that did not contribute to it winning an additional seat. Stephanopoulos & McGhee, supra, at 849-50.8 Like the average-median difference, the efficiency gap is a social science tool never before presented to the Court.
In LULAC, Justice Kennedy also explained that “asymmetry alone is not a reliable measure.” 548 U.S. at 420 (opinion of Kennedy, J.) (emphasis added). As explained in § II, we agree. Although Professor Grofman’s amicus brief in LULAC focused on the relevance of asymmetry to partisan gerrymandering
8 In this case, the plaintiffs also used the efficiency gap as a measure of responsiveness. They presented evidence regarding Act 43’s efficiency gap in the elections following adoption of the map. J.S. App. 50a. They also presented a historical analysis suggesting that when a map exhibits an efficiency gap of a sufficiently large magnitude in the first election following its adoption (7% or more), the map is likely to continue to exhibit an efficiency gap in favor of that party for the rest of the decade. Id. 48a-50a. And they presented evidence of how Act 43’s efficiency gap would change if citizens shifted their votes in accordance with historical patterns of vote shifts in Wisconsin. Id. 47a-48a.

29
claims, we believe a justiciable standard also requires proof of lack of responsiveness and causation.
As with asymmetry, given the evidence available to the district court, there is no need here to rely on any kind of predictions to assess responsiveness. Responsiveness can be observed directly based on election outcomes under the challenged map. In contrast, in each of the Court’s prior partisan gerrymandering cases, only one election or no election had occurred under the challenged plan. See LULAC, 548 U.S. at 413 (opinion of Kennedy, J.) (one); Vieth, 541 U.S. at 272 (plurality) (none); Bandemer, 478 U.S. at 115 (plurality) (one). We continue to believe that experts can reliably assess the responsiveness and asymmetry of a newly enacted map by projecting the results of recent past statewide races onto the new district lines, especially in light of current extraordinarily high levels of partisan polarization. See supra note 5. But, when multiple elections under the challenged map have already occurred—in the instant case, there have been three—there is no need for such projections. Courts and expert witnesses can analyze actual election results for any disparate and durable effects on disfavored voters.
As to causation—or the absence of any neutral justification—the only evidence of causation in LULAC involved comparing the challenged plan to the prior map. There was no evidence isolating the degree of asymmetry that occurred from neutral redistricting criteria or chance. LULAC, 548 U.S. at 451-52 (Stevens, J., concurring in part and dissenting in part); see also J.A., LULAC, 2006 WL 64437, at *36-39 (report of Professor John R. Alford, expert for plaintiffs);

30
id. at *224-25 (testimony of Professor Gaddie, expert for the State).
Now, not only are traditional tests of statistical significance available for partisan asymmetry, vastly improved computing power permits experts to create thousands (or even many millions) of computer-generated alternative maps. These can then be screened to consider only those plans that satisfy all standard districting criteria to at least the same extent as the challenged plan, establishing the neutral benchmark against which to measure the magnitude of “manmade” asymmetry in the treatment of different blocs of voters. Using these alternative maps, we can say with a high degree of statistical confidence whether a given quantum of asymmetry is explainable by something other than invidious intent.
For example, some of the most advanced work in the field is that of Jowei Chen and Jonathan Rodden. They generate thousands of maps with simulated district lines that can control for “all legal criteria and requirements in redistricting”—maps that are at least as good as the challenged plan on all neutral criteria. Chen & Rodden, supra, at 335. By “measuring the partisan[] [asymmetry] of these [computer-generated] plans and contrast[ing] them with that of the plan in question,” one can determine, with a high degree of statistical confidence, the extent to which the challenged plan exhibits asymmetry over and above the neutral baseline. Chen & Rodden, supra, at 338. Moreover, “[a]ny natural geographic advantage for one party or another will be expressed in the partisanship of the simulated plans.” Id. Other scholars, such as Professor Wendy Tam Cho, have done very

31
similar computations, involving an even larger number of alternative maps. Wendy Tam Cho et al., A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals, 59 William & Mary L. Rev. (forthcoming 2017) (generating millions of alternative maps); see also Jonathan Mattingly et al., Quantifying Gerrymandering, https://tinyurl.com/yc4cvxkg (last visited Aug. 10, 2017) (generating 150,000 to 200,000 alternative maps for various states).
This mechanism of isolating causation was not feasible at the time of LULAC. Now, with dramatic improvements in computer processing speed, memory, and storage, we can produce thousands of maps in minutes. Notably, Professor Chen applied his methodology to Wisconsin’s Act 43 and concluded that the “levels of natural electoral bias pale in comparison to the much more extreme electoral bias exhibited by the Act 43 plan.” Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, Election L.J. (forthcoming 2017) (manuscript at 3), https://tinyurl.com/y7ohowmy.
***
State-of-the-art analytical tools now capture all the relevant information for detecting and precisely measuring the disparate effect of partisan gerrymanders. In particular, the various methods of measuring asymmetry are fundamentally complementary. Some are more complex in their calculations than others. But they all measure the same thing: the magnitude of the disparate burden (if any) that a challenged map

32
imposes on a political party and its supporters. And they all converge in conclusions in the face of an egregious partisan gerrymander. In the rare circumstance that one method is unsuitable to a particular context, another can be used instead.
While the methodology will continue to improve, future advances are likely to be incremental only— the equivalent of adding a further decimal point to an already precise figure—and will not materially alter the calculus. Moreover, experts can clearly and consistently apply existing statistical tools to assess whether each element—partisan asymmetry, lack of responsiveness, and causation—is met. Once the Court adopts a legal standard for justiciable partisan gerrymandering claims, it will be relatively straightforward for competent experts to provide their assessments of whether that standard is met in a given case.
CONCLUSION
For the foregoing reasons, the Court should hold that partisan gerrymander claims are justiciable, and it should adopt a standard that makes partisan asymmetry, lack of responsiveness, and causation necessary elements of such a claim.

33 Respectfully submitted,

Thomas M. Bondy Avi Daniel Rosenblit ORRICK, HERRINGTON &
SUTCLIFFE LLP 1152 15th Street Washington, DC 20005
August 10, 2017

E. Joshua Rosenkranz Counsel of Record
Rachel Wainer Apter Hannah Garden-
Monheit ORRICK, HERRINGTON &
SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019 (212) 506-5000 jrosenkranz@orrick.com

 
 No. 16-1161 IN THE

BEVERLY R. GILL ET AL.,
Appellants, v.
WILLIAM WHITFORD ET AL., Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF HEATHER K. GERKEN, JONATHAN N. KATZ, GARY KING, LARRY J. SABATO, AND
SAMUEL S.-H. WANG AS AMICI CURIAE IN SUPPORT OF APPELLEES

Kevin K. Russell

Heather K. Gerken

GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.

Counsel of Record 127 Wall Street New Haven, CT 06511 (203) 432-1660

Suite 850

heather.k.gerken@

Washington, DC 20814 yale.edu

TABLE OF CONTENTS
INTEREST OF AMICI CURIAE................................. 1
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ................................................................ 5
I. The Court’s Long-Standing Practice Is To Identify A Workable Principle That Lends Itself To A Manageable Test While Allowing The Lower Courts To Refine That Test Over Time...... ................................................................. 6
A. The Court Has Repeatedly Followed This Cautious Practice In Elections Cases. ........... 7
B. This Circumspect Approach Is Not Limited To Elections Cases.......................... 10
C. Now Is The Time For The Court To Act. ..... 12
II. Partisan Symmetry Is A Workable Standard With Ancient Roots And Overwhelming Support From Social Scientists. ......................... 13
A. Partisan Symmetry Is A Deeply Intuitive Standard With Ancient Roots. ..................... 14
B. Social Scientists Resoundingly Support A Partisan Symmetry Standard. ..................... 15
III. Partisan Symmetry Lends Itself To A Manageable Test With Many Doctrinal Virtues.. ............................................................... 17
A. Partisan Symmetry Relies On The Most Basic Statistical Measures And Is Thus Transparent And Easy To Calculate Without Undue Reliance On Experts. ......... 18

ii
B. Partisan-Symmetry Tests Differ Fundamentally From A Proportional Representation Standard. ............................ 21
C. Partisan Symmetry Tests Can Distinguish Between Partisan Manipulation And The Effects Of Traditional Districting Principles. ..................................................... 22
D. Because Symmetry Tests Do Not Rely On Subjective Judicial Judgments, They Generate Highly Predictable Measures That Do Not Displace Appropriate Districting Criteria....................................... 23
E. Symmetry Tests Measure Opportunity, Not Outcome, And Are Thus Tailored To The Constitutional Harm At Issue. ............. 24
F. Partisan Symmetry Tests Are Flexible And Can Be Deployed Simultaneously To Ensure That Judges Can Identify Extreme Outliers And Be Confident In The Robustness Of Their Findings. .................... 25
IV. Wisconsin’s Legislative Districts Would Fail Under Virtually Any Partisan-Symmetry Test The Court Might Choose. .................................... 26
CONCLUSION .......................................................... 28

iii
TABLE OF AUTHORITIES
Cases
Avery v. Midland Cty., 390 U.S. 474 (1968) .................................................. 8
Baker v. Carr, 369 U.S. 186 (1962) .............................................. 6, 7
Bartlett v. Strickland, 556 U.S. 1 (2009) ...................................................... 9
Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam).................... 14, 19
Brown v. Bd. of Educ., 347 U.S. 483 (1954) ............................................ 7, 10
Burdick v. Takushi, 504 U.S. 428 (1992) .................................................. 7
Bush v. Vera, 517 U.S. 952 (1996) .......................................... 10, 23
California Democratic Party v. Jones, 530 U.S. 567 (2000) .................................................. 7
Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988) .................................. 9
Castaneda v. Partida, 430 U.S. 482 (1977) ................................................ 19
Citizens United v. FEC, 558 U.S. 310 (2010) .................................................. 6
Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017) (mem)............................................ 10
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) .................................................. 7
Davis v. Bandemer, 478 U.S. 109 (1986). ............................................... 23

iv
FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013) ............................................ 11
General Elec. Co. v. Joiner, 522 U.S. 136 (1997) ................................................ 19
Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011) ................................................ 11
Green v. Cty. Sch. Bd., 391 U.S. 430 (1968) ................................................ 10
Grutter v. Bollinger, 539 U.S. 306 (2003) .................................................. 7
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .................................................. 11
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................................ 15
Johnson v. De Grandy, 512 U.S. 997 (1994) .................................................. 9
Karcher v. Daggett, 462 U.S. 725 (1983) ............................................ 8, 21
Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973) ................................................ 10
Kirkpatrick v. Preisler, 394 U.S. 526 (1969) .................................................. 8
League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006) ........................................ passim
League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) .................................... 9
Loving v. Virginia, 388 U.S. 1 (1967) ...................................................... 7

v
Mahan v. Howell, 410 U.S. 315 (1973) .................................................. 8
Maslenjak v. United States, 137 S. Ct. 1918 (2017) ........................................ 5, 12
Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27 (2011) .................................................. 19
McConnell v. FEC, 540 U.S. 93 (2003) .............................................. 6, 12
Miller v. Johnson, 515 U.S. 900 (1995) .......................................... 10, 16
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .............................................. 7
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ................................................ 11
Reynolds v. Sims, 377 U.S. 533 (1964) .................................................. 8
Shaw v. Reno, 509 U.S. 630 (1993) .............................................. 6, 9
State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ................................................ 11
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) .................................................... 10
Texas v. Johnson, 491 U.S. 397 (1989) .................................................. 7
Thornburg v. Gingles, 478 U.S. 30 (1986) .............................................. 9, 24
United States v. Lovasco, 431 U.S. 783 (1977) ................................................ 11
Utah v. Evans, 536 U.S. 452 (2002) .................................................. 6

vi
Vieth v. Jubelirer, 541 U.S. 267 (2004) ............................... 5, 20, 21, 25
Wesberry v. Sanders, 376 U.S. 1 (1964) ...................................................... 8
White v. Weiser, 412 U.S. 783 (1973) ............................................ 8, 23
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016)......... 5, 13, 25
Wilson v. Arkansas, 514 U.S. 927 (1995) ................................................ 11
Other Authorities
Michael Altman & Michael P. McDonald, BARD: Better Automated Redistricting, 42 JOURNAL OF STATISTICAL SOFTWARE 1 (2011) ...................................................................... 22
Americans Across Party Lines Oppose Common Gerrymandering Practices, HARRIS INTERACTIVE (Nov. 7, 2013), http://www.theharrispoll.com/politics/America ns_Across_Party_Lines_Oppose_Common_Ger rymandering_Practices.html ................................... 7
John Arbuthnott, An Argument for Divine Providence, Taken from the Constant Regularity Observ'd in the Births of Both Sexes, 27 PHIL. TRANSACTIONS ROYAL SOC’Y 186 (1710) ...................................................................... 19
Georges Louis Leclerc Buffon, Histoire Naturelle, Générale et Particulière (Suppl èment, Tome Quatrième (1777))............................ 22

vii
Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 ELECTION L.J. 331 (2015).................................. 22
CINDERELLA ACROSS CULTURES (Martine Hennard Dutheil de la Rochère et al. eds., 2016) ....................................................................... 15
Benjamin Fifield et al., A New Automated Redistricting Simulator Using Markov Chain Monetecarlo, available at http://imai.princeton.edu/research/files/redist. pdf ........................................................................... 22
RONALD A. FISHER, STATISTICAL METHODS FOR RESEARCH WORKERS (11th ed. 1950) ..................... 19
Joshua Fougere, Stephen Ansolabehere & Nathaniel Persily, Partisanship, Public Opinion, and Redistricting, 9 ELECTION L.J. 325 (2010) ...................................... 7
Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. OF POL. SCIENCE 514 (1994) .................... 14
Andrew Gelman & Gary King, Estimating the Electoral Consequences of Legislative Redistricting, 85 J. AM. STAT. ASSOC. 274 (1990)........ 12, 18, 20, 24
Andrew Gelman, Gary King, & Andrew Thomas, JudgeIt II: A Program for Evaluating Electoral Systems and Redistricting Plans (2010), available at http://j.mp/2ovSNfh ............... 23
Genesis 13:8-9 ............................................................ 15

viii
Heather K. Gerken, Second Order Diversity, 118 HARV. L. REV. 1099 (2005) ............................... 15
W.S. GILBERT & ARTHUR SULLIVAN, H.M.S. PINAFORE (1878) ..................................................... 15
Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 ELECTION L.J. 2 (2007) .................................. 16, 20
Intervening Defendants’ Brief in Response to the Court’s April 24, 2002 Case Management Order at 3-5, O’Lear v. Miller, 222 F. Supp. 2d 850 (E.D. Mich. 2002) (No. 2:01-cv-72584JAC-PJK)................................................................ 17
Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 AM. POL. SCI. REV. 1251 (1987) ......................... 15
CARL KLARNER ET AL, STATE LEGISLATIVE ELECTION RETURNS DATA, 1967-2010 (Harvard Dataverse V1, hdl:1902.1/20401, UNF:5:q/n5C9RQGfjy6AjbLG6JWQ==, 2013).......26
Richard Lowry, CONCEPTS AND APPLICATIONS OF INFERENTIAL STATISTICS, http://vassarstats.net/textbook/ch11pt1.html ....... 19
Matthew 7:12.............................................................. 15
Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 ELECTION L.J. 312 (2015) ............................ 16, 20

ix
Anthony J. McGann et al., A Discernable and Manageable Standard for Partisan Gerrymandering, 14 ELECTION L.J. 295 (2015) .................................. 16
John F. Nagle, Measures of Partisan Bias for Legislating Fair Elections, 14 ELECTION L.J. 346 (2015) ............................ 16, 20
Karl Pearson, Contributions to the Mathematical Theory of Evolution, II: Skew Variation in Homogeneous Material, PHIL. TRANSACTIONS ROYAL SOC’Y (1895) .............. 21
Petitioner’s Opening Brief, Maestas v. Hall, 274 P.3d 66 (N.M. 2012) (No. 33,387), 2012 WL 3236221 .................................................................. 17
Plaintiffs' Initial Closing Brief, Romo v. Detzner, No. 2012-CA-000412, 2014 WL 3797315 (Fla. Cir. Ct. July 10, 2014) (Nos. 2012-CA-000412, 2012-CA-00490), 2014 WL 4254379 ...................... 17
PRINCETON GERRYMANDERING PROJECT, gerrymander.princeton.edu ................................... 23
JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999) ....................................................................... 15
RICHARD RHODES, THE MAKING OF THE ATOMIC BOMB (1986)............................................................ 22
WILLIAM SHAKESPEARE, A MID-SUMMER NIGHT’S DREAM ..................................................................... 15
WILLIAM SHAKESPEARE, TWELFTH NIGHT.................. 15
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831 (2015) ..................... 12, 16, 20

x
Student, The Probable Error of a Mean, 6 BIOMETRIKA 1 (1908)...................................... 19, 20
Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 ELECTION L.J. 351 (2016) .................................. 22
MARK TWAIN, THE PRINCE AND THE PAUPER (1881) ...................................................................... 15
G. UDNY YULE & MAURICE G. KENDALL, AN INTRODUCTION TO THE THEORY OF STATISTICS (3d ed. 1950) ........................................................... 19
Sam Wang, Let Math Save Our Democracy, N.Y. TIMES, Dec. 5, 2015 ................................................ 27
Samuel S.-H. Wang, Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, 15 ELECTION L.J. 367 (2016) ...................... 25, 26, 27
Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 STAN. L. REV. 1263 (2016) ......................... passim

INTEREST OF AMICI CURIAE1
Amici Heather K. Gerken, Jonathan N. Katz, Gary King, and Samuel S.-H. Wang are experts in the study of elections.2 They seek to share their knowledge with the Court about the partisan symmetry standard.
Amicus Heather K. Gerken is the Dean and the Sol & Lillian Goldman Professor of Law at Yale Law School. One of the country’s leading experts in the fields of election and constitutional law, her scholarly work includes articles on race, politics, and redistricting. Her work has been the subject of several symposia and featured in the Atlantic, the Boston Globe, and the New York Times, among other journals. Her 2009 book, The Democracy Index: Why Our Election System is Failing and How To Fix It, led the Pew Charitable Trust to create an Election Performance Index. Dean Gerken is a member of the American Academy of Arts and Sciences.
Amicus Jonathan N. Katz is the Kay Sugahara Professor of Social Sciences and Statistics at the California Institute of Technology. He is an elected fellow of the American Academy of Arts and Sciences and the Society for Political Methodology as well as a former fellow of the Center for Advanced Study in the
1 All parties have consented in writing to the filing of this brief through letters on file with the Clerk. No counsel for a party authored this brief in whole or in part, and no person other than amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 Title and institutional affiliation are provided for identification purposes only. The views expressed herein should not be regarded as those of the institution.

2
Behavioral Sciences. He has written numerous articles published in leading journals and is currently the co-editor of Political Analysis, the journal of the Society for Political Methodology. Professor Katz has done extensive research on American elections and on statistical methods for analyzing political science data. A member of the Caltech/MIT Voting Technology Project, he has testified or consulted in numerous elections cases for both Democratic and Republican clients.
Amicus Gary King is the Albert J. Weatherhead III University Professor at Harvard University and Director of the Institute for Quantitative Social Science. King develops and applies empirical methods in many areas of social science research, focusing on innovations that span the range from statistical theory to practical application. King is an elected Fellow in eight honorary societies and has won more than forty "best of" awards for his work. King was elected President of the Society for Political Methodology (1997-1999) and Vice President of the American Political Science Association (2003-2004). He has been a member of the Senior Editorial Board at Science (2015-2016), Visiting Fellow at Oxford (1994), and Senior Science Adviser to the World Health Organization (1998-2003). His more than 150 journal articles, 20 open source software packages, and eight books span most aspects of political methodology, many fields of political science, and several other scholarly disciplines. Professor King’s work on legislative redistricting has been used in most American states by legislators, judges, lawyers, political parties, private parties, and the United States Supreme Court.

3
Amicus Larry J. Sabato is the director of the University of Virginia Center for Politics and the Robert Kent Gooch Professor of Politics. He is a leading expert on American politics. His weekly enewsletter, "Sabato's Crystal Ball," is a widely read publication about elections. Professor Sabato has written or edited twenty-five books on politics. In his forty years at the University of Virginia, Sabato has taught 20,000 students and has received the University's highest honor, the Thomas Jefferson Award. He has also won three Emmys for historical documentaries produced for public television.
Amicus Samuel S.-H. Wang is a professor of neuroscience and molecular biology at Princeton University, and faculty associate in the Program in Law and Public Affairs. He is well known for developing statistical methods to analyze United States elections, and he is the author of several works on statistical methods to detect partisan bias in redistricting. His election work has won awards from the Washington Post and Common Cause, and has been featured in the New York Times, the Wall Street Journal, the Los Angeles Times, and other publications. Professor Wang has also received a National Science Foundation Young Investigator Award and a McKnight Technological Innovations in Neuroscience Award for his work investigating the brain. In 2015, Governor Chris Christie appointed Professor Wang to the New Jersey Governor's Council for Medical Research and Treatment of Autism.

4
SUMMARY OF ARGUMENT
Plaintiffs ask this Court to do what it has done many times before. For generations, it has resolved cases involving elections and cases on which elections ride. It has adjudicated controversies that divide the American people and those, like this one, where Americans are largely in agreement. In doing so, the Court has sensibly adhered to its long-standing and circumspect approach: it has announced a workable principle, one that lends itself to a manageable test, while allowing the lower courts to work out the precise contours of that test with time and experience.
Partisan symmetry, the principle put forward by the plaintiffs, is just such a workable principle. The standard is highly intuitive, deeply rooted in history, and accepted by virtually all social scientists. Tests for partisan symmetry are reliable, transparent, and easy to calculate without undue reliance on experts or unnecessary judicial intrusion on state redistricting judgments. Under any of these tests, Wisconsin’s districts cannot withstand constitutional scrutiny.

5
ARGUMENT
The path for resolving this case is clear because the Court has trod it so many times before. For generations, the Court has resolved controversies involving elections and those on which elections ride. It has decided cases that affect every part of the democratic process. It has adjudicated questions that divide us and those where, as here, the American people are largely in agreement.
In most of these cases, the Court has followed the same circumspect and sensible route. It has articulated a constitutional principle and identified a “workable standard,” Vieth v. Jubelirer, 541 U.S. 267, 311 (2004) (Kennedy, J., concurring in the judgment), for vindicating that principle while leaving the precise test to the “crucible of adversarial testing,” Maslenjak v. United States, 137 S. Ct. 1918, 1931 (2017) (Gorsuch, J., concurring).
Here, the constitutional principle animating plaintiffs’ complaint is easy to grasp. In order to protect its own control of the legislature, one political party has hijacked the power of the state in order to “ma[k]e fruitless,” League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 440 (2006), another party’s efforts to mobilize and put its members’ ideas into action. As a result, plaintiffs allege that Wisconsin’s legislative maps make it harder for one party to control the state legislature than the other. Whitford v. Gill, 218 F. Supp. 3d 837, 854-55 (W.D. Wis. 2016).
A workable standard for vindicating this principle is readily available: partisan symmetry. Partisan symmetry has its roots in the simplest, most intuitive

6
test for detecting discrimination: what would happen if the tables were turned? Social scientists have overwhelmingly endorsed the partisan-symmetry standard, and for decades courts have deployed similar tests in other areas of the law.
While this Court need not identify the precise test for measuring partisan symmetry, the Court must assure itself that the standard lends itself to a manageable test. Measures of partisan symmetry must be transparent, difficult to manipulate, adaptable to context, and assessed without undue reliance on experts. Partisan-symmetry tests can easily meet those conditions.
Under any partisan-symmetry test, Wisconsin’s legislative districts are grossly asymmetrical. Measured against other states, Wisconsin’s map is extreme. As a result, the Court can affirm the decision of the district court without privileging a specific test.
I. The Court’s Long-Standing Practice Is To Identify A Workable Principle That Lends Itself To A Manageable Test While Allowing The Lower Courts To Refine That Test Over Time.
The Court has long adjudicated cases involving elections. It has entertained constitutional claims governing virtually every aspect of the election system, including apportionment, Utah v. Evans, 536 U.S. 452 (2002); districting, LULAC v. Perry, 548 U.S. 399 (2006); Shaw v. Reno, 509 U.S. 630 (1993); Baker v. Carr, 369 U.S. 186 (1962); campaign finance, Citizens United v. FEC, 558 U.S. 310 (2010); McConnell v. FEC, 540 U.S. 93 (2003); election administration, Crawford v. Marion Cty. Election Bd.,

7
553 U.S. 181 (2008); Burdick v. Takushi, 504 U.S. 428 (1992); and party regulation, California Democratic Party v. Jones, 530 U.S. 567 (2000). Nor has the Court shirked its constitutional duties in cases that – unlike this one3 – divide the American people. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Grutter v. Bollinger, 539 U.S. 306 (2003); Texas v. Johnson, 491 U.S. 397 (1989); Loving v. Virginia, 388 U.S. 1 (1967); Brown v. Bd. of Educ., 347 U.S. 483 (1954).
A. The Court Has Repeatedly Followed This Cautious Practice In Elections Cases.
In most elections cases, the Court has wisely followed the same cautious course. It has articulated a workable principle that lends itself to a manageable test while allowing the lower courts to adapt and refine that test over time. That same approach has also informed its work in other areas, including some of the most contentious cases in constitutional law.
This Court has taken this circumspect approach repeatedly in the context of districting. In the wake of its pronouncements in Baker, the Court identified the
3 Seventy-one percent of Americans believe that those who stand to benefit from redistricting should not have a say in how they are redrawn. Americans Across Party Lines Oppose Common Gerrymandering Practices, HARRIS INTERACTIVE (Nov. 7, 2013), http://www.theharrispoll.com/politics/Americans_Across_Party_ Lines_Oppose_Common_Gerrymandering_Practices.html. People across the political spectrum, including 74% of Republicans, 73% of Democrats, and 71% of independent voters, subscribe to this view. Id.; see also Joshua Fougere, Stephen Ansolabehere & Nathaniel Persily, Partisanship, Public Opinion, and Redistricting, 9 ELECTION L.J. 325, 325 (2010).

8
core principle undergirding the constitutional claim in broad, general terms. The Constitution, the Court wrote in Wesberry v. Sanders, “mak[es] equal representation for equal numbers of people the fundamental goal for the House of Representatives.” 376 U.S. 1, 18 (1964). So, too, in Reynolds v. Sims, this Court held that “[f]ull and effective participation by all citizens in state government requires . . . that each citizen have an equally effective voice in the election of members of his state legislature.” 377 U.S. 533, 565 (1964).
In neither of these early cases did the Court identify the precise test for assessing violations of the one person, one vote principle. See id. at 569, 579; Wesberry, 376 U.S. at 18. Instead, it allowed the lower courts to refine and adapt this principle to fact patterns raised by subsequent litigation before settling on an enduring test. As the Court predicted in Reynolds, “[l]ower courts can and assuredly will work out more concrete and specific standards for evaluating state legislative apportionment schemes in the context of actual litigation.” 377 U.S. at 578. Its view that “[d]eveloping a body of doctrine on a case-bycase basis . . . provide[s] the most satisfactory means of arriving at detailed constitutional requirements,” id., in redistricting was amply borne out by subsequent decisions. See, e.g., Karcher v. Daggett, 462 U.S. 725 (1983); White v. Weiser, 412 U.S. 783 (1973); Mahan v. Howell, 410 U.S. 315 (1973); Wells v. Rockefeller, 394 U.S. 542 (1969); Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Avery v. Midland Cty., 390 U.S. 474 (1968).
The Court has proceeded in a similarly careful fashion in the context of the Voting Rights Act,

9
crafting doctrines to govern the often-fraught intersection of politics and race. In Thornburg v. Gingles, this Court declined to establish a “simple doctrinal test for the existence of legally significant racial bloc voting,” 478 U.S. 30, 58 (1986), choosing instead to offer “general principles [to] provide courts with substantial guidance in determining” whether unlawful vote dilution has occurred. Id. at 58-59. And in Johnson v. De Grandy, the Court deliberately developed a “substantial proportionality” standard without fashioning a mechanistic test. 512 U.S. 997, 1016 (1994); see also id. at 1020-21 (“No single statistic provides courts with a shortcut to determine whether a set of single-member districts unlawfully dilutes minority voting strength.”). Over time, with the assistance of the lower courts4 and the benefit of experience, the Court has refined these tests to protect equal minority participation without “unnecessarily infus[ing] race into virtually every redistricting.” LULAC, 548 U.S. at 405; see also Bartlett v. Strickland, 556 U.S. 1, 14 (2009).
The Court’s racial gerrymandering jurisprudence has followed the same path. In Shaw, the Court announced that “race-based districting by our state legislatures demands close judicial scrutiny.” 509 U.S. at 657. Over time, with the benefit of wisdom gleaned from experience, the Court delineated the contours of
4 See, e.g., League of United Latin Am. Citizens v. Clements, 999 F.2d 831, 857 (5th Cir. 1993) (explaining that Section 2 prohibits racial vote dilution but not partisan political defeat); Campos v. City of Baytown, 840 F.2d 1240, 1248 (5th Cir. 1988) (upholding factual determination that Black and Hispanic voters together constituted a cohesive majority coalition).

10
that principle. It made clear, for example, that a bizarre shape was not a prerequisite for a constitutional claim, Miller v. Johnson, 515 U.S. 900, 912-13 (1995), that race could not be used as a proxy for partisanship, Bush v. Vera, 517 U.S. 952, 968-69 (1996), and that the deliberate packing of minority voters in a district violates the Constitution, Covington v. North Carolina, 316 F.R.D. 117, 130 (M.D.N.C. 2016), aff’d, 137 S. Ct. 2211 (2017) (mem).
B. This Circumspect Approach Is Not Limited To Elections Cases.
This circumspect approach is hardly limited to election law. In Brown, the Court’s approach was surgical: it announced a critical principle while avoiding unnecessary pronouncements that might have diminished the force of its holding. While a unanimous Court declared that “separate educational facilities are inherently unequal,” 347 U.S. at 495, it left the specifics of antidiscrimination doctrine to develop over a series of fact patterns and institutional contexts, see, e.g., Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v. Cty. Sch. Bd., 391 U.S. 430 (1968).
Other areas of constitutional law have similarly developed after this Court identified a manageable standard but demurred from announcing a particular test for assessing it. Wilson v. Arkansas, for example, declared that circumstances might exist where unannounced entry would be constitutional, but “le[ft] to the lower courts the task of determining the circumstances” when such an entry would survive scrutiny. 514 U.S. 927, 936 (1995). And United States

11
v. Lovasco announced the “fundamental conceptions of justice” standard for assessing the constitutionality of pre-indictment delays, but gave lower courts the opportunity to decide what facts met that standard. 431 U.S. 783, 790, 796-97 (1977).
Similar examples abound in such divergent fields as antidiscrimination law, Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993); antitrust law, FTC v. Actavis, Inc., 133 S. Ct. 2223, 2238 (2013); takings law, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922); patent law, Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011); and remedies law, State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425-26 (2003).
It is not surprising that the Court routinely follows this modest approach in adjudicating constitutional claims. While the Court is wellpracticed at identifying workable standards, precise tests for implementing those standards are best developed over time. This careful approach allows the Court to take advantage of the experience and expertise accumulated across cases and contexts. Rather than trying to judge the merits of a statistical test entirely on its own, it is able to harness the energies of the adversarial process and assure itself of the reliability of the test. As Justice Gorsuch recently observed:
Respectfully, it seems to me at least reasonably possible that the crucible of adversarial testing on which we usually depend, along with the experience of our thoughtful colleagues on the district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided only by our

12
own lights. . . . Other circuits may improve that guidance over time too. And eventually we can bless the best of it.
Maslenjak, 137 S. Ct. at 1931-32 (opinion of Gorsuch, J.).
C. Now Is The Time For The Court To Act.
Now is the moment for the Court to begin this important process of testing and reflection. As voters and legislators have become more loyal to their parties, partisan self-interest threatens to swamp the districting process. See Andrew Gelman & Gary King, Estimating the Electoral Consequences of Legislative Redistricting, 85 J. AM. STAT. ASSOC. 274, 281 (1990) (hereinafter Gelman & King); Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 872 (2015). Gerrymanders are growing in effectiveness, dramatically amplifying the natural effects of population clustering. Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 STAN. L. REV. 1263, 1267-68 (2016) (hereinafter Wang, Three Tests).
In addition, new technology makes it increasingly easy for legislatures to craft partisan gerrymanders that “separate different populations of voters in exquisite detail.” Wang, Three Tests, supra, at 1267. Because “[t]he first instinct of power is the retention of power,” McConnell, 540 U.S. at 264 (Scalia, J., concurring in part and dissenting in part), these new tools create the risk that legislative majorities—if left to their own devices—will hold power indefinitely even if their political support substantially erodes.

13
Litigants and lower courts await the Court’s guidance on this crucial issue. If the Court remains quiescent in advance of the 2020 Census, by which time the tools of redistricters will become even more effective, the representational harms of which plaintiffs complain will be inflicted on voters from both parties in districts across the country.
II. Partisan Symmetry Is A Workable Standard With Ancient Roots And Overwhelming Support From Social Scientists.
A workable standard for adjudicating partisan gerrymandering claims exists: partisan symmetry. The standard has already garnered interest from several Justices. See LULAC, 548 U.S. at 420 (opinion of Kennedy, J.); id. at 466 (opinion of Stevens, J.); id. at 483 (opinion of Souter, J.); id. at 492 (opinion of Breyer, J.). All but universally supported by social scientists, it is a robust standard that is easy to understand and to measure. While the absence of symmetry, standing alone, is not enough to establish a constitution violation, it should be part of the broader constitutional inquiry. The district court, for instance, deployed the symmetry principle as part of a three-part test to assess whether a map is the product of discriminatory intent, produces a severe and durable asymmetry, and lacks a legitimate neutral justification. Whitford v. Gill, 218 F. Supp. 3d at 884, 903-06.
Partisan symmetry is simple to define: a set of districts are symmetrical when reversing the outcome of the election—flipping each party’s average district vote totals—would also reverse the number of seats won. See, e.g., Wang, Three Tests, supra, at 1281;

14
Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. OF POL. SCIENCE 514 (1994). The standard makes no assumptions about the voting behavior of individual voters but simply assesses how a given plan translates votes into seats. Symmetry tests do not mandate proportional representation or require a particular ratio of seats to votes. They merely measure whether members of both parties have a chance to translate votes into seats in the same way.
A. Partisan Symmetry Is A Deeply Intuitive Standard With Ancient Roots.
Partisan symmetry is a deeply intuitive standard for measuring discrimination. It asks a simple question: what would happen if the tables were turned? This standard does not require the Court to micromanage legislators or usurp the role of a state’s legislative branch. It simply requires a legislature to apply its chosen districting criteria in an evenhanded fashion. Just as it would be unfair if one candidate had to win many more votes within a district than his opponent in order to take office, so, too, it would be unfair if one party had to win many more votes than the other in order to win the same number of seats.
Needless to say, much of the statistical work in discrimination law is designed to answer the same question. In Title VII cases, for instance, the Court’s aim is to test whether a black or female candidate was treated in the same fashion as a similarly situated white or male candidate. See, e.g., Bazemore v. Friday, 478 U.S. 385, 395-96 (1986) (per curiam). So, too, in housing discrimination cases, “testers” are used to determine whether landlords treat some homebuyers

15
differently than others. Havens Realty Corp. v. Coleman, 455 U.S. 363, 368 (1982).
While modern discrimination law is replete with examples of symmetry standards, the principle’s roots are ancient. One finds, for instance, examples in Judeo-Christian ethics, Genesis 13:8-9; Matthew 7:12. The notion of turning the tables is so powerful that it is a canon of literature, WILLIAM SHAKESPEARE, A MIDSUMMER NIGHT’S DREAM; WILLIAM SHAKESPEARE, TWELFTH NIGHT; MARK TWAIN, THE PRINCE AND THE PAUPER (1881), music, W.S. GILBERT & ARTHUR SULLIVAN, H.M.S. PINAFORE (1878), and moral philosophy, JOHN RAWLS, A THEORY OF JUSTICE 73-78 (rev. ed. 1999). This measure of fairness is deployed across cultures. See CINDERELLA ACROSS CULTURES (Martine Hennard Dutheil de la Rochère et al. eds., 2016); Heather K. Gerken, Second Order Diversity, 118 HARV. L. REV. 1099, 1146 & n.124 (2005) (discussing Japanese tradition). Even children rely on the time-honored strategy of “I cut, you choose.”
B. Social Scientists Resoundingly Support A Partisan Symmetry Standard.
Partisan symmetry is a principle that enjoys near universal support among social scientists. Needless to say, this type of unanimity is rare in academic circles. Since the measure was articulated in its modern form in 1987, see generally Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 AM. POL. SCI. REV. 1251 (1987), no social scientist has challenged its theoretical legitimacy or analytical force. Indeed, as Bernard Grofman and Gary King, the two political scientists who first brought partisan symmetry to the

16
Court’s attention in LULAC, explain, “social scientists have long recognized partisan symmetry as the appropriate way to define partisan fairness . . . and for many years such a view has been virtually a consensus position of the scholarly community.” Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 ELECTION L.J. 2, 6 (2007).
In the wake of this Court’s discussion of partisan symmetry in LULAC, social scientists continued to refine the theoretical and methodological underpinnings of partisan symmetry. E.g., Wang, Three Tests, supra; John F. Nagle, Measures of Partisan Bias for Legislating Fair Elections, 14 ELECTION L.J. 346 (2015); Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 ELECTION L.J. 312 (2015); Grofman & King, supra; Anthony J. McGann et al., A Discernable and Manageable Standard for Partisan Gerrymandering, 14 ELECTION L.J. 295 (2015); Stephanopoulos & McGhee, supra. Each of these articles has endorsed the partisan-symmetry standard. And no scholarly piece published after LULAC has cast doubt on this consensus. The standard is routinely used by plaintiffs and defendants in litigation. Indeed, amici Gary King and Jonathan N. Katz have deployed the standard while serving as expert witnesses for both parties. See Grofman & King, supra, at 15; see also Intervening Defendants’ Brief in Response to the Court’s April 24, 2002 Case Management Order at 3-5, O’Lear v. Miller, 222 F. Supp. 2d 850 (E.D. Mich. 2002) (No. 2:01-cv72584-JAC-PJK); Petitioner’s Opening Brief, Maestas

17
v. Hall, 274 P.3d 66 (N.M. 2012) (No. 33,387), 2012 WL 3236221, at *6, *24; Plaintiffs' Initial Closing Brief at 22, Romo v. Detzner, No. 2012-CA-000412, 2014 WL 3797315 (Fla. Cir. Ct. July 10, 2014) (Nos. 2012-CA000412, 2012-CA-00490), 2014 WL 4254379.
In short, the standard has now been rigorously vetted and widely applied, and it remains the touchstone for measuring fairness in redistricting.
III. Partisan Symmetry Lends Itself To A Manageable Test With Many Doctrinal Virtues.
As a deeply intuitive and widely accepted measure of fairness, partisan symmetry has many virtues. Nonetheless, the Court should assure itself that a partisan-symmetry standard lends itself to a manageable test. While the Court need not endorse a particular test in this case, it must be sure that tests for partisan symmetry are reliable and difficult to manipulate. Symmetry tests should deploy actual election outcomes rather than hypothetical maps created by experts. Courts should be able to adapt the symmetry standard to different contexts and apply it without relying unduly on experts or displacing appropriate democratic judgments. Finally, symmetry tests should measure electoral opportunity rather than guarantee proportional victories and map cleanly onto the constitutional wrongs that animate redistricting law. Leading partisan-symmetry tests easily meet those conditions.

18
A. Partisan Symmetry Relies On The Most Basic Statistical Measures And Is Thus Transparent And Easy To Calculate Without Undue Reliance On Experts.
Partisan symmetry is transparent, easy to calculate, and does not require undue reliance on experts. Rooted in statistical science, symmetry tests are designed to figure out whether a given seat distribution is the product of traditional districting principles or partisan manipulation. Gelman & King, supra, at 280-82. It thus identifies genuine partisan discrimination while avoiding false positives. Calculating deviations from the standard is simple and straightforward. It is possible to identify deviations without the need for complex modeling. Indeed, most of the tests for measuring partisan asymmetry are as straightforward as the test this Court uses to determine violations of the one-person one-vote standard.
While a variety of methods exist for calculating deviations from partisan symmetry, at their core symmetry tests rely on well-known and well-accepted statistical methods widely used in classrooms and courts. They answer the key question in gerrymandering cases: whether each party has the same opportunity to translate votes into seats.
Once the basic operation is complete, the court is left with a symmetry score. All that is left to do is to assess whether the asymmetry is the result of a factor the Court may consider legitimate—such as traditional districting principles or political geography—rather than intentional discrimination.

19

Gauging the extent of partisan asymmetry is just

as straightforward as identifying whether asymmetry

exists in the first place. One need only rely on basic

statistical methods. Statistical significance tests are

almost three centuries old, measured in a fashion that

is indifferent to the underlying cause, and developed

entirely outside the context of redistricting. See John

Arbuthnott, An Argument for Divine Providence,

Taken from the Constant Regularity Observ'd in the

Births of Both Sexes, 27 PHIL. TRANSACTIONS ROYAL

SOC’Y 186 (1710). Indeed, the “Student’s t-test” for

comparing two averages, developed nearly a century

ago by a beer brewer for quality control of hops, has

become the most widely used test in all of science. See

Student, The Probable Error of a Mean, 6 BIOMETRIKA

1 (1908); see, e.g., RONALD A. FISHER, STATISTICAL

METHODS FOR RESEARCH WORKERS 17 (11th ed. 1950);

G. UDNY YULE & MAURICE G. KENDALL, AN

INTRODUCTION TO THE THEORY OF STATISTICS 162-63

(3d ed. 1950); Richard Lowry, Chapter 11: t-Test for the

Significance of the Difference Between the Means of

Two Independent Samples, CONCEPTS AND

APPLICATIONS

OF

INFERENTIAL

STATISTICS,

http://vassarstats.net/textbook/ch11pt1.html.

Unsurprisingly, courts have long used such tests in a

variety of legal contexts. See Castaneda v. Partida, 430

U.S. 482, 496 n.17 (1977) (explaining the concept of t-

testing); see also, e.g., Matrixx Initiatives, Inc. v.

Siracusano, 563 U.S. 27, 40-41 (2011) (securities law);

General Elec. Co. v. Joiner, 522 U.S. 136, 145-46 (1997)

(expert testimony); Bazemore, 478 U.S. at 398 (per

curiam) (employment discrimination).

Using these basic parameters, scholars have developed a range of partisan-symmetry tests that are

20
adaptable to a range of contexts. In a recent Stanford Law Review essay, for instance, amicus Samuel S.-H. Wang proposed three tests to evaluate partisan gerrymanders, all rooted in partisan symmetry. Wang, Three Tests, supra, at 1269. These tests search for disparities between the partisan makeup of the state and the number of seats won, discrepancies in the winning vote margins of the two parties (i.e., lopsided wins by one party), and the construction of seats where a party performs above the state average. Id. at 130608. Other scholars have developed similar measures. E.g., Grofman & King, supra; McDonald & Best, supra; Nagle, supra; Stephanopoulos & McGhee, supra; Gelman & King, supra.
Many of these tests are as simple as the test this Court uses to assess one-person one-vote violations. One of Professor Wang’s three symmetry tests involves comparing only two factors: the share of Democratic votes in the districts that Democrats win and the share of Republican votes in the districts that Republicans win. Wang, Three Tests, supra, at 1306. Calculating the significance of the difference using Student’s t-test is hardly more complicated than the three-part test for one-person, one-vote violations that this Court described in Vieth, 541 U.S. at 290 (plurality opinion). Indeed, as Professor Wang states, the test is performed using Student’s t-test and can be “worked out using a spreadsheet program such as Microsoft Excel,” with no statistical background required. Wang, Three Tests, supra, at 1308-09.
Another of Professor Wang’s tests detects gerrymanders by comparing each party’s median vote share across districts to its mean vote share. Id. at 1306-07. This "mean-median difference" is well over a

21

century old. See Karl Pearson, Contributions to the Mathematical Theory of Evolution, II: Skew Variation in Homogeneous Material, PHIL. TRANSACTIONS ROYAL SOC’Y (1895) at 343-414. It is similarly straightforward. Just as “judges can multiply and divide,” Karcher, 462 U.S. at 751 (Stevens, J., concurring), they can add and subtract. As a result, determining partisan asymmetry does not require undue reliance on statisticians or other experts.

Partisan-symmetry tests thus possess a significant advantage over standards that the Court has rejected in the past. Unlike proposals this Court has previously discarded, partisan-symmetry analysis does not require the creation of “hypothetical district[s].” Vieth, 541 U.S. at 349 (Souter, J., dissenting).

B. Partisan-Symmetry

Tests

Differ

Fundamentally From A Proportional

Representation Standard.

Partisan symmetry differs fundamentally from a “proportional representation” standard, which this Court has made clear the Constitution does not require. See LULAC, 548 U.S. at 403. Partisansymmetry tests need not demand any equivalence between the number of votes won and the number of seats won. See Wang, Three Tests, supra, at 1285-86. Instead, they merely ask whether each side has roughly the same opportunity to translate votes into seats. For instance, a map would be perfectly symmetrical if a party that wins 60% of the average district vote receives 80% of the seats, provided that the opposing party could do the same.

22
C. Partisan Symmetry Tests Can Distinguish Between Partisan Manipulation And The Effects Of Traditional Districting Principles.
Another important feature of partisan symmetry tests is that they can distinguish the effects of partisan interference in the districting process from the effects of traditional districting principles, such as compactness and contiguity. Wang, Three Tests, supra, at 1319-20. Simple simulation techniques that employ real electoral returns can be used to tease out the effects—if any—of voter clustering and political geography to any observed asymmetries. See Wang, Three Tests, supra, at 1289-98; see also Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 ELECTION L.J. 351 (2016); Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 ELECTION L.J. 331 (2015); Michael Altman & Michael P. McDonald, BARD: Better Automated Redistricting, 42 JOURNAL OF STATISTICAL SOFTWARE 1 (2011); Benjamin Fifield et al., A New Automated Redistricting Simulator Using Markov Chain Monte Carlo, available at http://imai.princeton.edu/research/files/redist.pdf.
Like the other tests discussed here, mathematical simulation is hundreds of years old, see Georges Louis Leclerc Buffon, Histoire Naturelle, Générale et Particulière 100-04 (Supplèment, Tome Quatrième (1777)), and has been used in its modern form at least since the development of the atomic bomb, see RICHARD RHODES, THE MAKING OF THE ATOMIC BOMB 522-60 (1986). Conceptually no more complicated than

23

drawing numbers from a hat, these simulations are

easily done on a desktop computer or using publicly

available software tools. See, e.g., PRINCETON

GERRYMANDERING

PROJECT,

gerrymander.princeton.edu.

D. Because Symmetry Tests Do Not Rely On Subjective Judicial Judgments, They Generate Highly Predictable Measures That Do Not Displace Appropriate Districting Criteria.

The simplicity of partisan-symmetry tests leads to other doctrinal virtues. These tests are difficult to manipulate because they do not lend themselves to subjective judgments. Judges, for instance, need not adjudicate what those in districting circles deride as “beauty contests” among competing plans. Vera, 517 U.S. at 977.
Because partisan-symmetry tests do not deploy difficult-to-replicate analyses that depend heavily on the judgments of experts, they generate stable, highly predictable measures of fairness that are accessible to legislators and citizens alike. See Andrew Gelman, Gary King, & Andrew Thomas, JudgeIt II: A Program for Evaluating Electoral Systems and Redistricting Plans (2010), available at http://j.mp/2ovSNfh. Symmetry tests are easy to assess in advance and difficult to manipulate during litigation, something that is especially appropriate in context like this one. They thus are “judicially discernible and manageable.” Davis v. Bandemer, 478 U.S. 109, 123 (1986) (plurality opinion).

Nor do partisan-symmetry tests displace appropriately democratic criteria. See White v. Weiser,

24
412 U.S. 783, 795-96 (1973) (reminding courts remedying one person, one vote violations to “honor state policies” and not disregard “important state interests,” nor “pre-empt the legislative task”). In resolving cases using the partisan-symmetry standard, judges need not impose any particular districting criteria on legislatures. A legislature can choose which districting criteria it values most—and how to rank those criteria relative to one another—so long as it applies them fairly to both sides. All that courts need ask of legislatures is that they not discriminate against those who subscribe to a competing agenda.
E. Symmetry Tests Measure Opportunity, Not Outcome, And Are Thus Tailored To The Constitutional Harm At Issue.
Partisan-symmetry tests measure opportunity, not outcomes. They assess how easy it is for each party to translate popular support into political power but do not guarantee success at the polls. See Gelman & King, supra. Courts will step in only when a districting plan makes it much more difficult for voters of one party to enact their ideas than voters of the other party given the same support among voters—precisely the sort of discrimination that has concerned the Court and Congress in the context of race. See LULAC, 548 U.S. at 438-39; Gingles, 478 U.S. at 46.
For these reasons, the symmetry standard is welltailored to the constitutional wrongs at issue in this case. Because partisan symmetry simply requires that one side not be substantially disadvantaged by district lines, it accurately measures whether the state has denied voters the equal protection of the laws. And

25
because it measures the ability of voters to convert ideas into majorities—and thus to translate speech into action—it appropriately reflects the First Amendment considerations on which the opinion below rested. Whitford v. Gill, 218 F. Supp. 3d at 88084; see Vieth, 541 U.S. at 314-15 (Kennedy, J., concurring in the judgment).
F. Partisan Symmetry Tests Are Flexible And Can Be Deployed Simultaneously To Ensure That Judges Can Identify Extreme Outliers And Be Confident In The Robustness Of Their Findings.
Partisan-symmetry tests offer a final, distinctive advantage. Partisan-symmetry tests all answer the same, simple question and rely on a shared standard. But they are flexible enough to accommodate contextual differences, thus allowing courts to choose the test best suited for assessing a particular plan. See, e.g., Wang, Three Tests, supra, at 1306-09; see also Samuel S.-H. Wang, Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, 15 ELECTION L.J. 367, 377-81 (2016) (hereinafter Wang, Application).
More importantly, a court can assess a districting plan using more than one symmetry test. Extreme gerrymanders will certainly perform poorly along more than one symmetry measure. Judges can thereby use multiple symmetry tests to assure themselves of the robustness of their assessment and identify extreme outliers.

26
IV. Wisconsin’s Legislative Districts Would Fail Under Virtually Any Partisan-Symmetry Test The Court Might Choose.
In this case, for instance, Wisconsin’s plan performs poorly under virtually any measure of partisan symmetry. After the 2010 redistricting, Democratic wins have been more lopsided compared with Republican wins. In the 2010 elections, legislators in the two parties won approximately equal-sized victories on average: 65% of the two-party vote for Democratic legislators and 66% for Republican legislators.5 But in 2012, immediately after redistricting, the average Democratic win jumped to 69%, while the average Republican win fell to 60%. The difference, nine percentage points, is highly unlikely to have arisen in the absence of intentional discrimination. Indeed, the probability that this disparity was an unintentional product of a neutral districting process is less than one in ten million. And vote-share difference persisted into subsequent elections. See, e.g., Wang, Application, supra, at 380. Again, as a statistical matter, it is highly unlikely that this disparity, which has persisted across three election cycles, was the product of traditional districting principles.
A second test, the mean-median difference, is well suited to closely divided states such as Wisconsin. The mean-median difference is easy to calculate, and can
5 These numbers were calculated using standard imputations from the “State Legislative Election Returns” data set. CARL KLARNER ET AL, STATE LEGISLATIVE ELECTION RETURNS DATA, 1967-2010 (Harvard Dataverse V1, hdl:1902.1/20401, UNF:5:q/n5C9RQGfjy6AjbLG6JWQ==, 2013).

27
be figured with a pencil and paper or a hand calculator. It derives from the mean and the median, two statistical quantities that are usually taught to schoolchildren by the sixth grade. See Sam Wang, Let Math Save Our Democracy, N.Y. TIMES, Dec. 5, 2015.
After redistricting, in 2012 the average Democratic vote share across all districts was 51.5% and the median vote share was 45.7%. That result would have occurred unintentionally in less than one out of 100,000 cases. Wang, Application, supra, at 380. Again, this disparity persisted across three election cycles. Id.
Just as these results are highly unlikely to have arisen unintentionally, they cannot be explained by voters’ geographical sorting or other nonpartisan mechanisms. Although Appellants claim that “the facts of political geography” complicate partisansymmetry analysis, J.S. 34, partisan-symmetry tests can take those facts into account.
Such an exercise would not be necessary in Wisconsin, where partisan asymmetry effectively arose overnight, immediately after redistricting. Needless to say, the political geography of Wisconsin did not change radically during this short period.
In this case, all partisan-symmetry tests point to the same conclusion: in Wisconsin, partisans deliberately crafted legislative districts to insulate themselves from defeat. Those districts ensured one party could put its ideas into action while denying its opponents a fair opportunity to translate votes into a legislative majority. For these reasons, the Court should adopt a partisan-symmetry standard to adjudicate partisan gerrymandering claims and strike

28 down Wisconsin’s egregiously gerrymandered Assembly maps.
CONCLUSION The judgment of the district court should be affirmed.
Respectfully submitted,

Kevin K. Russell GOLDSTEIN &
RUSSELL, P.C. 7475 Wisconsin Ave. Suite 850 Washington, DC 20814

Heather K. Gerken Counsel of Record
127 Wall Street New Haven, CT 06511 (203) 432-1660 heather.k.gerken@
yale.edu

 
 No. 16-1161
IN THE
Supreme Court of the United States

BEVERLY R. GILL, ET AL., Appellants,
v.
WILLIAM WHITFORD, ET AL., Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
BRIEF FOR AMICUS CURIAE ERIC S. LANDER IN SUPPORT OF APPELLEES

H. REED WITHERBY Counsel of Record
SMITH DUGGAN BUELL & RUFO LLP 99 Summer Street, Suite 1530 Boston, Massachusetts 02110 617.228.4407 rwitherby@smithduggan.com

Counsel for Amicus Curiae Eric S. Lander

Dated: August 31, 2017
BATEMAN & SLADE, INC.

BOSTON, MASSACHUSETTS

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................v
INTEREST OF AMICUS CURIAE ............................1
SUMMARY OF THE ARGUMENT............................3
ARGUMENT ...............................................................7
I. A JUDICIALLY MANAGEABLE STANDARD FOR RECOGNIZING EXCESSIVELY PARTISAN GERRYMANDERS REQUIRES SOME QUANTITATIVE FOUNDATION. .....................................7
II. TECHNOLOGY IS A THREAT THAT WILL GROW INEXORABLY IF COURTS REFUSE TO ENTERTAIN ANY CLAIMS OF PARTISAN GERRYMANDERING. ..........................8
III. TECHNOLOGY NOW ALSO PROVIDES A STRAIGHTFORWARD AND OBJECTIVE WAY TO RECOGNIZE WHEN A STATE HAS CHOSEN A REDISTRICTING PLAN THAT IS EXCESSIVELY PARTISAN. ..........11
i

A. The excessiveness of a redistricting plan may be determined by comparing it to the distribution of outcomes for all possible plans that satisfy the State’s declared goals................13
B. Although it is not feasible to enumerate every possible redistricting plan, computers may be used to calculate the distribution of possible outcomes with good accuracy by examining a large, representative sample of such plans..................................18
C. This approach for assessing excessiveness can be applied to any suitable individual measure of partisan outcome—or to any combination of measures that a court wishes to consider. ....................................19
D. An extreme outlier standard would address justiciability concerns raised by this Court. .................20
ii

IV. DETERMINING A DISTRIBUTION OF OUTCOMES FROM A LARGE SAMPLE IS A COMMONLY USED AND RELIABLE COMPUTATIONAL PROCEDURE. .....................................23
A. The United States relies on computational analyses of distributions of outcomes for critical national needs, including national defense. .......................23
B. In the past decade, computational methods have been increasingly used to calculate the distribution of outcomes for possible redistricting plans. .........................................26
C. The use of computational analysis to compare a State’s plan to the distribution of outcomes for comparable plans is practicable. ................................29
V. WISCONSIN’S PLAN IN THIS CASE IS AN EXTREME OUTLIER. ............................................30
iii

VI. AN EXTREME OUTLIER STANDARD WOULD PROVIDE GUIDANCE TO THE PARTIES AND BOLSTER CONFIDENCE IN THE COURTS. ...............................33
CONCLUSION ..........................................................35
iv

TABLE OF AUTHORITIES
CASES:
Baker v. Carr, 369 U.S. 186 (1962) ..........................................8
Benisek v. Lamone, U.S.D.C. (D. Md.), Civil Action No. 13-cv-03233 ..............................................11
Brown v. Thomson, 462 U.S. 835 (1983) ........................................22
Committee for a Fair and Balanced Map v. Ill. State Bd. of Elec., 835 F. Supp. 2d 563 (N.D. Ill. 2011) ..............11
Common Cause v. Rucho, U.S.D.C. (M.D.N.C.), Civil Action No. 16-cv-1026 ................................................11
Davis v. Bandemer, 478 U.S. 109 (1986) ....................................8, 10
Georgia State Conf. of NAACP v. Georgia, U.S.D.C. (N.D. Ga.), Civil Action No. 17cv01427.................................................11
Karcher v. Daggett, 462 U.S. 725 (1983) ........................................22
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ........................................16
v

League of Women Voters v. Pennsylvania, Commonwealth Court of Pennsylvania, Civil Action No., 261 MD 2017 ......................11
League of Women Voters v. Rucho, U.S.D.C. (M.D.N.C.), Civil Action No. 16-cv-1164 ................................................11
Perez v. Abbott, U.S.D.C. (W.D. Tx.), Civil Action No. 11-cv-00360 ..............................................11
Reynolds v. Sims, 377 U.S. 533 (1964) ..........................................7
Shaw v. Reno, 509 U.S. 630 (1993) ........................................15
Tennant v. Jefferson County Comm’n, 567 U.S. 758 (2012) ........................................22
Vieth v. Jubelirer, 541 U.S. 267 (2004) ................................ passim
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) .............6
STATUTES:
52 U.S.C. § 10301 ......................................................16 52 U.S.C. § 10303(f)(2) ..............................................16
vi

OTHER AUTHORITIES:
Board of Governors of the Federal Reserve System, The Supervisory Capital Assessment Program: Design and Implementation, Apr. 24, 2009 ......................25
Sinan Akkar & Yin Cheng, Application of a Monte-Carlo Simulation Approach for the Probabilistic Assessment of Seismic Hazard for Geographically Distributed Portfolios, 45 Earthq. Eng. Struct. D. 525 (2016) .......................................................25
Micah Altman, Karin MacDonald & Michael McDonald, From Crayons to Computers: The Evolution of Computer Use in Redistricting, 23 Soc. Sci. Comput. Rev. 334 (2005) ..........................26, 27
Micah Altman & Michael McDonald, The Promise and Perils of Computers in Redistricting, 5 Duke J. Const. L. & Pub. Pol’y 69 (2010)........................................27
Sachet Bangia, et al., Redistricting: Drawing the Line, arXiv:1704.03360 (arXiv preprint 2017)................................................28
V. Bolotin, Seismic Risk Assessment for Structures with the Monte Carlo Simulation, 8 Probabilist. Eng. Mech. 169 (1993) .......................................................25
vii

Forrest B. Brown, A Review of Best Practices for Monte Carlo Criticality Calculations, Los Alamos Report LAUR- 09-03136 (2009).......................................24
Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L. J. 331 (2015) ...................................................28
Jowei Chen & David Cottrell, Evaluating partisan gains from Congressional gerrymandering: Using computer simulations to estimate the effect of gerrymandering in the U.S. House, 44 Elect. Stud. 329 (2016) ..............................28
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L. J. (forthcoming 2017) ..................... 28, 30-31
Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016) ...........................26, 27
Peter J. Denning & Ted G. Lewis, Exponential Laws of Computing Growth, 60 Commun. ACM 54 (2017)...............................27
viii

Sequential Monte Carlo Methods in Practice, (Arnaud Doucet, Nando de Freitas, & Neil Gordon eds., 2001) ..................................24
Andrew Gelman, et al., Bayesian Data Analysis, (3rd ed. 2013)..................................24
Thomas M. Hamill, et al., NOAA’s Future Ensemble-Based Hurricane Forecast Products, 93 Bull. Amer. Meteor. Soc. 209 (2012) .......................................................25
Randy Heffernan, Fed Uses Monte Carlo Simulation for Stress Test, Risk & Decision Analysis News Blog, May 29, 2009 ................................................................. 25
Jonathan Krasno, et al., Can Gerrymanders Be Measured? An Examination of Wisconsin’s State Assembly (forthcoming) ..................................................28
Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm Evol. Comput. 78 (2016) ....................................... 26, 27-28, 29
Jonathan C. Mattingly & Christy Vaughn, Redistricting and the Will of the People, arXiv:1410.8796 (arXiv preprint 2014) .........28
ix

Jonathan C. Mattingly & Gregory Herschlag, Evaluating Partisan Gerrymandering in Wisconsin (2017) ........................................31
Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L. J. 312 (2015)............................28
Jo Craven McGinty, As Forecasts Go, You Can Bet on Monte Carlo, Wall St. J., Aug. 12, 2016...........................................................25
Nicholas Metropolis, The Beginning of the Monte Carlo Method, 15 Los Alamos Sci. 125 (1987) ................................................24
National Academy of Sciences, Statement on Analysis of Voting Redistricting Plans..........30
Note, An Interstate Process Perspective on Political Gerrymandering, 119 Harv. L. Rev. 1576 (2006) .............................................10
Christian Robert & George Casella, Monte Carlo Statistical Methods (2004) ...................24
Nicholas O. Stephanopoulos, Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769 (2013) ..............................................................10
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) .................................................10, 27
x

Stephen M. Summers & William T. Hollowell, NHTSA’s Crashworthiness Modeling Activities, National Highway Transportation Safety Administration, Paper #251 (2001)..................................... 25-26
James D. Thoreson & John M. Liittschwager, Computers in Behavioral Science: Legislative Districting by Computer Simulation, 12 Syst. Res. Behav. Sci. 237 (1967) .......................................................26
Andrea Lecchini Visintini, et al., Monte Carlo Optimization for Conflict Resolution in Air Traffic Control, 7 IEEE Trans. Intell. Transp. Syst. 470 (2006) .....................25
xi

INTEREST OF AMICUS CURIAE 
Amicus Curiae Eric S. Lander is an expert in the scientific analysis of large datasets, who has served as an advisor to the Federal Government on matters of science and technology.
A mathematician and geneticist, Dr. Lander was one of the principal leaders of the Human Genome Project and led the analysis of its vast dataset. Dr. Lander serves as President and Founding Director of the Broad Institute of Harvard and MIT, a nonprofit research institution focused on genomic medicine. He is also a professor on the faculties of Harvard and MIT.
Dr. Lander served from 2009 to 2017 as CoChair of the President’s Council of Advisors on Science and Technology (PCAST), an advisory group that directly advised the President of the United States on a wide range of matters, including information technology. He currently serves on the Defense Innovation Board (DIB), which advises the Secretary of Defense on innovative uses of technology for national defense.
Dr. Lander was elected to the U.S. National Academy of Sciences in 1997 and to the U.S. National Academy of Medicine in 1999. He has received numerous major awards for his research, including for his work analyzing large datasets.
 Counsel for all parties have filed with the Clerk of this Court letters granting blanket consent to the timely filing of amicus curiae briefs. No counsel for any party authored this brief in whole or in part, and no person other than the named amicus curiae and his counsel has made any monetary contribution intended to fund the preparation or submission of this brief.
1

Dr. Lander wishes to emphasize that this brief represents his own personal views. It is in no way intended as a statement of policy or position by the United States Government, the Broad Institute, Harvard, MIT, or any other entity.

At the heart of this case is the question of

whether there exists a judicially manageable

standard for recognizing extreme partisan

gerrymanders. As a leading researcher in the

analysis of large datasets, Dr. Lander has a strong

interest in alerting this Court to recent technological

advances that now enable the adoption of a judicially

manageable,

computer-based,

objective

mathematical standard that would (i) enable courts

to evaluate claims of excessive partisan

gerrymandering by comparing the degree of partisan

bias in a State’s plan to the bias in all other

comparable plans that achieve the State’s declared

goals; (ii) provide guidance and reasonable leeway to

States; and (iii) protect voters’ constitutional rights.

2

SUMMARY OF THE ARGUMENT
This case hinges on the question of whether there is a judicially manageable standard that would enable courts to determine when the partisan bias of a redistricting plan is so excessive as to render the plan unconstitutional.
This question has grown in importance, as recent technological advances have made it ever easier for a political party in power to design redistricting plans that entrench itself—even when its voters constitute a minority of the electorate.
In Vieth v. Jubelirer, 541 U.S. 267 (2004), all nine Justices of this Court agreed that extreme partisan gerrymanders are incompatible with democratic principles and violate the Constitution. This Court, however, has not yet agreed upon a standard for determining when the partisan bias of a redistricting plan is so extreme as to be unconstitutional. Rather, it has taken a patient approach.
Justice Kennedy presciently observed that “technology is both a threat and a promise,” noting that the same advances that enable increasingly extreme partisan gerrymandering might also provide a solution. Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment).
Technology has now delivered on that promise. Due to progress over the past decade, it is now possible for this Court to adopt an objective, judicially manageable standard that asks:
Is the State’s chosen redistricting plan an ‘extreme outlier’—that is, is its expected partisan outcome more extreme than that of the great majority
3

of all possible plans that accomplish the State’s declared goals as well as the State’s chosen plan?
If so, the plan is not plausibly explained by the State’s declared goals. Rather, it prima facie constitutes excessive partisanship.
An extreme outlier standard would properly (i) respect the State’s declared objectives (e.g., population equality, minority voting rights, compactness, contiguity, and preservation of political subdivision boundaries); (ii) reflect the State’s political geography (including any ‘natural packing’ of political parties); (iii) provide clear guidance to States; (iv) protect voters’ constitutional rights and (v) minimize litigation. Moreover, it provides capacious room for political considerations, and neither requires nor expects proportionality in the result.
The extreme outlier standard would divide a court’s analysis into three distinct steps:
(1) Legal analysis: The court would examine whether a State’s declared goals are consistent with Federal law and the U.S. Constitution, as well as any applicable state constitutional or statutory requirements. This is a purely legal analysis of the sort that courts routinely undertake.
(2) Quantitative evidence: The parties would present evidence identifying the quantitative degree to which the State’s plan is an outlier with respect to its expected partisan outcome. Computers now make it possible to answer this question by (i) sampling thousands or even millions of possible redistricting plans that meet the State’s declared goals for redistricting comparably to the State’s
4

chosen plan; (ii) measuring the expected partisan outcome for each such plan; (iii) displaying the distribution of the expected partisan outcomes across these plans; and (iv) situating the State’s chosen plan along that continuum (that is, its percentile along the distribution; see Figure 1), to reveal the degree to which it is an outlier. (Here, partisan outcome can be defined by any suitable metric. The simplest—and arguably most relevant—is the number of seats that a given political party would be expected to win under the plan. But courts could also choose to consider other metrics, such as the efficiency gap.)
This is a mathematical question to which there is a right answer. With improvements in technology, it is feasible to calculate that answer with good accuracy. Thus, even opposing parties in a case should obtain highly similar results.
Notably, the Federal Government relies on analogous calculations (involving the analysis of distributions of outcomes) for national defense and public safety—including, for example, assessing whether a nuclear weapon will detonate properly, and whether Miami is safely out of the path of a hurricane. In the past decade, scholars have also increasingly used such computational methods to calculate the distribution of outcomes for possible redistricting plans.
(3) Threshold analysis: The court would use this quantitative assessment in reaching a decision about the ultimate question: Is the plan so extreme that it constitutes excessive partisanship? This previously unavailable information (concerning how far out on the distribution the State’s chosen plan lies relative to all other comparable plans) uniquely
5

sheds light on whether the plan “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Whitford v. Gill, 218 F. Supp. 3d 837, 884 (W.D. Wis. 2016); App. J.S. 109a-110a. This objective information can be combined with other evidence regarding intent, effect, and justification.
In the case before this Court, Wisconsin’s redistricting plan enacted in 2010 under Act 43 is clearly an extreme outlier. Scholars who have used computational methods to calculate the distribution of outcomes have found Wisconsin’s plan has greater partisan bias than 99% of all possible comparable plans.
While States have considerable latitude in redistricting, there is a limit as to how far they properly may go to disadvantage their citizens on the basis of political affiliation or beliefs.
An extreme outlier standard would provide courts with an objective and quantifiable benchmark to evaluate whether a State’s plan has gone so far as to undermine democratic principles and violate the Constitution. It also would minimize litigation by providing objective guidance both to States and to potential challengers. Ultimately, it would bolster public confidence in the courts, by enabling them to strike down extreme partisan gerrymanders, but only on the basis of an objective, quantitative standard.
6

ARGUMENT
I. A JUDICIALLY MANAGEABLE STANDARD FOR RECOGNIZING EXCESSIVELY PARTISAN GERRYMANDERS REQUIRES SOME QUANTITATIVE FOUNDATION.
The key issue on this appeal is whether claims of excessively partisan redistricting are justiciable.
This Court has recognized that the right to vote is “fundamental . . . in a free and democratic society,” as it is “preservative of other basic civil and political rights,” Reynolds v. Sims, 377 U.S. 533, 561-62 (1964), and that the “basic aim” of redistricting is to provide “fair and effective representation for all citizens.” Id. at 565-566.
Moreover, all nine Justices of this Court in Vieth v. Jubelirer, 541 U.S. 267 (2004), agreed that excessively partisan redistricting is inimical to our democratic form of government and violates the U.S. Constitution.1
1 See 541 U.S. at 292 (plurality opinion) (“[w]e do not disagree” that severe partisan gerrymanders are incompatible with democratic principles); id. at 293 (“an excessive injection of politics is unlawful”) (emphasis in original); id. at 311-12 (Kennedy, J., concurring in the judgment) (“Allegations of unconstitutional bias in apportionment are most serious claims”); id. at 316 (“I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the plurality seems to acknowledge it is not.”); id. at 326 (Stevens, J., dissenting) (plurality’s opinion “seems to agree that if the State goes ‘too far’—if it engages in ‘political gerrymandering for politics’ sake’— it violates the Constitution”); id. at 343 (Souter, J., joined by Ginsburg, J.) (“if unfairness is sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality”); id. at 361 (Breyer, J., dissenting) (“the democratic harm of unjustified entrenchment is obvious”).
7

But this Court has struggled to articulate and agree upon “judicially discoverable and manageable standards,” Vieth v. Jubelirer, 541 U.S. 267, 277-278 (2004) (plurality opinion), quoting Baker v. Carr, 369 U.S. 186, 217 (1962), for recognizing when a particular redistricting plan unconstitutionally interferes with fair and effective representation for all citizens. Id.; Davis v. Bandemer, 478 U.S. 109 (1986).
A major reason for this difficulty, amicus submits, is that this Court has sought to define excessiveness based solely upon qualitative, verbal criteria. Excessiveness is a quantitative concept that requires some quantitative underpinning.
Recent advances in technology have made it possible to provide clear guidance about the quantitative degree to which the partisan bias of a redistricting plan is (or is not) extreme. Such objective guidance can now provide the foundation for a readily manageable judicial standard.
Justice Kennedy presaged this development in Vieth, where he wrote that “[t]echnology is a threat and a promise” for the future of partisan gerrymandering. 541 U.S. at 312. The following sections address the threat, and then the promise.
II. TECHNOLOGY IS A THREAT THAT WILL GROW INEXORABLY IF COURTS REFUSE TO ENTERTAIN ANY CLAIMS OF PARTISAN GERRYMANDERING.
Justice Kennedy warned in Vieth that “if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow.” 541 U.S. at 312.
8

Technology poses this growing threat because it makes it increasingly feasible to:
(i) collect or buy information about individuals (including party affiliation; voting frequency; past election results for their neighborhood; political donations; religious affiliation; ethnicity; online social network activity; income and spending habits; music preferences; and much more);
(ii) apply sophisticated computational methods (such as machine learning) to the aggregated information to build powerful predictive models of each individual’s party preferences;
(iii) map the predicted preferences and voting habits onto a State’s geography, using geographic information systems (GIS);
(iv) generate vast numbers of possible redistricting plans and evaluate their likely partisan outcomes (based on precinct-level results in recent elections, as well as other personal information noted above); and
(v) among those redistricting plans, choose extreme outliers that impose the greatest partisan bias.
If courts refuse to entertain any claims of partisan gerrymandering, political parties predictably will draw on rapidly accelerating technology to more effectively entrench themselves in power, by imposing extreme redistricting plans that disadvantage citizens holding opposing political affiliations or beliefs.
The risk to democracy of unfettered partisan gerrymandering is clear. If completely unchecked, a party that temporarily gains control of a State’s redistricting process could draw districts that assure
9

itself of legislative control (and potentially legislative supermajorities) even with only minority support of the voters, and could lock in the advantage by refreshing the gerrymanders as needed.
Justice O’Connor, in Davis v. Bandemer, 478 U.S. 109 (1986), suggested that political gerrymandering might turn out to be a “self-limiting enterprise,” because an aggressive gerrymander would run the risk of cutting the margins too fine, 478 U.S. at 152 (O’Connor, J., concurring in the judgment). But history has shown otherwise. In the present case, the Wisconsin legislature used modern technology (especially its expert’s ability to run a wide range of hypothetical election scenarios) specifically to confirm that its gerrymander, despite its aggressive nature, was indeed robust enough to withstand numerous electoral variations. App. J.S. 21a-27a, 41a-42a, 148a.
Indeed, there is clear evidence that extreme partisan gerrymandering has become more common and effective as a tool to entrench a party in power. The academic literature has found a steady trend to greater partisan gerrymandering in the 21st century, compared to the late 20th century.2 Moreover, the number of extreme partisan gerrymanders post-2010 is larger, by any reasonable assessment, than in any previous redistricting cycle. 3 Indeed, lawsuits alleging partisan gerrymandering post-2010 have
2 Note, An Interstate Process Perspective on Political Gerrymandering, 119 Harv. L. Rev. 1576, 1576 (2006); Nicholas O. Stephanopoulos, Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769, 819 (2013).
3 Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 836-838 (2015).
10

been filed in Illinois, 4 Georgia, 5 Maryland, 6 North Carolina,7 Pennsylvania, 8 and Texas,9 in addition to the instant case from Wisconsin. Notably, such claims have been made against both Republicans and Democrats.
III. TECHNOLOGY NOW ALSO PROVIDES A STRAIGHTFORWARD AND OBJECTIVE WAY TO RECOGNIZE WHEN A STATE HAS CHOSEN A REDISTRICTING PLAN THAT IS EXCESSIVELY PARTISAN.
Justice Kennedy, in Vieth, also saw the promise of technology. “These new technologies may produce new methods of analysis that make more evident the precise nature of the burdens that gerrymanders impose on the representational rights of voters and parties. That would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards.” 541 U.S. at 312.
4 Committee for a Fair and Balanced Map v. Ill. State Bd. of Elec., 835 F. Supp. 2d 563 (N.D. Ill. 2011).
5 Georgia State Conf. of NAACP v. Georgia, U.S.D.C. (N.D. Ga.), Civil Action No. 17cv01427.
6 Benisek v. Lamone, U.S.D.C. (D. Md.), Civil Action No. 13-cv-03233.
7 Common Cause v. Rucho, U.S.D.C. (M.D.N.C.), Civil Action No. 16-cv-1026; League of Women Voters v. Rucho, U.S.D.C. (M.D.N.C.), Civil Action No. 16-cv-1164.
8 League of Women Voters v. Pennsylvania, Commonwealth Court of Pennsylvania, Civil Action No. 261 MD 2017.
9 Perez v. Abbott, U.S.D.C. (W.D. Tx.), Civil Action No. 11-cv-00360.
11

Thus, while technology now enables political parties to impose excessive disadvantages on citizens holding opposing political affiliations or beliefs, technology can now also be used to determine objectively whether a State’s chosen plan goes too far—i.e., is an extreme outlier with respect to its degree of partisanship.
It is now possible, through the use of computers to examine extremely large representative samples, to employ a straightforward and objective extreme outlier standard:
A State’s chosen plan is an extreme outlier if its partisan bias exceeds that of the great majority of all possible plans that accomplish the State’s declared goals comparably to the State’s plan.
If so, the plan is not plausibly explained by the State’s declared goals. Rather, it prima facie constitutes excessive partisanship.
To apply an extreme outlier standard, a court would undertake a three-part analysis:
(1) Legal analysis: The court would examine whether a State’s declared goals are consistent with Federal law and the U.S. Constitution, as well as any applicable state constitutional or statutory requirements. This is a purely legal analysis of the sort that courts routinely undertake.
(2) Quantitative evidence: The parties would present evidence about the quantitative degree to which the State’s plan is an outlier in its expected partisan outcome, relative to all redistricting plans that meet the State’s declared goals comparably to
12

the State’s chosen plan. This is a mathematical question to which there is a right answer.
(3) Threshold analysis: The court would then weigh (i) this objective, quantitative assessment of the degree to which the State’s plan is an extreme outlier and (ii) other relevant information bearing on intent, effect, and justification, to determine whether the plan represents unconstitutionally excessive partisanship.
The following sections elaborate on the second component.
A. The excessiveness of a redistricting plan may be determined by comparing it to the distribution of outcomes for all possible plans that satisfy the State’s declared goals.
This section describes how excessiveness can be determined by examining all possible redistricting plans. Because examining all plans is not computationally feasible, the next section notes that modern technology makes it possible to accomplish the same goal by examining a very large, representative sample of such plans.
The fundamental idea is straightforward: compare the partisan outcome expected for the State’s plan to the distribution of expected partisan outcomes across all possible plans that comparably satisfy the State’s declared goals. The concept of the distribution of outcomes is shown in Figure 1.
13

Figure 1. This conceptual figure illustrates the evaluation of a State’s redistricting plan for an Assembly in two different States, labelled State A and State B. (Actual results for Wisconsin’s plan are shown in Figure 2.)
Each panel shows the hypothetical results of using a computer to (i) generate a large and representative sample of redistricting plans that satisfy the State’s declared goals comparably to the State’s chosen plan; (ii) determine the expected outcome for each plan (that is, the number of districts in which Republicans would have been expected to have had a majority of votes, if the plan had been in effect for a past election); (iii) aggregate the results; and (iv) display them on the bar chart.
14

The horizontal axis shows possible numbers of districts won. The height of each bar shows the proportion of redistricting plans with the corresponding outcome. (The frequencies add up to slightly less than 100%, because outcomes with frequencies below 0.1% are not shown.) The arrow indicates the expected outcome for each State’s plan.
State A’s chosen plan, with an expected outcome of 54 seats, is not an extreme outlier: it exceeds only 70% of the distribution for comparable plans. By contrast, State B’s State’s chosen plan, with an expected outcome of 57 seats, clearly is an extreme outlier: it exceeds 99% of all comparable plans.
To calculate the distribution of outcomes, one would proceed as follows:
(i) Generate a list containing every possible redistricting plan. Each plan would define precise district boundaries on the State’s actual geographic and population map, subject to the requirement that the plan properly satisfies the one person, one vote principle.
(ii) Discard all plans that fail to meet the State’s declared goals. A State is entitled to adopt various goals, provided that they bear a rational relationship to a legitimate governmental purpose and do not interfere with Federal constitutional and statutory requirements. Traditional examples include compactness, contiguity, and respect for political subdivision boundaries. 10 In each case, it is possible to measure the degree to which each plan
10 See Shaw v. Reno, 509 U.S. 630, 647 (1993) (identifying those as traditional redistricting principles).
15

accomplishes each of the goals. 11 One would then discard any plan that does not satisfy those goals comparably to the State’s chosen plan.
(iii) Discard all remaining plans that fail to satisfy requirements in Federal law or the Constitution, or, if applicable, the State’s constitution and laws. For example, the Voting Rights Act forbids a redistricting plan that “results in the denial or abridgement of the right of any citizen of the United States to vote on account of race or color” or membership in a language minority group.12 For each plan, one could measure whether the plan produces majority-minority districts and/or minority opportunity districts comparably to the State’s chosen plan.13 One would then discard any plan that fails to do so.
(iv) Designate as ‘comparable plans’ those plans that have not been discarded.
(v) For each comparable plan, calculate its expected ‘partisan outcome.’ For the sake of illustration, partisan outcome might be defined in
11 For example, there are various commonly accepted measures of compactness, such as Polsby-Popper, Reock, and Convex Hull scores. Multiple measures may be used in conjunction.
12 Section 2 of the Voting Rights Act of 1965, as amended, now codified at 52 U.S.C. § 10301; see also id. § 10303(f)(2).
13 This Court has developed a legal framework for the adjudication of minority vote dilution claims. See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425-426 (2006) (setting forth the elements of a minority vote dilution claim under § 2). The issue here is simply to evaluate whether a potential redistricting plan has comparable properties—such as majority-minority districts or minority opportunity districts—as the State’s chosen plan.
16

terms of the total number of seats that Republicans would have won, if the plan had been in effect in a specific recent election—that is, the number of districts in which the vote count for Republicans would have exceeded the vote count for Democrats.14
(vi) Summarize the distribution of outcomes across all comparable plans. The distribution is typically displayed as a simple bar chart showing the frequency of each outcome (or group of outcomes). The bar chart typically resembles a ‘bell curve.’ Figure 1 illustrates two hypothetical examples.
(vii) Compare the State’s chosen plan to the distribution of outcomes across all comparable plans to determine the extent to which it is an outlier. To be precise, the degree to which a plan is an outlier means how far out on the ‘tail’ of the distribution it lies (e.g., 55th vs. 90th percentile).
In the hypothetical examples in Figure 1, the redistricting plan for State A is well within the typical range of the distribution of comparable plans for the State, while the redistricting plan for State B is clearly an extreme outlier (it is more extreme than 99% of comparable plans for the State—that is, in the 99th percentile).
Based on how extreme the State’s plan is relative to all comparable plans (i.e., where along the continuum of all comparable plans it lies), a court would decide whether or not the plan prima facie reflects excessive and unconstitutional partisanship. It could then consider this finding along with other
14 For any potential district, one can infer the vote total that would have occurred in a recent election by adding up the results for the individual precincts (or voting tabulation districts) within it. (If precincts are partially contained, results can be reasonably prorated or interpolated.)
17

information concerning intent, effect, and justification to reach a judgment concerning the permissibility of the plan.
B. Although it is not feasible to enumerate every possible redistricting plan, computers may be used to calculate the distribution of possible outcomes with good accuracy by examining a large, representative sample of such plans.
In the previous section, the first step in calculating the distribution of possible outcomes involved enumerating every possible redistricting plan for the State. In fact, the number of such redistricting plans is too large to explicitly enumerate each one.
Fortunately, there is no need to enumerate every plan. It is enough to determine the frequency of each bar in the bar graph to good accuracy. With technological advances, it is now possible to do so by drawing a large representative sample of such plans.
As discussed in Section IV below, analogous approaches are widely used in many important settings. For example, the United States Government routinely relies on such methods, including for national defense and homeland security. In the past decade, such methods have finally been applied to the evaluation of redistricting plans.
18

C. This approach for assessing excessiveness can be applied to any suitable individual measure of partisan outcome—or to any combination of measures that a court wishes to consider.
In the description above, partisan outcome was illustrated by a specific metric: the number of seats that a party predictably would have won if the plan had been in effect for a specific recent election.
A proper analysis of the expected partisan outcome of a redistricting plan, however, should not be based solely on results from a single election. Because partisan gerrymandering aims to entrench a party in power even when it loses popular support, it is important to consider the impact of a redistricting plan under multiple electoral circumstances. Specifically, the extreme-outlier analysis can and should be performed for the results from several recent elections, as well as for relevant variations around these results.15 In this way, one can readily see whether a State’s chosen plan is an extreme outlier with respect to relevant circumstances—e.g., whether it provides dramatically greater protection against loss of seats than the vast majority of comparable plans.
In addition to considering expected electoral outcomes, courts may also choose to consider whether the State’s plan is an extreme outlier with respect to other measures of partisan outcome, such as the efficiency gap.
15 For example, one might perform the extreme outlier analysis for the results of two or three elections, as well as for the results obtained by shifting the vote shares in these elections within a relevant range (e.g., 5% in each direction).
19

D. An extreme outlier standard would address justiciability concerns raised by this Court.
Justice Kennedy, in Vieth, 541 U.S. at 307308, expressed concern that the courts had “no basis on which to define clear, manageable and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights.”
The approach outlined above would address that concern, by locating the State’s chosen plan along the continuum of all possible redistricting plans that comparably reflect the State’s declared goals. The process uniquely isolates and quantifies the degree of partisan bias in the State’s plan.
A fundamental difficulty in articulating a judicially manageable standard for determining whether a redistricting plan represents excessive partisanship has been that ‘excessiveness’ implicitly entails a comparison. It requires answering the question: “Excessive compared to what?”
The extreme outlier approach provides a clear, principled, and objective answer: “Excessive among all possible choices that comparably achieve the State’s declared goals.”
The approach further addresses justiciability concerns expressed by this Court as follows:
(i) The approach respects the State’s declared goals, by restricting comparisons to plans that meet these goals comparably to the State’s chosen plan.
(ii) The approach respects the State’s political geography, by considering only plans based on the actual map of the State. Any ‘natural’ packing (e.g., the fact that Democratic voters are often more
20

concentrated in urban areas) is automatically taken into account because the same condition applies to all of the possible plans to which the State’s plan is compared.
(iii) The approach does not seek to ensure or even reward proportionality. Indeed, in view of the uneven partisan geography in the United States, it typically would not produce strict proportionality.
(iv) The approach employs a rational and objective principle (namely, comparison to all other options that achieve the State’s declared objectives). It thus satisfies the test that “law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.” Vieth, 541 U.S. at 279 (plurality opinion).
(v) The approach does not ignore other relevant evidence. The extent to which the plan is an extreme outlier under this standard would be used in conjunction with other relevant evidence (e.g., evidence of legislative process and intent, and any asserted justifications).
(vi) The approach provides capacious room for partisan considerations. A State is not obliged to choose a redistricting plan that corresponds to the middle of the distribution. It can make many political choices, and even put a partisan finger on the scale to some reasonable degree. But, as Vieth confirms, if the balance becomes too extreme (that is, too far into the tail of the distribution), it creates an unconstitutional burden.
Under this approach, the court will still have to decide whether the partisan bias in the plan is so extreme as to impose an unconstitutional burden on voters based upon their political affiliations and
21

beliefs. While mathematics provides no ‘magic’ threshold, the need for a court to draw a line somewhere does not render a standard judicially unmanageable.
In many cases, the answer will already be obvious: a plan located in the 55th percentile (near the center of the distribution) is clearly not excessively partisan; in contrast, a plan located in the 95th percentile is clearly extreme.
In all cases, moreover, the quantification of the degree of partisan bias provided by the extreme outlier standard will provide courts with a straightforward tool for assessing how far a plan goes. Previously, courts have had to rely upon necessarily imprecise verbal descriptions of a plan’s allegedly partisan intent and effects.
Courts have experience drawing constitutional lines based upon mathematical data in the redistricting context. See, e.g., Tennant v. Jefferson County Comm’n, 567 U.S. 758 (2012); Karcher v. Daggett, 462 U.S. 725 (1983) (applying population data to population equality principles in congressional redistricting).
Eventually, this Court may choose to adopt a specific percentile threshold to define presumptively invalid levels of bias—much as it has done for population equality principles for state legislative redistricting. See Brown v. Thomson, 462 U.S. 835, 843-843 (1983) (applying a 10% threshold for presumptive violations). However, there is no need to do so now.
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IV. DETERMINING A DISTRIBUTION OF OUTCOMES FROM A LARGE SAMPLE IS A COMMONLY USED AND RELIABLE COMPUTATIONAL PROCEDURE.
The extreme outlier standard requires comparing a State’s chosen plan to the distribution of outcomes across all comparable plans that meet the State’s declared goals. As described in this section, recent technological advances have finally made it feasible to perform such comparisons.
Indeed, modern computational methods make it possible, in a wide variety of settings, to determine the distribution of outcomes with good accuracy by obtaining and examining a large representative sample. Such methods are routinely used to solve critical national challenges. See Section IV.A, infra.
Further, in the past decade, various scholars have applied these methods to the evaluation of redistricting plans. See Section IV.B, infra.
A. The United States relies on computational analyses of distributions of outcomes for critical national needs, including national defense.
Almost immediately after computers were developed, scientists realized that they could be used to make accurate inferences about distributions of outcomes, even when the number of underlying possibilities is extremely large. In particular, these methods can be used to recognize whether an outcome is an extreme outlier.
23

The concept first arose in 1946 in the context of designing a hydrogen bomb. 16 As the power of modern computers has grown, a variety of computational methods have been developed for drawing a large sample that is representative of the entire universe of outcomes.17
The technology is now routinely applied to many critical real-world situations, including national defense, public safety, finance, and health. A few examples include:
• Design of nuclear weapons, safety of nuclear weapons in storage, and safety of nuclear power plants. As to weapons design, the computational analysis considers the vast number of paths that neutrons may take and assess the risk that ‘criticality’ will not occur. In the latter two cases, the analysis considers the risk that it will occur.18
• Hurricane storm track prediction. Methods called ensemble-based forecasting represent the distribution of possible outcomes in a ‘cone of uncertainty;’ this approach has enabled highly

16 Nicholas Metropolis, The Beginning of the Monte Carlo Method, 15 Los Alamos Sci. 125 (1987), available at http://permalink.lanl.gov/object/tr?what=info:lanlrepo/lareport/LA-UR-88-9067 (last visited Aug. 25, 2017).

17 The initial techniques were called Monte Carlo methods, but many additional methods have been developed. See Christian Robert & George Casella, Monte Carlo Statistical Methods (2004); Sequential Monte Carlo Methods in Practice, (Arnaud Doucet, Nando de Freitas, & Neil Gordon eds., 2001); Andrew Gelman, et al., Bayesian Data Analysis, (3rd ed. 2013).

18 Forrest B. Brown, A Review of Best Practices for

Monte Carlo Criticality Calculations, Los Alamos Report LA-

UR-

09-03136

(2009),

available

at

https://mcnp.lanl.gov/pdf_files/la-ur-09-3136.pdf (last visited

Aug. 25, 2017).

24

accurate assessments of which cities are safe and which are at risk.19
• ‘Stress-testing’ of large banks. In the wake of the 2008 financial crisis, the Federal Reserve instituted its Supervisory Capital Assessment Program, which calculates the distribution of losses that can occur, to identify extreme outliers.20
Additional examples include conflict resolution in air traffic control,21 safety of building structures under earthquake hazards, 22 and crashworthiness of automobiles.23
19 Thomas M. Hamill, et al., NOAA’s Future EnsembleBased Hurricane Forecast Products, 93 Bull. Amer. Meteor. Soc. 209 (2012); Jo Craven McGinty, As Forecasts Go, You Can Bet on Monte Carlo, Wall St. J., Aug. 12, 2016, available at https://www.wsj.com/articles/as-forecasts-go-you-can-bet-onmonte-carlo-1470994203 (last visited Aug. 25, 2017).
20 Randy Heffernan, Fed Uses Monte Carlo Simulation for Stress Test, Risk & Decision Analysis News Blog, May 29, 2009, available at https://blog.palisade.com/2009/05/29/feduses-monte-carlo-simulation-for-stress-test/ (last visited Aug. 25, 2017); Board of Governors of the Federal Reserve System, The Supervisory Capital Assessment Program: Design and Implementation, Apr. 24, 2009, available at https://www.federalreserve.gov/newsevents/press/bcreg/bcreg20 090424a1.pdf (last visited Aug. 25, 2017).
21 Andrea Lecchini Visintini, et al., Monte Carlo Optimization for Conflict Resolution in Air Traffic Control, 7 IEEE Trans. Intell. Transp. Syst. 470 (2006).
22 V. Bolotin, Seismic Risk Assessment for Structures with the Monte Carlo Simulation, 8 Probabilist. Eng. Mech. 169 (1993); Sinan Akkar & Yin Cheng, Application of a MonteCarlo Simulation Approach for the Probabilistic Assessment of Seismic Hazard for Geographically Distributed Portfolios, 45 Earthq. Eng. Struct. D. 525 (2016).
23 Stephen M. Summers & William T. Hollowell, NHTSA’s Crashworthiness Modeling Activities, National
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B. In the past decade, computational methods have been increasingly used to calculate the distribution of outcomes for possible redistricting plans.
For more than 50 years, scholars have recognized the wisdom of evaluating a proposed redistricting plan by comparing it to the universe of other possible plans. In 1967, Drs. James Thoreson and John Liittschwager programmed the University of Iowa’s IBM 7044 digital computer to sample and evaluate 150 redistricting plans. 24 However, the computing power was so limited that their analysis could only be conducted at the level of counties, which is far above the level at which redistricting actually occurs. Various scholars sought to apply the approach in the 1970s and 1980s, but the technology was still inadequate to the task. 25
The use of computers to create redistricting plans became a widespread practice in the 1990s and

Highway Transportation Safety Administration, Paper #251

(2001),

available

at

https://www-

nrd.nhtsa.dot.gov/pdf/esv/esv17/proceed/00178.pdf (last visited

Aug. 25, 2017).

24 James D. Thoreson & John M. Liittschwager, Computers in Behavioral Science: Legislative Districting by Computer Simulation, 12 Syst. Res. Behav. Sci. 237 (1967).

25 Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm Evol. Comput. 78, 79 (2016); Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351, 355-6 (2016); Micah Altman, Karin MacDonald & Michael McDonald, From Crayons to Computers: The Evolution of Computer Use in Redistricting, 23 Soc. Sci. Comput. Rev. 334, 335-7 (2005).

26

was ubiquitous in the 2000s—leading to the proliferation of extreme partisan gerrymandering.26 But, the technology to evaluate redistricting plans lagged behind.
The situation has changed in the last decade, as computer technology has caught up with the problem that it spawned. The computing power available to professionals has increased by more than a million-fold in the past twenty-five years, owing to increases in processor speed and computer architectures that employ many processors in parallel.27
Multiple researchers have employed various computational methods to finally be able to evaluate redistricting plans by comparing them to a large sample of possible plans that respect a State’s declared goals.
The field is maturing rapidly. There are many active scholars, including Dr. Wendy Cho of the University of Illinois;28 Dr. Jonathan Mattingly of
26 Micah Altman, Karin MacDonald & Michael McDonald, From Crayons to Computers: The Evolution of Computer Use in Redistricting, 23 Soc. Sci. Comput. Rev. 334, 335-42 (2005); Micah Altman & Michael McDonald, The Promise and Perils of Computers in Redistricting, 5 Duke J. Const. L. & Pub. Pol’y 69, 78-9 (2010); Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 831 (2015).
27 Peter J. Denning & Ted G. Lewis, Exponential Laws of Computing Growth, 60 Commun. ACM 54, 56 (2017).
28 Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016); Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation
27

Duke University; 29 Drs. Jowei Chen of the University of Michigan, Dr. Jonathan Rodden of Stanford University, and Dr. David Cottrell of Dartmouth College; 30 and Dr. Michael McDonald of Binghamton University. 31 These experts have applied a wide range of computational algorithms and computer hardware to draw large, representative samples (containing hundreds to millions of plans), with consistent results. They have

Approach for Political Redistricting Optimization and Analysis, 30 Swarm Evol. Comput. 78 (2016).

29 Jonathan C. Mattingly & Christy Vaughn,

Redistricting and the Will of the People, arXiv:1410.8796

(arXiv

preprint

2014),

available

at:

https://arxiv.org/pdf/1410.8796.pdf (last visited Aug, 28, 2017);

Sachet Bangia, et al., Redistricting: Drawing the Line,

arXiv:1704.03360 (arXiv preprint 2017), available at:

https://arxiv.org/pdf/1704.03360.pdf (last visited Aug, 28, 2017).

30 Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L. J. 331 (2015); Jowei Chen & David Cottrell, Evaluating partisan gains from Congressional gerrymandering: Using computer simulations to estimate the effect of gerrymandering in the U.S. House, 44 Elect. Stud. 329 (2016); Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L. J. (forthcoming 2017), available at: http://wwwpersonal.umich.edu/~jowei/Political_Geography_Wisconsin_Red istricting.pdf and https://doi.org/10.1089/elj.2017.0455 (last visited Aug, 28, 2017).

31 Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L. J. 312 (2015); Jonathan Krasno, et al., Can Gerrymanders Be Measured? An Examination of Wisconsin’s State Assembly (forthcoming), available at SSRN: https://ssrn.com/abstract=2783144 (last visited Aug, 28, 2017).

28

applied their computer code to redistricting plans in various states—showing that some plans are comfortably within the normal range of plans, while others lie far outside the ordinary distribution of outcomes.
C. The use of computational analysis to compare a State’s plan to the distribution of outcomes for comparable plans is practicable.
In the event of a court challenge to a particular redistricting plan, each party could run its own computational analysis. Computational methods have been published for determining the distribution of possible outcomes.32 The relevant information is readily accessible. 33 So, too are computational resources, including through cloud computing.
Importantly, there is a right answer as to the degree of excessiveness of a State’s chosen plan with respect to any metric, or set of metrics, of partisan outcome.
If the parties reached significantly different results concerning any metric of partisan outcome, they could present expert testimony challenging and
32 Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm Evol. Comput. 78 (2016).
33 Electronic maps of census geography and detailed population data from the latest decennial census are readily available. Precinct-level voting returns are public records. State legislatures often specify their goals before embarking upon redistricting, or at least in a report accompanying their redistricting plans. In some cases, those goals are contained in constitutional or statutory provisions.
29

supporting the premises and methodologies underlying any differences in constructing their various computer programs.
Moreover, the U.S. scientific community would predictably become involved, in the interest of assuring the accuracy and integrity of this quantitative approach. Indeed, the U.S. National Academy of Sciences has recently stated that it would convene scientific experts to assist in helping the scientific community reach consensus on performance measures.34
The process will provide a court with clear information concerning how far out on the distribution (i.e., in what percentile) the State’s chosen plan lies.
V. WISCONSIN’S PLAN IN THIS CASE IS AN EXTREME OUTLIER.
Scholars have evaluated the Wisconsin redistricting plan, enacted in Act 43 in 2010, to determine whether it is an extreme outlier. This section briefly summarizes their findings.
In an article in the Election Law Journal, Dr. Jowei Chen of the University of Michigan compares Wisconsin’s plan to the distribution of expected outcomes for a representative sample of 200 redistricting plans that accomplish Wisconsin’s goals comparably to the State’s own plan. 35 Specifically,
34 See National Academy of Sciences, Statement on Analysis of Voting Redistricting Plans, available at: http://www.nasonline.org/about-nas/leadership/speechesstatements-interviews-mcnutt.html (last visited Aug. 29, 2017).
35 Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43
30

the article shows that each of these plans scores higher than Wisconsin’s chosen plan with respect to (i) compactness, (ii) number of counties preserved intact, and (iii) number of municipalities preserved intact.36
Yet, the number of Republican-leaning districts under the State’s plan is much greater than under each of the 200 comparable plans. These data place Wisconsin’s plan in the 99th percentile of the distribution.
The article also evaluates Wisconsin’s plan with respect to the efficiency gap metric. It similarly shows that the plan has a more extreme efficiency gap than all of the 200 comparable plans.
In a recent technical report, Drs. Jonathan Mattingly and Gregory Herschlag also report an evaluation of Wisconsin’s plan.37 Their methodology differs in its details (with respect to the algorithms for drawing a representative sample, the size of the sample, and the electoral data used), but their conclusion is the same: Wisconsin’s plan is an extreme outlier, lying in the 99th percentile of the distribution of comparable plans.

Assembly Districting Plan, 16 Election L. J. (in press, 2017),

available

at:

http://www-

personal.umich.edu/~jowei/Political_Geography_Wisconsin_Red

istricting.pdf and https://doi.org/10.1089/elj.2017.0455 (last

visited Aug, 28, 2017).

36 The analysis in this paper is based on data from the 2012 election.

37 Jonathan C. Mattingly & Gregory Herschlag, Evaluating Partisan Gerrymandering in Wisconsin, available at: https://services.math.duke.edu/~jonm/Redistricting/ (last visited Aug, 28, 2017).

31

These scholars analyzed a much larger sample, consisting of 19,184 redistricting plans. Figure 2 shows the distribution of expected partisan outcomes based on precinct-level data from the Wisconsin State Assembly election in 2012. Wisconsin’s chosen plan is an extreme outlier, yielding a result that is more extreme than 99.4% of comparable plans—that is, it lies at the 99.4th percentile.
Figure 2. This figure shows results from an evaluation of Wisconsin’s redistricting plan in this case, performed by Drs. Mattingly and Herschlag (see Section V). These scholars generated 19,184 representative plans that are comparable to Wisconsin’s plan enacted under Act 43 in 2010. For each plan, they calculated the number of seats expected to be won by Republicans had the plan been used in the next State Assembly election, in 2012. The bars indicate the frequency of each outcome (with frequencies below 0.1% not shown). The State’s plan, with an outcome of 60 seats, is an extreme outlier: it is more extreme than 99.4% of redistricting plans that accomplish Wisconsin’s declared goals comparably to the State’s plan.
32

The technical report does not only analyze the data for a single electoral outcome. It performs an extreme outlier analysis using data for the Wisconsin State Assembly elections in 2012, 2014 and 2016. For each election, it determines the expected partisan outcome for each of the 19,184 redistricting plans for the election result and for shifts around the result of up to 7.5%.
In each case, Wisconsin’s chosen plan is an extreme outlier: its outcomes are more extreme than at least 99% of the comparable plans for each of 2012, 2014, and 2016.
VI. AN EXTREME OUTLIER STANDARD WOULD PROVIDE GUIDANCE TO THE PARTIES AND BOLSTER CONFIDENCE IN THE COURTS.
As argued in Section III.D, above, an extreme outlier standard would provide the courts with a previously unavailable basis “upon which to define clear, manageable and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights.” Vieth, 541 U.S. at 307-308 (Kennedy, J., concurring in the judgment).
In doing so, an extreme outlier standard would provide practical guidance to States with respect to the degree to which the pursuit of partisan bias in redistricting plans is constitutionally permissible.
Today, it is standard for redistricting software to generate population equality statistics for different plans as they are constructed. States’ drafters use such information to be sure that a draft
33

plan will comply with applicable population variance standards.
Similarly, many States would respond to an extreme outlier standard for partisan bias by evaluating draft redistricting plans while they were under consideration. In this way, these States would ensure that their enacted plans would be shielded from a successful court challenge. Moreover, potential challengers could also run their own evaluations to assess whether a plan would likely withstand challenge under this objective, quantitative standard. In both ways, the adoption of the proposed approach is likely to have the salutary effect of reducing partisan gerrymandering litigation.
Where such litigation was brought, the extreme outlier approach would tend to bolster public confidence in the courts.
In those cases where a court found that a plan was unconstitutionally partisan, the extreme outlier standard would help communicate the legitimacy of the decision and help to shield the court from claims of judicial activism. For example, the public could readily understand the legitimacy of court action striking down an extreme gerrymander that was objectively more partisan than, say, 90% of all possible plans that the State could have chosen and that comparably achieved the State’s declared goals.
In short, an extreme outlier standard, by providing clear, objective and reliable quantitative information about the degree of partisan bias of a restricting plan, would bolster the perceived neutrality and legitimacy of the court’s judgment.
34

CONCLUSION For the reasons set forth above, this Court should endorse an extreme outlier standard, outlined above, as a judicially manageable standard for resolving claims of excessive partisan gerrymandering, and should hold that such claims, in light of that standard, are justiciable.
Respectfully submitted, H. REED WITHERBY
Counsel of Record SMITH DUGGAN BUELL & RUFO LLP 99 Summer Street, Suite 1530 Boston, Massachusetts 02110 617.228.4407 rwitherby@smithduggan.com Counsel for Amicus Curiae
Eric S. Lander
Dated: August 31, 2017
35

 
 No. 16-1161

IN THE
Supreme Court of the United States
>>

>>

BEVERLY R. GILL, et al., v.

Appellants,

WILLIAM WHITFORD, et al.,

Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF FOR AMICI CURIAE AMERICAN JEWISH COMMITTEE, ANTI-DEFAMATION LEAGUE, COUNTY OF SANTA CLARA, DEMOCRACY 21, DEMOS, FRIENDS OF THE EARTH, GOVERNMENT ACCOUNTABILITY PROJECT, NATIONAL COUNCIL OF JEWISH WOMEN, NATURAL RESOURCES DEFENSE COUNCIL, ONEVIRGINIA2021: VIRGINIANS FOR FAIR REDISTRICTING, AND PUBLIC CITIZEN, INC.,
IN SUPPORT OF APPELLEES

September 5, 2017

DAVID LEIT Counsel of Record
NATALIE J. KRANER ERIC WEINER BRANDON FIERRO LOWENSTEIN SANDLER LLP One Lowenstein Drive Roseland, New Jersey 07068 973-597-2500 dleit@lowenstein.com Counsel for Amici Curiae

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ..................................... iii
STATEMENT OF INTEREST .................................... 1
SUMMARY OF ARGUMENT ..................................... 1
ARGUMENT ............................................................... 6
I. Entrenchment Through Severe Partisan Gerrymandering Violates Fundamental American Democratic Principles Of Representativeness And Accountability In Government. .................. 6
A. Our Founders Designed a Government Founded Upon the Consent of the Governed. .................... 7
B. Our Founders Warned that Factions and Partisanship Threaten Representative Democracy. ........................................ 12
C. Contemporary Elected Officials Recognize the Same Risks to Representative Democracy in Modern Partisan Gerrymandering that Our Founders Saw in Excessive Partisanship. ..................................... 14

ii
D. American Citizens, Recognizing the Same Threat as the Founders and Contemporary Elected Officials, Support Limits on Gerrymandering. ............................... 18
E. This Court Has Long Recognized the Centrality of Representativeness and Accountability to American Values. ............................................... 19
II. The Court Must Set Limits On Severe Partisan Gerrymandering To Safeguard Our Democracy. ....................... 21
A. In Light of the Dangers of Entrenchment, this Court Has Recognized That Severe Partisan Gerrymanders Undermine American Democracy. ....................... 22
B. Claims of Severe Partisan Gerrymandering Are Justiciable. ..... 25
III. This Court Should Declare Act 43 Unconstitutional To Ensure That The American Promise Of Representative Democracy Is Fulfilled. ............................. 30
CONCLUSION .......................................................... 36
APPENDIX: LIST OF AMICI CURIAE ................... 1a

iii

TABLE OF AUTHORITIES

CASES

PAGES

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ................................. 2, 6, 25, 33

Baker v. Carr, 369 U.S. 186 (1962).................................................... 27

Benisek v. Lamone, No. 1:13-cv-03233, 2017 WL 3642928 (D. Md. Aug. 24, 2017) ........................................ 22, 29

Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).................................................... 28

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) ........................................ 20

Clinton v. City of New York, 524 U.S. 417 (1998).................................................... 30

Davis v. Bandemer, 478 U.S. 109 (1986).............................................passim

Duncan v. McCall, 139 U.S. 449 (1891).................................................... 20

Fortson v. Dorsey, 379 U.S. 433 (1965).............................................. 22, 27

Gaffney v. Cummings, 412 U.S. 735 (1973).................................................... 27

iv
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).................................... 28
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).................................. 20
Powell v. McCormack, 395 U.S. 486 (1969).............................................. 20, 21
Republican Party of La. v. FEC, 137 S. Ct. 2178 (2017) ................................................. 5
Reynolds v. Sims, 377 U.S. 533 (1964).............................................. 22, 27
Town of Castle Rock, Colo. v. Gonzales, 545 U.S 748 (2005) ..................................................... 28
United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).............................................. 20, 21
United States v. Carolene Products Co., 304 U.S. 144 (1938).................................................... 25
Vieth v. Jubelirer, 541 U.S. 267 (2004).............................................passim
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) ................................................. 5
CONSTITUTIONAL PROVISIONS
U.S. Const. amend XI ...................................................... 20
U.S. Const. art. I, § 2, cl. 1 ........................................... 2, 8

v
U.S. Const. art. IV, § 4 .................................................. 2, 8
OTHER AUTHORITIES
John Adams, Novanglus Papers No. 7 (1774), reprinted in 4 The Works of John Adams 106 (Charles Francis Adams ed., 1851) ..............11
John Adams, Thoughts on Government (1776), in 1 The Founders’ Constitution 108 (Philip B. Kurkland & Ralph Lerner eds., 1987) ..............9
Samuel Adams, The Rights of the Colonists: The Report of the Committee of Correspondence to the Boston Town Meeting (Nov. 20, 1772), reprinted in 7 Old South Leaflets 417 (No. 173) (Burt Franklin 1970)..............................................7
2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (A. Hamilton & R. Livingston) (Jonathan Elliot ed., 2d ed. 1836) ........................................10
The Declaration of Independence (U.S. 1776)....2, 7, 8
The Federalist No. 10 (James Madison) (P.F. Collier & Son ed., 1901) .......................................13
The Federalist No. 37 (James Madison) (P.F. Collier & Son ed., 1901) .......................................10
The Federalist No. 38 (James Madison) (P.F. Collier & Son ed., 1901) .........................................4

vi
GerryRIGGED: Turning Democracy On Its Head, YouTube (Feb. 15, 2017), https://www.youtube.com/watch?v=vD3ZZwzrHQ. .................................................................17
The Harris Poll #80, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013), http://www.theharrispoll.com/politics/Amer icans_Across_Party_Lines_Oppose_Commo n_Gerrymandering_Practices.html ............... 18, 19
Henry M. Hart, Jr., Holmes’ Positivism – An Addendum, 64 Harv. L. Rev. 929 (1951).............27
Jon Husted, Opinion, From Ohio, Lessons in Redistricting Reform, Wash. Post, Feb. 6, 2014. ............................................................... 16, 17
Tom Jensen, Health Care a Mine Field for Republicans; Many Trump Voters in Denial on Russia, http://www.publicpolicypolling.com/pdf/201 7/PPP_Release_National_71817.pdf ...................19
Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for A Third Century, 88 Colum. L. Rev. 1 (1988).........10
Robert G. Natelson, Guarantee Clause, The Heritage Guide to the Constitution, The Heritage Foundation, http://www.heritage.org/constitution#!/artic les/4/essays/128/guarantee-clause (last visited Aug. 27, 2017) ............................................8

vii
President Abraham Lincoln, Gettysburg Address, 1 Documents of American History 429 (H. Commager ed., 9th ed. 1973)..................11
President Barack Obama, State of the Union (Jan. 13, 2016), https://obamawhitehouse.archives.gov/thepress-office/2016/01/12/remarks-presidentbarack-obama-%E2%80%93-prepareddelivery-state-union-address ...............................16
President Ronald Reagan, Remarks at the Republican Governors Club Annual Dinner (Oct. 15, 1987), http://www.presidency.ucsb.edu/ws/?pid=33 55 ..........................................................................15
President George Washington, Farewell Address to the People of the United States (1796), reprinted in S. Doc. No. 106-21, at 14 (2d Sess. 2000).....................................14, 33, 34
Dave Umhoefer, Gerrymandering of Districts Means Voters Don’t Pick Their Representatives, Ribble Says, Milwaukee J. Sentinel (July 23, 2013), http://archive. jsonline.com/blogs/news/216586311.html. ..........17
Keith E. Whittington, The Place of Congress in the Constitutional Order, 40 Harv. J.L. & Pub. Pol’y 573 (2017) ................................. 9, 10, 11

1
STATEMENT OF INTEREST1
Amici Curiae are organizations and governmental entities that pursue public policy goals through the American political system. Because they work extensively in the political system, amici rely upon fair elections to ensure that elected policy makers represent and are meaningfully accountable to their constituents. Accordingly, they are particularly concerned about legislative entrenchment, that is, the drawing of district lines to ensure that one party will control a particular legislative body for as long as possible. Amici submit this brief to offer a thorough analysis of how severe partisan gerrymandering, as occurred in Wisconsin, contravenes fundamental, long-standing American democratic values and requires a strong judicial response to ensure that American government will continue to operate by the consent of the people.
A full list and description of amici is attached as an Appendix to this brief.
SUMMARY OF ARGUMENT
On December 16, 1773, the Sons of Liberty dumped British tea into Boston Harbor to protest the British Parliament’s imposition of the Tea Act of
1 Letters from the parties consenting generally to the filing of briefs by amici curiae are on file with the Court. Pursuant to Supreme Court Rule 37.6, we note that no part of this brief was written by counsel for any party, and no person or entity other than amici and their counsel made any monetary contribution to its preparation or submission.

2
1773, which the British Parliament had imposed without representation from the American colonies. Two and a half years later, Thomas Jefferson cited the right of the people to be fairly represented in their government (or, more precisely, the derogation of that right by the British) in the United States Declaration of Independence as a casus belli warranting revolution: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” The Declaration of Independence para. 2 (U.S. 1776).
By 1787, the principle of government accountable to the People was enshrined in multiple clauses of the United States Constitution:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . .
U.S. Const. art. I, § 2, cl. 1.
The United States shall guarantee to every State in this Union a Republican Form of Government . . . .
U.S. Const. art. IV, § 4.
Today, 230 years later, this bedrock of American democracy is imperiled. The threats of severe partisanship, forewarned by George Washington, John Adams, James Madison, and others, have manifested as legislative entrenchment obtained through partisan gerrymandering, which this Court has defined as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State

3

Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015).

Incumbent lawmakers use increasingly sophisticated techniques to redraw electoral districts to entrench their power. Using map-drawing software, highly detailed data about voting patterns, and sophisticated statistical analyses and tools, incumbents “crack” and “pack” electoral districts to ensure continued control over legislatures under virtually any conceivable voting pattern. Voters no longer choose their representatives; maps crafted by party leaders and their consultants choose representatives, depriving the people of a meaningful voice in government.

The core issue before the Court is the same as at

the Boston Tea Party: the right of American citizens

to be governed by representatives of their choosing,

rather than by an entrenched ruling class. The

modern entrenched ruling class no longer holds

power derived from a monarchy or aristocracy, but

through the careful manipulation of election

districts. Contemporary elected officials, and the vast

majority of Americans, irrespective of party

affiliation or political philosophy, share this concern.

They

overwhelmingly

oppose

partisan

gerrymandering because it creates a government

that operates without the consent of the governed

and is, therefore, antithetical to the American values

upon which our nation was founded.

In this brief, amici first examine the origins and meaning of the fundamental American democratic values of representation and accountability, as well

4
as the current views of American political leaders and citizens about partisan gerrymandering.
Second, amici demonstrate that Wisconsin’s Act 43 is a severely partisan gerrymander. If allowed to stand, it will function exactly as designed: it will entrench Republican control of the Wisconsin legislature, for at least ten years, by purposefully diluting the voting strength of Democratic voters statewide. It is undisputed that incumbent lawmakers in Wisconsin adopted Act 43 for the express purpose of redrawing district maps that would ensure that, under any likely voting scenario, their political party would have a durable majority of legislative seats for the foreseeable future.
This Court has previously recognized the “incompatibility of severe partisan gerrymanders with democratic principles.” Vieth v. Jubelirer, 541 U.S. 267, 292 (2004). If severe partisan gerrymandering, such as that which occurred in Wisconsin, is permitted to continue, the outcomes of elections will not reflect the will of the “great body of society” (The Federalist No. 38, at 206 (James Madison) (P.F. Collier & Son ed., 1901)), but rather the will of the partisan incumbents who draw the maps. Governmental authority will no longer be derived from the people, but from “an inconsiderable proportion or a favored class of it.” Id.
Finally, amici urge this Court to recognize that it is uniquely positioned as the only American institution that can ensure that our elections are conducted in a manner consistent with our core democratic principles. Wisconsin’s Act 43 is not only incompatible with the fundamental democratic

5
principles of fair representation and accountability that spurred the American Revolution and remain at the very core of American values, but also meets the standard for an equal protection violation endorsed by the plurality in Davis v. Bandemer, 478 U.S. 109 (1986). Act 43 creates an “electoral system [that] substantially disadvantages certain voters in their opportunity to influence the political process effectively,” and the existence of such disadvantaging is “supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133.
Severe partisan gerrymanders cannot be resolved by the democratic political process, because the very nature of the problem is that severe partisan gerrymanders subvert the democratic political process. Without this Court’s intervention and setting of limits on severe partisan gerrymandering, our system will devolve into precisely what our Founders declared our independence from: government administered by an entrenched ruling class, rather than by the consent of the people. Amici urge this Court to affirm the decision below and find Wisconsin’s Act 43 to be an unconstitutionally severe partisan gerrymander.

6
ARGUMENT
I. Entrenchment Through Severe Partisan Gerrymandering Violates Fundamental American Democratic Principles Of Representativeness And Accountability In Government.
The importance of representative democracy is as deeply ingrained in the values of the Founders as in the views of modern leaders and citizens. Our Founders’ guidance is unambiguously stated in the Declaration of Independence, the Constitution, and the Federalist Papers. The core values set forth therein continue to be shared today by an overwhelming majority of Americans, including both citizens and elected leaders. This Court has also recognized what the Founders knew, and the modern day electorate know, to be true: that severe partisan gerrymanders such as Wisconsin’s Act 43 “entrench a rival party in power” and, in doing so, violate fundamental principles of American democracy. Ariz. State Legislature, 135 S. Ct. at 2658.
Severe partisan gerrymandering undermines faith in America’s most basic civic principle: the right of the people to elect their representatives, who remain accountable to the people. The frustration of American citizens today echoes that of American colonists prior to the Revolution. As in the colonial era, public outrage is building as citizens realize that their government is increasingly controlled by an entrenched ruling class, unrepresentative of, and unaccountable to, the people they govern.

7
A. Our Founders Designed a Government Founded Upon the Consent of the Governed.
The origins of the United States of America lie in opposition to a government that did not represent the citizenry. Americans objected to acts of the British Parliament such as the Currency Act of 1764, the Sugar Act of 1764, the Stamp Act of 1765, and the Tea Act of 1773 (the trigger of the Boston Tea Party). In each case, the core of the protest was the lack of American representation in the Parliament that passed these laws. Samuel Adams explained that this protest was an assertion of the people’s natural and constitutional rights to adequate representation in their government. See generally Samuel Adams, The Rights of the Colonists: The Report of the Committee of Correspondence to the Boston Town Meeting (Nov. 20, 1772), reprinted in 7 Old South Leaflets 417 (No. 173) (Burt Franklin 1970).
When American patriots declared independence from Britain in 1776, they made it clear that the British government lacked legitimacy in America because the members of Parliament were not elected by, and did not represent, the people they governed. The Declaration of Independence para. 2 (listing Great Britain’s “history of repeated injuries and usurpations,” including interfering with the Colonists’ right to representation in government and “imposing Taxes on [them] without [their] Consent”). The Declaration of Independence further cited lack of representation as grounds for revolution: “Governments are instituted among Men, deriving their just powers from the consent of the governed.”

8
Id. The core idea animating the founding of this new nation was to establish a government whose legitimacy would be derived from the consent of the governed, rather than from the power of those who govern.
Our Founders created a new government in which representatives would be chosen “by the People.” U.S. Const. art. I, § 2, cl. 1. They adopted a Constitution that guaranteed every state “a Republican Form of Government.” U.S. Const. art. IV, § 4. The Heritage Foundation explains the importance and meaning of the Guarantee Clause as follows:
Participants in the Constitutional debate of 1787–1788 expressed varying views over exactly what constituted the “Republican Form” of government. However, there was a consensus as to three criteria of republicanism, the lack of any of which would render a government un-republican.
The first of these criteria was popular rule. The Founders believed that for government to be republican, political decisions had to be made by a majority (or in some cases, a plurality) of voting citizens. The citizenry might act either directly or through elected representatives. Either way, republican government was government accountable to the citizenry.
Robert G. Natelson, Guarantee Clause, The Heritage Guide to the Constitution, The Heritage Foundation, http://www.heritage.org/constitution#!/articles/4/essa

9
ys/128/guarantee-clause (last visited Aug. 27, 2017) (italics added).
Embodied in this first criterion of “popular rule” are two core principles of a republican form of government: representativeness and accountability. Our representatives must fairly reflect the democratic vote of the citizens, and once those representatives are in office, they must be accountable to the citizenry. The adoption of these core principles was the critical difference between our new form of American government and the old British one. The British system of government relied on social hierarchy. The ruling class and the people were represented separately. Keith E. Whittington, The Place of Congress in the Constitutional Order, 40 Harv. J.L. & Pub. Pol’y 573, 576 (2017). Our government, by contrast, was designed to represent the interests of the people, not preserve the status of a ruling class. See John Adams, Thoughts on Government (1776), in 1 The Founders’ Constitution 108 (Philip B. Kurkland & Ralph Lerner eds., 1987) (a representative assembly “should think, feel, reason, and act like” the “people at large”).
“Representativeness” does not necessarily mean that elected representatives must proportionally represent the political make-up of the citizens, but that the citizens must be free to elect their representatives without having their choices controlled by a ruling class. Alexander Hamilton and Robert Livingston explained the importance and meaning of “representation” during the New York convention considering adoption of the Constitution:

10
[T]he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.
2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 257 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot’s Debates] (A. Hamilton).
The people are the best judges [of] who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.
Id. at 292-93 (R. Livingston).
Our Founders also understood that representativeness in government is intertwined with accountability.2 In Federalist 37, James Madison explained: “the genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people.” The Federalist No. 37, at 192 (James Madison) (P.F. Collier & Son ed., 1901) (italics added). A representative government “is futile if legislators are
2 Contemporary academics agree that a republican government is one in which the people control their rulers. See, e.g., Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for A Third Century, 88 Colum. L. Rev. 1, 23 (1988).

11
not responsive to the constituents that they represent.” Whittington, supra, at 580. Citizens must have not only the right to elect their representatives, but a meaningful ability to remove them in future elections. Indeed, “[t]he crucial function of the people in a democracy is not to make policy but to determine to whom ‘the reins of government should be handed.’” Id. at 581 (quotation omitted).3
3 The Founders’ promise of representative and accountable democratic government was not immediately or fully realized in the early days of the republic. Since its founding, America has strived to close the gap between its founding ideals and practical reality. Our Founders did not always live or govern in ways that lived up to the ideals (such as equality, representation, and accountability) they espoused. That is why America is, in the words of John Adams, a “government of laws, and not of men.” John Adams, Novanglus Papers No. 7 (1774), reprinted in 4 The Works of John Adams 106 (Charles Francis Adams ed., 1851). As a nation, we are guided by our Founders’ commitment to their ideals. While they may have sometimes failed in their lifetimes to fully realize those ideals, it is our task “to be dedicated here to the unfinished work which they . . . so nobly advanced.” President Abraham Lincoln, Gettysburg Address, 1 Documents of American History 429 (H. Commager ed., 9th ed. 1973). America (and this Court) has, for example, grappled over the centuries with how to make America live up to the ideal that “all men are created equal.” The struggle to bring the ideals of representativeness and accountability into practical reality has been advanced both through legislative action (e.g., the Seventeenth Amendment, putting the election of Senators directly in the hands of the people; and the Thirteenth, Fourteenth,

12

If elected representatives can dictate election outcomes by drawing maps and electoral districts that “place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation,” J.S. App. 109a-110a, representativeness and accountability are lost. A government that derives its just powers from the consent of the governed requires that the government be representative of, and accountable to, the people.

B. Our Founders Warned that Factions

and

Partisanship

Threaten

Representative Democracy.

Our Founders understood that representativeness and accountability could not be taken for granted, and foresaw that a representative democracy contained within it the seeds of its own potential destruction. The liberty provided by free association and democracy naturally leads like-minded citizens to band together to pursue their shared values. Collective political action benefits democracy, but factionalism becomes detrimental when the power of a particular faction to pursue its parochial interests undermines the people’s right to fair and meaningful representation.
James Madison warned of the dangers of “faction”—“a majority or a minority of the whole, who

Fifteenth, and Nineteenth Amendments, extending rights to previously disenfranchised Americans) and through this Court (e.g., the “one person, one vote” cases). This case represents another step in that continual quest.

13
are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”—but believed that our Constitution would help restrain such dangers. Federalist No. 10, at 45 (James Madison) (P.F. Collier & Son ed., 1901). In fact, Madison regarded this as one of the greatest virtues of the Constitution: “Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” Id. at 44. While Madison understood that the root causes of factionalism could not be eradicated (and indeed, should not, since such causes were the natural and unavoidable byproducts of liberty, freedom of thought, and freedom of association), Madison also understood that excess factionalism should be restrained by republican government: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” Id. As he left office, George Washington likewise warned future generations that, left unchecked, political parties could
serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted

14
and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.
President George Washington, Farewell Address to the People of the United States (1796), reprinted in S. Doc. No. 106-21, at 14 (2d Sess. 2000) [hereinafter Washington’s Farewell Address], https://www.gpo.gov/fdsys/pkg/GPO-CDOC-106sdoc 21/pdf/GPO-CDOC-106sdoc21.pdf.
Washington also recognized that, while a single faction’s domination might not be permanent, the “spirit of revenge” could lead to alternating dominance of factions, and eventually to a “frightful despotism.” Id. at 16-17.
C. Contemporary Elected Officials Recognize the Same Risks to Representative Democracy in Modern Partisan Gerrymandering that Our Founders Saw in Excessive Partisanship.
American leaders across the political spectrum agree that modern gerrymandering can result in entrenchment that critically threatens our core values of representation and accountability in government. Both major parties have drawn partisan gerrymanders when it suited their immediate interests. The political pressure to win individual elections means that parties in power exploit the advantages of partisan gerrymandering when it suits their near-term goals. But when distanced from the intensity of any immediate election, leaders from both parties have recognized that partisan

15
gerrymandering is a pernicious danger that must be addressed for the sake of our democracy.
In 1987, President Ronald Reagan addressed the Republican Governors Club and emphasized the fundamental unfairness of severe partisan gerrymandering by Democrats in California. The results of the California state legislature elections in 1984, as described by President Reagan, were remarkably similar to what happened in Wisconsin in this case:
In California, one of the worst cases of gerrymandering in the country, Republicans received a majority of votes in congressional races, but the Democrats won 60 percent more races. The fact is gerrymandering has become a national scandal. The Democratic-controlled State legislatures have so rigged the electoral process that the will of the people cannot be heard. They vote Republican but elect Democrats.
President Ronald Reagan, Remarks at the Republican Governors Club Annual Dinner (Oct. 15, 1987), http://www.presidency.ucsb.edu/ws/?pid=3355.
President Reagan went on to describe the contorted maps that had been drawn to ensure Democratic “safe seats,” concluding that the entire process was an affront to American values: “But it isn’t just the district lines the Democrats have bent out of shape: it’s the American values of fair play and decency.” Id.
President Barack Obama made precisely the same point in his State of the Union Address in 2016:

16
[I]f we want a better politics, it’s not enough just to change a congressman or change a senator or even change a President. We have to change the system to reflect our better selves. I think we’ve got to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around.
President Barack Obama, State of the Union (Jan. 13, 2016), https://obamawhitehouse.archives.gov/thepress-office/2016/01/12/remarks-president-barackobama-%E2%80%93-prepared-delivery-state-unionaddress.
In 2014, Jon Husted, the Secretary of State of Ohio, published an op-ed in the Washington Post, writing that partisan gerrymandering was fundamentally damaging our democracy: “[g]errymandering is the fractured foundation on which our legislative branch of government is built.” Jon Husted, Opinion, From Ohio, Lessons in Redistricting Reform, Wash. Post, Feb. 6, 2014. Secretary Husted, a self-described “conservative Republican,” acknowledged that gerrymandering in Ohio had favored his own party, such that, while the statewide vote in Ohio in 2012 had gone to President Obama, Republicans still maintained outsized advantages in all of the races affected by gerrymandering, controlling the Ohio House 60 to 39, the Ohio Senate 23 to 10, and the Ohio delegation to the U.S. House 12 to 4. Id. The voters of Ohio no longer could control who represented them, because “the line-drawing process can all but guarantee the outcome of general elections.” Id.

17
United States Senator Tim Kaine has similarly observed that, because “gerrymandering . . . produces a maximum number of non-competitive seats . . . [if] somebody is in a non-competitive seat, they don’t have to be that responsive to their constituents.” GerryRIGGED: Turning Democracy On Its Head, YouTube (Feb. 15, 2017), https://www.youtube.com/ watch?v=vD3ZZ-wzrHQ. This specific intent to maximize partisan advantage by reducing the consequences of unresponsiveness to constituents is fundamentally incompatible with the fundamental democratic value of accountability.
Secretary Husted’s and Senator Kaine’s descriptions of gerrymandering echo the statements of those who controlled the line-drawing process in Wisconsin: “The maps we pass will determine who’s here 10 years from now.” J.S. App. 28a (internal quotations and marks omitted). Partisan gerrymandering removes the election of representatives from the hands of voters and places it in the hands of map-drawers. It is the same observation made by former Republican Congressman Reid Ribble of Wisconsin: “We’re at a place now in this country where voters are not picking their representatives anymore. Representatives, through the gerrymandering process and redistricting, are picking their voters.” Dave Umhoefer, Gerrymandering of Districts Means Voters Don’t Pick Their Representatives, Ribble Says,
Milwaukee J. Sentinel (July 23, 2013), http://archive. jsonline.com/blogs/news/216586311.html.

18
D. American Citizens, Recognizing the Same Threat as the Founders and Contemporary Elected Officials, Support Limits on Gerrymandering.
The American people also understand that severe partisan gerrymandering undermines our democracy, disenfranchises the people, and allows an entrenched ruling class to consolidate its own power. In a recent nationwide Harris Poll, “majorities across party lines affirm[ed] a desire to see the power to influence district boundaries out of the hands of those with a vested interest in the results.” The Harris Poll #80, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013), http://www.theharrispoll.com/politics/Americans_Acr oss_Party_Lines_Oppose_Common_Gerrymandering _Practices.html. The poll found that “over seven in ten Americans believe (71% - 48% strongly so) that those who stand to benefit from redrawing congressional districts should not have a say in how they are redrawn.” Id.
American opposition to political gerrymandering transcends party affiliation or political ideology. The Harris Poll showed “comparable views when compared by both political affiliation (74% Republicans, 73% Democrats, 71% independents) and underlying political philosophy (69% Conservative, 71% Moderate, 73% Liberal).” Id. Less than half of U.S. adults (45%) “believe their politics are fairly represented by the congressional representative from their district.” Id. On the other hand, far more (71%) “believe that dividing up congressional districts is a way for state politicians to influence national politics” and 64% believe “redrawing districts is often

19
used to take power away from American voters.” Id. Americans unite in rejecting severe partisan gerrymandering because, regardless of party allegiance, American citizens share the core values about representation and accountability in government that shaped our nation. Americans understand that modern gerrymandering practices subvert those values.
More recent national polling confirms that voters remain united in their rejection of political gerrymandering. Public Policy Polling conducted a nationwide survey in July 2017 and found:
Only 16% of voters think politicians generally draw lines for Congressional and Legislative districts that are fair, [compared] to 60% who think they're usually unfair. Just 23% of Republicans, and 13% of Democrats and independents think that district lines are currently being drawn in a way that's generally fair.
Tom Jensen, Health Care a Mine Field for Republicans; Many Trump Voters in Denial on Russia, Public Policy Polling (Jul. 18, 2017), http://www.publicpolicypolling.com/pdf/2017/PPP_Rel ease_National_71817.pdf.
E. This Court Has Long Recognized the Centrality of Representativeness and Accountability to American Values.
Almost 200 years ago, Chief Justice Marshall summarized the essence of American government: “The government of the Union, then, . . . is, emphatically, and truly, a government of the people.

20
In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819); see also Duncan v. McCall, 139 U.S. 449, 461 (1891) (noting that a “distinguishing feature” of the republican guarantee is “the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 457 (1793) (defining a republican form of government as “one constructed on [the] principle, that the Supreme Power resides in the body of the people”), superseded in part by U.S. Const. amend XI.
More recently, the Court, while examining the Qualifications Clause, determined that a “fundamental principle of our representative democracy . . . [is] ‘that the people should choose whom they please to govern them.’” Powell v. McCormack, 395 U.S. 486, 547 (1969) (quoting Elliot's Debates, supra, 257 (A. Hamilton)). In reaching this conclusion, the Court agreed with John Wilkes’ address to the Parliament in 18th-century England: “That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.” Id. at 534, n. 65 (quoting 16 Parl. Hist. Eng. 589–90 (1769)).
The Court further elaborated on its findings from Powell in United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). There, the Court

21
examined the history of the British experience, the Framers’ intent, Constitutional text, and “the basic principles of our democratic system,” to conclude that “an aspect of sovereignty is the right of the people to vote for whom they wish” and that “the right to choose representatives belongs not to the States, but to the people.” Id. at 798, 820-21. The Court explained that the “Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people.” Id. at 821; see also id. at 791 (“[W]e recognized [in Powell] the critical postulate that sovereignty is vested in the people” and that they have the right to choose their representatives “freely[.]”).
II. The Court Must Set Limits On Severe Partisan Gerrymandering To Safeguard Our Democracy.
There is broad agreement—among the Justices of this Court, in the writings of our Founders, in public opinion, and in the views of politicians of both major parties—that severe partisan gerrymanders are incompatible with core American democratic values. As demonstrated below, the intent and effect of Act 43 is to undermine the ability of citizens to elect accountable representatives. It therefore endangers the American concept of governmental power derived from the consent of the governed.4 Indeed, the very
4 While Act 43 favored Republicans, it would be equally objectionable no matter which political party it

22
nature of the problem makes it impossible to solve through the political process. It therefore falls to this Court to meet its fundamental responsibility to safeguard American democratic principles from those who would exploit the system to undermine it.
A. In Light of the Dangers of Entrenchment, this Court Has Recognized That Severe Partisan Gerrymanders Undermine American Democracy.
This Court has long recognized that “the basic aim of legislative apportionment” is “the achieving of fair and effective representation for all citizens.” Reynolds v. Sims, 377 U.S. 533, 565-66 (1964). In Fortson v. Dorsey, for instance, this Court observed that either racial or political considerations in redistricting are subject to judicial review. 379 U.S. 433, 439 (1965). A redistricting scheme may not “comport with the dictates of the Equal Protection Clause” if it “would operate to minimize or cancel out the voting strength of racial or political elements of
entrenched in the legislature. In fact, a highly analogous case, in which Democrats, rather than Republicans, are alleged to have engaged in partisan gerrymandering, was recently considered in the Fourth Circuit. See Benisek v. Lamone, No. 1:13-cv-03233, 2017 WL 3642928, at *15 (D. Md. Aug. 24, 2017) (“The record demonstrates, without any serious contrary evidence, that the Maryland Democrats who were responsible for redrawing congressional districts in 2011 specifically intended to dilute the votes of Republicans in the Sixth District and in fact did so.” (Niemeyer, J., dissenting).

23
the voting population.” Id. In Davis v. Bandemer, the Court acknowledged the justiciability of partisan gerrymanders and the Court’s own role in adjudicating the claim that “each political group in a State should have the same chance to elect representatives of its choice as any other political group.” 478 U.S. at 124. A plurality concluded, however, that the Indiana Democrats challenging the gerrymander had failed to prove an Equal Protection violation. Id. at 136.
Thirteen years ago, in Vieth v. Jubelirer, 541 U.S. 267 (2004), a majority of the Court declined to disturb the justiciability holding of Bandemer. In a controlling concurrence, Justice Kennedy held that, despite the justiciability of their claims, the appellants could not prevail because “in the case before us, we have no standard by which to measure the burden appellants claim has been imposed on their representational rights.” Id. at 313. Yet all of the Justices reaffirmed that “severe partisan gerrymanders” (a phrase used by Justice Breyer in his dissent and adopted by Justice Scalia, writing for the plurality) threaten basic democratic values.
In his dissent, Justice Stevens recognized that, while the various opinions in Vieth presented real points of disagreement, “the areas of agreement set forth in the separate opinions are of far greater significance.” Id. at 317. Justice Stevens highlighted the fact that
[the] danger of a partisan gerrymander is that the representative will perceive that the people who put her in power are those who drew the map rather than those who cast

24
ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all. The problem, simply put, is that the will of the cartographers rather than the will of the people will govern.
Id. at 331.
Writing for the plurality, Justice Scalia explicitly agreed with Justice Stevens, decrying “the incompatibility of severe partisan gerrymanders with democratic principles.” Id. at 292.
Justice Breyer, reasoning from fundamental principles of American democracy, wrote:
“We the People,” who “ordain[ed] and establish[ed]” the American Constitution, sought to create and to protect a workable form of government that is in its “‘principles, structure, and whole mass,’” basically democratic. In a modern Nation of close to 300 million people, the workable democracy that the Constitution foresees must mean more than a guaranteed opportunity to elect legislators representing equally populous electoral districts. There must also be a method for transforming the will of the majority into effective government.
Id. at 356 (Breyer, J., dissenting) (internal citations omitted).
In his concurrence, Justice Kennedy expressed deep concern about gerrymanders that apply political classifications “in an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307. Justice Kennedy remained optimistic that the

25
Court would find a workable way to address such claims because “[a]llegations of unconstitutional bias in apportionment are most serious claims, for we have long believed that ‘the right to vote’ is one of ‘those political processes ordinarily to be relied upon to protect minorities.’” Id. at 311-12 (citing United States v. Carolene Products Co., 304 U.S. 144, 153, n.4 (1938)).
Most recently, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court recognized the Founders’ intent and the need to “safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate.” 135 S. Ct. at 2672. The Court took note of the conflict of interest “inherent when ‘legislators dra[w] district lines that they ultimately have to run in.’” Id. (quotation omitted). Legislators cannot claim to be serving any legitimate state interest when their conflict of interest causes them to undermine the representativeness and accountability that the Constitution was designed to ensure.
B. Claims of Severe Partisan Gerrymandering Are Justiciable.
Even though this Court has consistently agreed that a “severe partisan gerrymander” is incompatible with core American democratic principles, Appellants urge that the Court do nothing to protect those principles, because, they contend, it is too difficult to craft a sufficiently precise standard by which all future partisan gerrymanders may be judged. See Appellants’ Br. at 41.

26
Amici do not share Appellants’ pessimism. Amici reject the idea that the Court should declare all partisan gerrymanders to be nonjusticiable political questions simply because of the difficulty of articulating a standard that would easily resolve all future cases. Judicially manageable standards do exist, and, in fact, were articulated by the District Court, which drew from and built upon this Court’s precedents.
In its plurality opinion in Bandemer, this Court articulated the following standard by which partisan gerrymanders should be adjudicated: the “plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Bandemer, 478 U.S. at 127. Vieth questioned the workability of the Bandemer standard, but did not disturb the central Bandemer holding that the law must protect American citizens’ right to fair and effective representation from being sabotaged by partisan machinations of the party currently in power. The District Court in this case did what our system expects district courts to do: it followed explicit precedent where it could, and where existing precedent provided broad principles rather than explicit guidance, it applied its best judgment in accordance with those principles. The District Court articulated the standard for adjudicating a partisan gerrymander as follows:
[T]he First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of

27
individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
J.S. App. 109a-110a. The District Court then proceeded, in exhaustive detail, to analyze why the elements of the test had been met.
This process—the District Court’s expanding upon and developing the teachings and standards of this Court with additional detail and judgment—is entirely consistent with the way legal tests and standards develop through constitutional adjudication. As Professor Hart explained in his analysis of Justice Holmes, “the mechanisms for orderly change” constitute the “very heart of the process by which justice can be achieved through law.” Henry M. Hart, Jr., Holmes’ Positivism – An Addendum, 64 Harv. L. Rev. 929, 937 (1951). For example, in a series of cases directly relevant to this case, this Court proceeded step by step, first holding only that questions about the redistricting of state legislative districts were justiciable, and not political questions, see Baker v. Carr, 369 U.S. 186, 232 (1962). Standards for adjudicating such cases began to emerge in Reynolds v. Sims, 377 U.S. 533 (1964), and have continued to be refined by cases such as Fortson v. Dorsey, 379 U.S. 433 (1965), Gaffney v. Cummings, 412 U.S. 735 (1973), and others.
The Court has never held that legal standards must be so exact as to permit mechanical application by the lower courts. The Court has long relied on the ability of the lower courts to exercise good judgment and discretion to apply the guidelines and standards

28
set forth by this Court. For example, in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), the Court set forth a test to determine whether an individual has a “property interest in a [government] benefit” protected by the Due Process clause. The Court did not provide the lower courts with a standard that would permit mechanistic application, but with well-defined guiding principles: “a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of [the benefit]. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577. This standard, like other judicial guidelines, has proven workable, durable, and predictable in the hands of able jurists. See, e.g., Town of Castle Rock, Colo. v. Gonzales, 545 U.S 748 (2005) (Scalia, J.) (highlighting various situations in which specific implementation of guidelines set forth by this Court is entrusted to the discretion of the lower courts and other government officials).
Appellants nevertheless insist that the supposed failure, in the years since Bandemer, to articulate a judicial standard for evaluating the lawfulness of partisan gerrymanders that meets a standard of precision this Court has not required in other areas of the law, should force the Court to conclude that no meaningful standard can possibly exist. This is no reason for the Court to abdicate its primary responsibility to “say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). As Justice Kennedy emphasized in his concurrence in Vieth, “by the timeline of the law 18 years is rather a short period” and the fact that the lower courts did

29
not discover a better standard during that time only reflects the fact that “the lower courts could do no more than follow Davis v. Bandemer.” Vieth, 541 U.S. at 312.
Indeed, even as this case is pending, Judge Niemeyer, in his dissent in the Benisek v. Lamone case, observed:
[A] categorical rule that would abandon efforts at judicial review surely cannot be accepted lest it lead to unacceptable results. . . . [A] controlling party[] could theoretically create . . . districts by assigning to each district [a certain percentage of individual citizens by political affiliation], regardless of their geographical location. . . . Such a pointillistic map would, of course, be an absurd warping of the concept of representation, resulting in the very ‘tyranny of the majority’ feared by the Founders. Yet, such an extreme possibility would be open to the most politically ambitious were courts categorically to abandon all judicial review of political gerrymandering.
Benisek, 2017 WL 3642928, at *16 (Niemeyer, J., dissenting).
The District Court in this case articulated a standard for adjudicating a partisan gerrymander entirely consistent with this Court’s precedent, expanded upon that precedent in a manner wholly consistent with typical jurisprudential practices, and, as more fully set forth below, applied that standard carefully and thoroughly to the facts of the case. If

30
this Court finds that the District Court applied an erroneous standard, the remedy ought to be to correct the standard and remand the case to the District Court for further proceedings consistent with the corrected standard. The Court need not take an all-or-nothing approach in which it must choose between demanding an unrealistic level of “precision” or concluding that no meaningful standard can possibly exist. A more measured approach is readily available, and would significantly advance the law by establishing where at least some of the limits to partisan gerrymandering lie. “Abdication of responsibility is not part of the constitutional design.” Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).
III. This Court Should Declare Act 43 Unconstitutional To Ensure That The American Promise Of Representative Democracy Is Fulfilled.
The record before the Court in this case makes clear that Act 43 presents exactly the type of redistricting scheme that violates fundamental American democratic norms, the First Amendment, and the Equal Protection clause.
The drafters of Act 43 used modern technologies and techniques, which this Court has never before considered, specifically to “place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation.” J.S. App. 109a-110a. Appellants cannot justify Act 43 “on other, legitimate legislative grounds.” J.S. App. 110a. Republican lawmakers carefully crafted Act 43 for the purpose of creating a durable partisan advantage

31
in converting the votes of even a minority of citizens into a majority of legislative seats. Their effort was resoundingly successful, resulting in a Wisconsin legislature that was neither representative of the votes of the citizens, nor accountable to them.
 Intent of Act 43: Even the dissent in the District Court agreed that the evidence of partisan intent was clear: “It is almost beyond question that the Republican staff members who drew the Act 43 maps intended to benefit Republican candidates.” J.S. App. 237a (Griesbach, J., dissenting). Appellants do not contest this conclusion.
 Effect of Act 43: This Court, in Bandemer, held that the plaintiff could not rely on a single election to prove illegality. See 478 U.S. at 135. In Wisconsin, however, actual election results have repeatedly shown that Act 43 achieved the desired effect of enabling Republican lawmakers to maintain a substantial majority of Assembly seats, regardless of ballot returns. In 2012, Republicans in Wisconsin received 48.6% of the two-party statewide vote share for Assembly candidates, yet won 61% of the Assembly seats. In 2014, Republicans received 52% of the two-party statewide vote share, yet won 64% of the Assembly seats. J.S. App. 30a31a. These results were neither the inevitable result of political geography nor a fluke of a single isolated election. They were the result of incumbent lawmakers spending significant time, effort, and money hiring data scientists,

32

cartographers, and election experts, and vetting multiple maps until they found the ones that would ensure these results. J.S. App. 124a-140a.

 Durability of Act 43: Act 43’s effects will

extend well beyond the 2012 and 2014

elections. The District Court relied on evidence

stating that “[b]arring an ‘unprecedented

political earthquake,’ Democrats would be at

an electoral disadvantage for the duration of

Act 43.” J.S. App. 164a. Tad Ottman, a staff

member for the Wisconsin Senate Majority

Leader, in his presentation to the Wisconsin

Republican caucus, noted that “[t]he maps we

pass will determine who’s here 10 years from

now,” and “[w]e have an opportunity and an

obligation to draw these maps that

Republicans haven’t had in decades.” J.S.

App. 28a. Professor Gaddie, whom the

incumbent lawmakers retained as an

independent “advisor on the appropriate racial

and/or

political

make-up

of

legislative . . . districts” (J.S. App. 127a

(emphasis omitted)), testified that “consistent

with what actually occurred in 2012 and 2014,

under any likely electoral scenario, the

Republicans would maintain a legislative

majority.” J.S. App. 148a.5 Mr. Ottman (and

5 Specifically, analysis of the “Team Map” developed with Professor Gaddie’s assistance proved that “to maintain a comfortable majority (54 of 99 seats),

33
the Republican leadership) understood that the objective of these maps was to remove uncertainty from future elections, because the maps, not the voters, would determine the results.
This case therefore presents a clear example of how entrenchment is achieved through political gerrymandering: incumbent lawmakers used modern technology purposefully to “subordinate adherents of one political party” for at least ten years without regard to the will of the voters. Ariz. State Legislature, 135 S. Ct. at 2658. In the words of President Washington, Act 43 has “put in the place of the delegated will of the nation the will of a party.” Washington’s Farewell Address, supra, S. DOC. NO. 106-21, at 14.
By design, partisan entrenchment resists change through the political system. The entire point of Act 43 was to ensure that one party retains statewide control of Wisconsin for at least 10 years. Beyond the ten-year period, it is reasonable to assume that the party that benefitted from partisan gerrymandering would, in the absence of limits set by this Court, continue to use the same techniques to draw new district maps that would further entrench the party in power. Unless this Court sets limits, partisan gerrymandering in Wisconsin and around the
Republicans only had to maintain their statewide vote share at 48%. The Democrats, by contrast, would need more than 54% of the statewide vote to obtain that many seats.” J.S. App. 149a.

34
country will worsen as new technologies, and more expansive and refined voter data, are deployed in the next redistricting cycle. Modern data analysis, statistical techniques, and computer-designed district maps present deeper and more insidious threats of undemocratic outcomes than our Founders could have anticipated. Such technologies and techniques give a ruling class the tools it needs to elect representatives of its choice, rather than the choice of the citizenry.
Even if a “wave election” were to disrupt the incumbent ruling class in Wisconsin, absent legal limits, there would be no reason to expect the new party in power to fix the problem of partisan gerrymandering, rather than try to exploit the same techniques for its own partisan ends. As President Washington warned, the “spirit of revenge” would lead, at best, to alternating political parties engaged in ever more aggressive partisan gerrymandering, ever increasing removal of the voice of the citizens from government, and, at worst, to a “frightful despotism.” Id. at 16-17.
If this Court fails to set limits on severe partisan gerrymanders like Act 43, the American people will be left with a political system that has degenerated into a new form of the old government from which our Founders declared independence: government controlled by an entrenched ruling class, rather than by the people. Because the very nature of the problem is a political system that has been rigged to resist the will of the people as expressed in elections, and because partisan gerrymandering offends basic constitutional rights and principles, this Court is

35
uniquely positioned as the only American institution that carries both the ability and the responsibility to protect our foundational American democratic ideals.
* * *
This case calls upon this Court to safeguard the same fundamental right to democratic representation for which the Sons of Liberty tossed tea into Boston Harbor, declared their independence, waged war against the greatest military power the world had ever seen, and crafted a Constitution that would become a model of democratic governance around the world. This fundamental ideal of governmental power derived from the consent of the governed is threatened by partisan gerrymandering, which transfers power from the people to an entrenched ruling class. This case presents the Court with incumbent legislators who openly subvert democracy through the abuse of modern statistical techniques and map-drawing software that ensure that the government represents the interests of those who draw district lines rather than those who vote within districts. At Gettysburg, President Lincoln encapsulated the vision of our Founders as a “government of the people, by the people, for the people.” It now falls to this Court to ensure that a “nation so conceived and so dedicated, can long endure.”
For the reasons set forth above, amici respectfully submit that Act 43 is a clear example of an unconstitutionally severe partisan gerrymander, and urge this Court to preserve and defend the most basic of American ideals by affirming the decision below.

36
CONCLUSION The judgment of the court below should be affirmed.
Respectfully submitted,
DAVID LEIT Counsel of Record NATALIE J. KRANER ERIC WEINER BRANDON FIERRO LOWENSTEIN SANDLER LLP One Lowenstein Drive Roseland, NJ 07068 (973) 597-2500 dleit@lowenstein.com
Counsel for Amici Curiae

APPENDIX

1a
APPENDIX: List of Amici Curiae
The American Jewish Committee (“AJC”) was founded in 1906 to protect the rights of American Jews and all Americans. It has long since concluded that those rights are best protected in a functioning representative democracy where elected officials are subject to contested elections. Gerrymandering of the sort involved in this case is inconsistent with that sort of democracy.
The Anti-Defamation League (“ADL”) was founded in 1913 to advance good will and mutual understanding among Americans of all backgrounds and races, to combat racial, ethnic, and religious discrimination in the United States, and to fight hate, bigotry, and anti-Semitism. Its founding charter, which proclaimed that ADL’s mission would be “to secure justice and fair treatment to all citizens alike and to put an end forever to unjust and unfair discrimination against . . . any sect or body of citizens,” guides ADL’s work to this day. ADL believes that the Constitution requires that each person in our nation receive equal treatment under the law, and that severe partisan gerrymanders undermine the right of every voter to have a meaningful say in the democratic political process.
The County of Santa Clara (“County”) is a charter county organized and existing under the laws of the State of California. Its mission is to protect the health, safety, and welfare of 1.9 million County residents. As an entity subject to federal law, as well as a governmental entity with a responsibility to protect the welfare of its residents, the County has a strong interest in promoting and protecting core

2a
democratic principles at the local and national levels. The County also administers local, state, and federal elections.
Democracy 21 is a non-profit, non-partisan policy organization that works to eliminate the undue influence of big money in American politics, to ensure the integrity and fairness of our elections and government decisions, and to promote citizen participation in the political process. It supports campaign finance, voting, redistricting and other political reforms to ensure that American democracy is representative and accountable, conducts public education efforts for these ends, participates in litigation involving the constitutionality and interpretation of campaign finance and other democracy reform laws, and works for the proper and effective implementation and enforcement of those laws. Democracy 21 has participated as counsel or amicus curiae in many cases before this Court involving the constitutionality of campaign finance and other government reform laws.
Demos is a national public policy organization working for an America where everyone has an equal say in our democracy and an equal chance in our economy. Demos works to advance voting rights and curb the undue influence of big money in politics, in addition to promoting economic opportunity and racial equity. Severe partisan gerrymandering undermines Americans’ right to full and equal participation in our democracy, and therefore directly threatens Demos’ goals. Demos has regularly submitted briefs as amicus curiae to this Court and will appear as counsel before the Court in the upcoming term.

3a
Friends of the Earth (“FoE”) is a non-profit organization, founded in 1969, with offices in Washington, D.C. and Berkeley, California. FoE has close to 300,000 members in all 50 states. FoE’s mission is to defend the environment and champion a healthy and just world. FoE works to create, maintain, and enforce stronger and more effective environmental laws and policies. As part of that mission, FoE’s democracy campaign fosters more responsive democratic political institutions by opposing (a) gerrymandering and voter suppression methods that suppress the voice of American voters, and (b) the use of unrestricted money in politics to unfairly influence the public agenda, especially environmental concerns.
The Government Accountability Project (“GAP”) is a non-profit, non-partisan public interest organization that promotes government and corporate accountability by litigating whistleblower cases, publicizing whistleblowers’ concerns, and developing legal reforms to support the rights of employees to use speech rights to challenge abuses of power that betray the public trust. Representative democracy, like whistleblowing, is a mechanism to promote institutional accountability. Severe partisan gerrymandering undermines a functional and fair government accountable to the people. GAP, as an organization committed to protecting civil society from the effects of an unaccountable government— corruption, illegality, abuses of authority, and dangers to public health, safety and the environment—joins this brief.
The National Council of Jewish Women (“NCJW”) is a grassroots organization of 90,000

4a
volunteers and advocates who turn progressive ideals into action. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individual rights and freedoms. NCJW's Resolutions state that NCJW resolves to work for “Election laws, policies, and practices that ensure easy and equitable access and eliminate obstacles to the electoral process so that every vote counts and can be verified.” Consistent with its Principles and Resolutions, NCJW joins this brief.
The Natural Resources Defense Council (“NRDC”) is a national, non-profit environmental and public health organization with several hundred thousand members nationwide. NRDC’s mission is to safeguard the earth—its people, its plants and animals, and the natural systems on which all life depends. For more than three decades, NRDC’s scientists, policy advocates, and lawyers have worked to secure the rights of all people to clean air, clean water, and healthy communities. NRDC works with elected representatives at all levels of government, from mayors’ offices to state legislatures to Congress, to advance laws and policies that place the public interest first. NRDC joins this brief because severe partisan gerrymandering threatens the core tenets of representative democracy and erodes the ability of citizens to advocate effectively for causes in which they believe.
OneVirginia2021: Virginians for Fair Redistricting (“OneVirginia2021”) is a nonprofit corporation organized to initiate a comprehensive effort to remove partisan gerrymandering from the redistricting process in Virginia. OneVirginia2021

5a
pursues reform through public education, participation in litigation, and other means. Severe partisan gerrymandering undermines our democratic institutions, weakens the rule of law, violates the rights of citizens to equal protection, and allows the government to disadvantage voters whose political views differ from those of incumbent legislators. OneVirginia2021 is committed to electoral districts that fairly represent the viewpoints of all voters, no matter where they fall on the political spectrum.
Public Citizen, Inc. is a non-profit advocacy organization that, on behalf of its members in every state, appears before Congress, administrative agencies, state governments, and courts on a wide range of issues. Public Citizen seeks to advance legislation on both federal and state levels to protect consumers and workers and to foster open and fair governmental processes. The integrity of our nation’s electoral system has long been one of Public Citizen’s central concerns, both as an end in itself and because of its direct impact on Public Citizen’s other policy concerns. As a result, Public Citizen’s advocacy efforts often focus on legislation affecting the conduct of elections, and Public Citizen has frequently submitted briefs as amicus curiae to this Court in cases presenting election-law issues. See, e.g., Republican Party of La. v. FEC, 137 S. Ct. 2178 (2017); Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).

 
 dNo. 16-1161 IN THE
Supreme Court of the United States

BEVERLY R. GILL, ET AL., — v.—
WILLIAM WHITFORD, ET AL.,

Appellants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, THE NEW YORK CIVIL LIBERTIES UNION, AND THE ACLU OF WISCONSIN FOUNDATION
AS AMICI CURIAE, IN SUPPORT OF APPELLEES

T. Alora Thomas Theresa J. Lee Dale E. Ho Cecillia D. Wang AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004
David D. Cole AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 915 15th Street, NW Washington, DC 20005

Perry M. Grossman Counsel of Record
Arthur N. Eisenberg NEW YORK CIVIL
LIBERTIES UNION 125 Broad Street New York, NY 10004 212-607-3300 pgrossman@nyclu.org
Samuel Issacharoff 40 Washington Square South New York, NY 10012

Laurence J. Dupuis Karyn L. Rotker ACLU OF WISCONSIN FOUNDATION 207 East Buffalo Street, #325 Milwaukee, WI 53202

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ i
INTEREST OF AMICI CURIAE................................ 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT ............................................................... 4
I. THE STATE IS PRESUMPTIVELY OBLIGATED TO FUNCTION AS A NEUTRAL REFEREE IN ITS ADMINISTRATION OF ELECTIONS ....................................................... 4
A. The Neutrality Principle Is Part of the Doctrinal Foundation of the “Marketplace of Ideas” Theory of the First Amendment. 5
B. The Neutrality Principle Acquires Special Force in Cases Involving Government Regulation of the Electoral Process ........... 9
II. PARTISAN GERRYMANDERING THAT SUBSTANTIALLY BURDENS FUNDAMENTAL REPRESENTATIONAL RIGHTS TRIGGERS HEIGHTENED SCRUTINY. ...................................................... 14
III. WISCONSIN’S APPORTIONMENT PLAN WAS ENACTED TO ENTRENCH THE STATE’S PREFERRED PARTY AND RESULTED IN AN ENTRENCHMENT EFFECT THAT CANNOT BE JUSTIFIED .... 19
A. The Intent to Design a Redistricting Plan That Will Entrench the State’s Preferred Political Party Can Be Inferred From the Totality of the Circumstances Surrounding Adoption of the Plan. .......... 20
i

B. An Impermissibly Designed Redistricting Plan Will Only Support a Claim Where the Legislature’s Entrenchment Motive Has Been Accomplished ........................... 25 1. A Map Demonstrates a Suspect Entrenchment Effect When It Produces a Significant Deviation from a State’s Normal Partisan Balance That Will Endure Any Likely Electoral Scenario. ................ 26 2. The Proposed Effect Standard Is Similar to the Standard Applied in Pattern-or-Practice Cases Under the Civil Rights Laws ....................... 28 3. Substantial Evidence Supports the District Court’s Finding of an Entrenchment Effect ........................ 31
C. Wisconsin Failed to Demonstrate That Its Plan Was Necessary to the Advancement of a Legitimate State Interest ...................................................... 34
CONCLUSION.......................................................... 37
ii

TABLE OF AUTHORITIES
CASES Abrams v. United States, 250 U.S. 616 (1919)........... 6 Anderson v. Celebrezze, 460 U.S. 780 (1983) ....passim Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n,
135 S.Ct. 2652 (2015) ................................ 17, 18, 20 Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ......................................... 21, 22 Baker v. Carr, 369 U.S. 186 (1962) .......................... 12 Benisek v. Lamone, CIVIL NO. JKB-13-3233,
(D. Md. Aug. 24, 2017)............................... 12, 15, 16 Bethune-Hill v. Va. State Bd. of Elections,
137 S.Ct. 788 (2017) .............................................. 36 Boos v. Barry, 485 U.S. 312 (1988)............................. 6 Burdick v. Takushi, 504 U.S. 428 (1992) ....... 9, 14, 15 Burson v. Freeman, 504 U.S. 191 (1992) ................... 9 Bush v. Vera, 517 U.S. 952 (1996)............................ 22 Cal. Dem. Party v. Jones,
530 U.S. 567 (2000) ............................... 8, 15, 16, 17 Carrington v. Rash, 380 U.S. 89 (1965) ................... 10 Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ..................................... 8, 11, 13 City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope
Found., 538 U.S. 188 (2003).................................. 21 Cooper v. Harris, 137 S.Ct. 1455 (2017)............. 21, 22 Crawford v. Marion Cty. Election Bd.,
553 U.S. 181 (2008) ............................................... 12
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Davis v. Bandemer, 478 U.S. 109 (1986)............ 12, 17 Dunn v. Blumstein, 405 U.S. 330 (1972).................. 35 Elrod v. Burns, 427 U.S. 347 (1976) ........................ 16 Eu v. S.F. Cty. Democratic Cent. Comm.,
489 U.S. 214 (1989) ................................................. 9 Evans v. Corman, 398 U.S. 419 (1970) .................... 14 First National Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ............................................... 11 Fortson v. Dorsey, 379 U.S. 433 (1965) .................... 12 Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............ 30 Harris v. Ariz. Indep. Redistricting Comm’n,
136 S.Ct. 1301 (2016) ............................................ 35 Hazelwood Sch. Dist. v. United States,
433 U.S. 299 (1977) ................................... 28, 29, 30 Hunt v. Cromartie, 526 U.S. 541 (1999)................... 19 Hunter v. Erickson, 393 U.S. 385 (1969).................. 10 Ill. State Bd. of Elections v. Socialist Workers Party,
440 U.S. 173 (1979) ............................................... 34 Int’l Bhd. of Teamsters v. United States,
431 U.S. 324 (1977) ............................................... 29 Jenness v. Fortson, 403 U.S. 431 (1971) ...........passim Kusper v. Pontikes, 414 U.S. 51 (1973) .................... 34 League of United Latin American Citizens v. Perry,
548 U.S. 399 (2006) ............................... 8, 10, 12, 29 Lubin v. Panish, 415 U.S. 709 (1974) ...................... 35 McConnell v. Fed. Election Comm'n,
540 U.S. 93 (2003) ................................................. 13
iv

McCutcheon v. Fed. Election Com’n, 134 S.Ct. 1434 (2014) ............................ 8, 10, 13, 28
Miller v. Johnson, 515 U.S. 900 (1995) .............. 21, 36 N.Y. State Bd. of Elections v. Lopez Torres,
552 U.S. 196 (2008) ........................................... 9, 18 Niemotko v. Maryland, 340 U.S. 268 (1951) .............. 6 Norman v. Reed, 502 U.S. 279 (1992) .......... 14, 15, 18 Police Dep’t v. Mosley, 408 U.S. 92 (1972) ............. 6, 7 Purcell v. Gonzalez, 549 U.S. 1 (2006) ..................... 12 Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) ......... 6 Reno v. Bossier Parish Sch. Bd.,
520 U.S. 471 (1997) ............................................... 21 Reynolds v. Sims, 377 U.S. 533 (1964)....... 1, 2, 11, 15 Rutan v. Republican Party of Illinois,
497 U.S. 62 (1990) ................................................. 16 Shelby County v. Holder, 133 S.Ct. 2612 (2013)...... 31 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ........ 6 Stanson v. Mott, 17 Cal. 3d 206 (1976) .................... 13 Texas Dept. of Housing and Community Affairs v.
Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015) ............................................ 29 Thornburg v. Gingles, 478 U.S. 30 (1986)................ 28 Vieth v. Jubelirer, 541 U.S. 267 (2004) .............passim White v. Regester, 412 U.S. 755 (1973)..................... 28 Williams v. Rhodes, 393 U.S. 23 (1968) ............passim
v

CONSTITUTION & STATUTES U.S. Const. amend. I..........................................passim U.S. Const. amend. XIV.....................................passim Ariz. Const. Art. 4, Pt. 2, § 1(14) .............................. 26
OTHER AUTHORITIES Alexander Meiklejohn, Testimony on the Meaning of
the First Amendment (1955)............................... 7, 8 Daryl Levinson & Benjamin I. Sachs, Political
Entrenchment and Public Law, 125 Yale L.J. 400 (2015) ........................................ 17 J. Richardson, Messages and Papers of the Presidents (1899) ................................................... 13 John Milton, Areopagitica; A Speech of Mr. John Milton (1644)............................................................ 5 Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 312 (2015).................................... 27 The Federalist, Nos. 52, 53 (James Madison).......... 13 Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016) ........................ 27
vi

INTEREST OF AMICI CURIAE1
The American Civil Liberties Union (ACLU) is a nationwide, non-profit, non-partisan organization with approximately 1.6 million members dedicated to the principles of liberty and equality enshrined in the Constitution. In support of those principles, the ACLU has appeared before this Court in numerous cases involving electoral democracy, including Reynolds v. Sims, 377 U.S. 533 (1964). The ACLU of Wisconsin is a statewide affiliate of the national ACLU and has approximately 23,000 members throughout Wisconsin.
SUMMARY OF ARGUMENT
If the Wisconsin Legislature waited until the votes had been cast, and then drew district lines to ensure that its majority retained power regardless of the choices of the voters, its conduct would be clearly unconstitutional. Instead, the Wisconsin Legislature acted before the election and, by using sophisticated technology and expert assistance, it achieved the same result. The Legislature ensured that the majority party would retain control under any likely electoral scenario, “freez[ing] the status quo . . . [against] the potential fluidity of American political life.” Jenness v. Fortson, 403 U.S. 431, 439 (1971). Locking up the political process for the purpose of disabling competition among partisan viewpoints is
1 Pursuant to Rule 37, both parties have lodged blanket consents for the filing of amicus briefs on behalf of either party. No counsel for either party authored this brief in whole or in part. No persons or entities, other than amici themselves, made a monetary contribution to the preparation or submission of this brief.
1

at odds with the proper role of government in administering elections. It is inconsistent with democratic values and constitutional precedent holding that government must function as a neutral referee in administering elections. The state cannot regulate electoral competition with its thumb on the scales.
This constitutional obligation of government neutrality stems from the First Amendment and the Equal Protection Clause. It is the same principle that circumscribes government regulation of access to public fora and facilities. The neutrality principle acquires special force in circumstances involving government regulation of the electoral process.
When a state interferes with electoral competition to resist changes in voter preference in order to award its preferred political party a legislative monopoly, it impairs the integrity of the democratic process. In so curtailing voters’ freedom of electoral choice, the state diminishes and debases their constitutional right to cast a meaningful ballot. The right to vote embraces more than a right of individual choice. It also involves associational and representational interests. When a redistricting plan intentionally and effectively entrenches the state’s preferred party in office against voters’ choices, the associational aspect of the right to vote is substantially burdened.
Not every limitation on the right to vote requires judicial intervention. Some administrative burdens on the franchise are unavoidable. But some so alter the nature of the franchise that they deny a citizen’s “inalienable right to full and effective participation in the political process [ ] . . .” Reynolds
2

v. Sims, 377 U.S. 533, 565 (1964). Where an enactment substantially impairs the fundamental representational rights, the burden shifts to the state to demonstrate that the impairment is necessary to the advancement of legitimate state interests. Accordingly, a state’s violation of its neutrality obligation in redistricting will shift the burden of justification only where the impairment is substantial.
To impose a burden of justification on the state, plaintiffs must establish two elements: first, improper legislative intent in fashioning a redistricting plan; and second, that the plan gives effect to the legislature’s improper intent. A state acts with improper intent when it draws the apportionment plan to entrench a partisan composition to make the legislature unresponsive to changes in voter preferences. Trial courts can discern legislative intent from contemporaneous statements, political history, erratic legislative processes, and highly irregular district lines. A plan gives effect to the legislature’s improper intent when a challenged map significantly deviates from the state’s normal range of partisan balance in favor of the state’s preferred party in a way that will endure any likely electoral outcome. Trial courts are capable of weighing evidence and drawing conclusions regarding the effect of a redistricting plan. Judging whether a state’s conduct results in a sufficiently significant deviation from neutrality to require justification is a familiar and judicially manageable inquiry using techniques drawn from pattern-orpractice discrimination cases.
3

There may be instances where it is unclear whether legislation favoring the state’s preferred political party constitutes a sufficiently substantial impairment of the integrity of the electoral process to warrant judicial intervention. This case is not one. In this case, the district court, as the trier of fact, concluded that there was ample evidence of both intent and effect. The district court further found that Wisconsin could not provide sufficient justification for its map and properly found the redistricting plan unconstitutional. This Court should affirm that result.

ARGUMENT

I. THE STATE IS PRESUMPTIVELY

OBLIGATED TO FUNCTION AS A

NEUTRAL

REFEREE

IN

ITS

ADMINISTRATION OF ELECTIONS.

Few principles are more fundamental to representative democracy than the state’s obligation to regulate the electoral process in an even-handed manner. A legislature that selectively barred members of one party from voting in an election would violate this principle. So too would a state that ushered Republicans to voting machines that discounted their votes by one-third, while fully counting the votes of Democrats. Nor could a legislature wait until the ballots were cast and then draw district lines to achieve its preferred composition of the legislative body. In each instance, the legislature would be engaged in discrimination that substantially burdens the citizenry’s rights to cast a meaningful ballot and to associate politically. What Wisconsin did here is not materially different.

4

It drew its district lines in advance, based on viewpoint, to entrench its preferred party against popular competition. If the First Amendment means anything, it means that government must act as a neutral referee in its administration of the political process.
The First Amendment protects meaningful political participation by citizens from viewpointbased interference. The integrity of electoral competition undergirds the democratic process. Although the state may speak on its own behalf as a participant in the marketplace of ideas, it cannot fix marketplace rules to ensure its own viewpoints prevail. So, too, if the state were permitted to disable the competitive mechanism of the electoral process to ensure that its preferred viewpoints prevailed despite popular opposition, it would undermine the system of republican self-government. By freezing the political status quo and entrenching the state’s preferred party in office, partisan gerrymandering debases the citizenry’s right to cast a meaningful ballot and to associate for political purposes.
A. The Neutrality Principle Is Part of the Doctrinal Foundation of the “Marketplace of Ideas” Theory of the First Amendment.
The state must regulate and administer the electoral process in a neutral and even-handed fashion. This obligation of neutrality is rooted in the First Amendment commitment to robust ideological competition as a critical component of democratic self-government. The metaphor of a competition of ideas is often traced to John Milton’s imagery of
5

“[Truth] and Fals[e]hood grappl[ing] . . . in a free and open encounter.” Areopagitica (1644). Justice Holmes famously wrote “that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that . . . is the theory of our Constitution.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). The marketplace of ideas metaphor has become a conceptual cornerstone of the First Amendment. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 583 (2011) (noting “the constitutional importance of a free marketplace of ideas” and observing that “[w]ithout such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will”).
Government neutrality regarding the regulation of speech is the doctrinal prerequisite for ideological competition. In its early development and application, the principle—which often takes the form of a prohibition against content discrimination—was most commonly invoked where the state had either created a public forum or where a government entity was supervising expressive access to a public facility. See Police Dep’t v. Mosley, 408 U.S. 92, 95-96 (1972); Niemotko v. Maryland, 340 U.S. 268 (1951); see also, e.g., Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015); Boos v. Barry, 485 U.S. 312 (1988).
In Mosley, for example, the Court invalidated a Chicago ordinance that selectively granted the right to picket on public sidewalks based upon the content of speech and the labor union affiliation of the speakers. In doing so, this Court announced that under the First Amendment and Equal Protection
6

Clause, the government may not “grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views” or “select which issues are worth discussing or debating in public [facilities].” Id. at 96. Noting that “[t]here is an ‘equality of status in the field of ideas’ and government must afford all points of view an equal opportunity to be heard[,]” the Court held: “Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Id.
The Court has firmly established that free ideological competition is critical to democratic selfgovernment and that government neutrality when regulating speech is essential to that end. Public fora where individuals and associations engage in expressive activities are one such example. But the First Amendment demands no less neutrality when the government is regulating the mechanisms that comprise our electoral system.
There is a close connection between preserving robust discourse regarding public policies in public fora and protecting the fundamental right to vote in the electoral forum. More than simply the process of choosing candidates, elections are a focal point for the competition that occurs in the marketplace of ideas. As Professor Alexander Meiklejohn testified before Congress in 1955, elections provide voters a forum to “judge the wisdom or folly of suggested measures” and “it is these ‘judging’ activities of the governing people which the First Amendment protects by its guarantees of freedom from legislative
7

interference.”2 Because self-government is fundamentally predicated upon voters choosing winners and losers in the political marketplace, elections must reflect the voters’ judgments and not the state’s. See Cal. Democratic Party v. Jones, 530 U.S. 567, 590 (2000) (Kennedy, J. concurring) (“In a free society the State is directed by political doctrine, not the other way around.”) State intervention to override voter preferences in the electoral process, no less than in the marketplace of ideas constitutes a form of “[c]ensorship over our thinking, duress over our voting” that is “forbidden by the First Amendment.”3.
Because the electoral process is inextricably intertwined with the marketplace of ideas, the state must maintain neutrality in both “to ensure citizen participation in republican self-governance.” League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399, 415-16 (2006). “The First Amendment is designed and intended to remove governmental restraints from the arena of public discussion . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” McCutcheon v. Fed. Election Com’n, 134 S.Ct. 1434, 1448 (2014) (citation and internal quotation marks omitted). This principle is “[p]remised on mistrust of governmental power [and] stands against attempts
2 S. Comm. on the Judiciary, Subcommittee on Constitutional Rights, Hearings, 84th Cong., 1st Sess. 1955, reprinted as Alexander Meiklejohn, Testimony on the Meaning of the First Amendment 4 (1955), http://rci.rutgers.edu/~tripmcc/phil/ meiklejohn-testimony.pdf (Meiklejohn Testimony).
3 Meiklejohn Testimony 4.
8

to disfavor certain subjects or viewpoints.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Id. at 340 (emphasis added); accord Burson v. Freeman, 504 U.S. 191, 196 (1992) (“speech concerning public affairs is more than self-expression; it is the essence of self-government”) (citation and internal quotation marks omitted). If “an open marketplace where ideas, most especially political ideas, may compete without government interference” is a necessary precondition to selfgovernment, N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208 (2008), then an electoral proving ground that also observes political neutrality is necessary for public debate to yield “enlightened self-government.”
B. The Neutrality Principle Acquires Special Force in Cases Involving Government Regulation of the Electoral Process.
“Competition in ideas and government policies is at the core of our electoral process and of the First Amendment freedoms.” Williams v. Rhodes, 393 U.S. 23, 32 (1968). States have broad authority to regulate elections to ensure that they are “fair and honest” and that “some sort of order, rather than chaos . . . accompan[ies] the democratic processes.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 227, 231 (1989) (internal quotation marks omitted); see Burdick v. Takushi, 504 U.S. 428, 433 (1992). But states also have a “responsibility to observe the limits established by the First
9

Amendment.” Eu, 489 U.S. at 222. Therefore, states must exercise their electoral regulatory authority with “the aim of providing a just framework within which diverse political groups in our society may fairly compete . . . .” Hunter v. Erickson, 393 U.S. 385, 393 (1969) (Harlan, J., concurring).
Administration of the electoral process requires a constellation of laws, including voter qualifications, regulation of candidates’ and parties’ access to the ballot, campaign finance regulations, polling place rules, and apportionment plans. See McCutcheon, 134 S.Ct. at 1441-42; LULAC, 548 U.S. at 415-16; Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Each of these laws “inevitably affects—at least to some degree—the individual’s right to vote and . . . to associate with others for political ends.” Anderson, 460 U.S. at 788. To preserve these fundamental representational rights, this Court has struck down election administration schemes that violate the neutrality principle.
In Carrington v. Rash, for example, this Court invalidated a Texas constitutional provision that prohibited members of the armed forces who moved to Texas during their military duty from voting in that state so long as they remained in the military service. 380 U.S. 89, 96-97 (1965). The state argued the provision was necessary to prevent a political “takeover” of civilian communities near military bases by military personnel. Id. at 93. This Court found the provision violated neutrality principles, reasoning that “‘[f]encing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” Id. at 94.
10

In Williams v. Rhodes, this Court reviewed Ohio’s ballot access statutes, which made it extraordinarily difficult for any party other than the Republican and Democratic parties to appear on the ballot. 393 U.S. at 24-25. The State argued its restrictions advanced an interest in promoting the two-party system. The Court found that “the Ohio system does not merely favor a ‘two-party system’; it favors two particular parties—the Republicans and the Democrats—and in effect tends to give them a complete monopoly on the right to have people vote for or against them.” Id. at 32. Thus, the Court concluded that Ohio’s attempt to “freeze the political status quo” violated the state’s obligation of neutrality with respect to ballot access. Jenness, 403 U.S. at 438 (discussing Williams).
In First National Bank of Boston v. Bellotti, the Court invalidated a statute that prohibited banks and business corporations from engaging in certain campaign speech in connection with referendum elections. 435 U.S. 765 (1978). The Court regarded the law as “an impermissible legislative prohibition of [electoral] speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues . . . .” Id. at 784; see also Citizens United, 558 U.S. at 341 (“The Government may not . . . deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration”).
Concern for the integrity of the electoral process has also guided this Court’s review of apportionment plans. Since Reynolds v. Sims, states have been warned that the failure to define electoral boundaries in a neutral fashion may violate “[t]he
11

right to vote freely for the candidate of one’s choice.” 377 U.S. at 555. For at least as long, this Court has been concerned with giving states “an open invitation to partisan gerrymandering,” id. at 578-79, and has been suspicious of redistricting plans designed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (emphasis added); see also Davis v. Bandemer, 478 U.S. 109, 127 (1986); Vieth v. Jubelirer, 541 U.S. 267, 292 (2004); id. at 316 (Kennedy, J. concurring); LULAC v. Perry, 548 U.S. 399. 413-14 (2006). And in Vieth, all nine members of the Court concluded that “an excessive injection of politics [in districting] is unlawful.” Vieth, 541 U.S. at 316 (Kennedy, J., concurring in the judgment); accord id. at 293 (plurality), 324 (Stevens, J., dissenting), 354 (Souter, J., dissenting), 360 (Breyer, J., dissenting).
The reasons for this Court’s insistence on neutrality are well-founded. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam); see Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 197 (2008) (“[P]ublic confidence in the integrity of the electoral process . . . encourages citizen participation in the democratic process”). Nothing could be more damaging to voter confidence or more discouraging to disfavored voters than having the state itself intentionally entrench its preferred candidates or parties in office against the will of “an ‘informed, civically militant electorate’ and ‘an aroused popular conscience.’” Baker v. Carr, 369 U.S. 186, 259 (1962) (Clark, J., concurring); see Benisek v. Lamone, CIVIL NO. JKB-13-3233, Slip Op. 55 (D. Md. Aug. 24, 2017)
12

(Niemeyer, C.J., dissenting) (“it is not hard to see how [partisan gerrymandering] could deter reasonable voters from full participation in the political process”). “Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns.” McCutcheon, 134 S.Ct. at 1462. By ensconcing the preferred party in office and “freez[ing] the political status quo,” Jenness, 403 U.S. at 438, partisan gerrymandering undermines the “responsiveness [that] is key to the very concept of self-government through elected officials,” McCutcheon, 134 S.Ct. at 1462, and substantially burdens representational rights protected by the First Amendment.
State adherence to the neutrality principle in regulating elections is consistent with the intent of the framers. “A principal danger feared by our country’s founders lay in the possibility that the holders of governmental authority would use official power improperly to perpetuate themselves, or their allies, in office.” Stanson v. Mott, 17 Cal. 3d 206, 217 (1976) (citing The Federalist Papers, Nos. 52, 53; 10 J. Richardson, Messages and Papers of the Presidents 98-99 (1899) (President Jefferson)); see also McConnell v. Fed. Election Comm'n, 540 U.S. 93, 263 (2003) (“The first instinct of power is the retention of power . . . .”) (Scalia, J., concurring in part and dissenting in part), overruled by Citizens United, 558 U.S. 310. That possibility has become a practice. “Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment: ‘We are in the business of rigging elections.’” Vieth, 541 U.S. at 317 (Kennedy, J., concurring in the judgment) (citation omitted).
13

Judicial intervention is essential to address this practice and restore the constitutional commitment to democratic self-government.
II. PARTISAN GERRYMANDERING THAT SUBSTANTIALLY BURDENS FUNDAMENTAL REPRESENTATIONAL RIGHTS TRIGGERS HEIGHTENED SCRUTINY.
The rights to vote and to associate are fundamental political rights. See Williams, 393 U.S. at 30–31. Before fundamental rights “can be restricted,” the Court must engage in “close constitutional scrutiny” of the restriction. Evans v. Corman, 398 U.S. 419, 422 (1970). Laws regulating the electoral process “will invariably impose some burden upon individual voters.” Burdick, 504 at 434. This Court has, therefore, provided a flexible standard whereby courts “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. The injury (or burden) is then balanced against the state’s justification, id., which must be “sufficiently weighty to justify” the burden imposed. Norman v. Reed, 502 U.S. 279, 28889 (1992).
In partisan gerrymandering, the state abuses its administrative responsibilities and compromises the integrity of the democratic process when it manipulates the electoral marketplace to award a legislative “monopoly” to its preferred party. Williams, 393 U.S. at 32. By entrenching the State’s chosen party against meaningful accountability to the electorate, partisan gerrymandering
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substantially burdens the fundamental rights (1) to “cast a meaningful vote,” Burdick, 504 U.S. at 445 (Kennedy, J, dissenting); and (2) “to associate for the advancement of political beliefs,” Anderson, 460 U.S. at 787 (quoting Williams, 393 U.S. at 30–31). Where, as here, there is a threshold showing that these fundamental rights are substantially burdened on the basis of viewpoint, precedent requires that courts apply heightened scrutiny. See, e.g., Cal. Dem. Party v. Jones, 530 U.S. 567, 581-82 (2000); Norman, 502 U.S. at 288-89; Anderson, 460 U.S. at 789; accord Benisek, Slip Op. at 45-46 (Niemeyer, C.J., dissenting). The state’s actions must, therefore, be necessary to meet legitimate interests. Anderson, 460 U.S. at 806.
An individual’s vote is not meaningful if cast under circumstances where the government has compromised the integrity of the election process to entrench its preferred viewpoint. See Burdick, 504 U.S. at 447 (Kennedy, J, dissenting) (A voter is “deprive[d] of the opportunity to cast a meaningful ballot” when a legislature constrains voters’ ability to “vote for the candidate of their choice”). When a voter enters the polls knowing the state has designed the electoral system to reach its preferred outcome, the voter would properly conclude that the state has compromised the integrity of the election. By so constricting freedom of electoral choice, the state debases the right to cast a meaningful ballot. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and . . . the right of suffrage can be denied by a debasement . . . of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds, 377 U.S. at 555.
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The constitutional issue in partisan gerrymandering is whether the state has placed a heavy thumb on the scale to “freeze the political status quo,” and entrench the state’s preferred party. Jenness, 403 U.S. at 438. The doctrinal difficulty has been to identify when partisan gerrymandering is of sufficient magnitude to infringe the right to “freely” cast a ballot. The constitutionality of such conduct must be measured against the requirements of heightened scrutiny. See Williams, 393 U.S. at 30– 31. In Williams, this Court found that electoral regulations effectively created a state-sanctioned monopoly on political contests where “a vote may be cast only for one of two parties.” Williams, 393 U.S. at 30–31. Such a substantial burden on voting failed to meet the heightened scrutiny standard. Here, Wisconsin has similarly interfered with the electoral marketplace by ensuring that voters cannot upset its decision to give its preferred party a monopoly.
Partisan gerrymandering also burdens freedom of association. “‘[T]he entrenchment of one or a few parties to the exclusion of others’ . . . ‘is a very effective impediment to the associational and speech freedoms which are essential to a meaningful system of democratic government.’” Rutan v. Republican Party of Illinois, 497 U.S. 62, 70 (1990) (quoting Elrod v. Burns, 427 U.S. 347, 369–70 (1976)); Benisek, Slip Op. 28-29 (Niemeyer, C.J., dissenting) (“the conduct violates the First Amendment, effectively punishing voters for the content of their voting practices. . . . The harm is . . . found in . . . the intentional and targeted burdening of the effective exercise of a First Amendment representational right.”) “Representative democracy in any populous unit of governance is unimaginable
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without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” Jones, 530 U.S. at 574. Voters have the right to associate with parties and with other voters. Anderson, 460 U.S. at 787–88. It is through association that the act of voting has resonance in the political system. Id. at 794 (Voters “associate in the electoral arena to enhance their political effectiveness as a group[.]”); cf. Jones, 530 U.S. at 587 (Kennedy, concurring) (“Political parties advance a shared political belief, but to do so they often must speak through their candidates.”).
Partisan gerrymandering directly burdens associational rights by impeding the fluidity and mutability of the political process. Cf. Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S.Ct. 2652, 2658, 2672 (2015) (discussion of partisan gerrymandering). Political affiliation is mutable. Vieth, 541 U.S. at 287 (plurality opinion); see also Bandemer, 478 U.S. at 156, (O’Connor, J., concurring in judgment). Voters may identify as independents; they may change their party affiliations between elections; or they may vote for candidates from different parties within a single election. Vieth, 541 U.S. at 287 (plurality opinion). But a system that has been effectively gerrymandered freezes the political status quo, leaving the party entrenched in power despite potentially significant changes in voters’ preferences. See Daryl Levinson & Benjamin I. Sachs, Political Entrenchment and Public Law, 125 Yale L.J. 400, 409 (2015) (discussion of partisan gerrymandering).
This Court has found a substantial burden on freedom of association where the legislature
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hampered voters’ ability to band together with “likeminded voters to gather in pursuit of common political ends . . . [and] to express their . . . political preferences.” Norman, 502 U.S. at 288-89. Partisan gerrymandering is pernicious because of the limitations placed on “independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group.” Anderson, 460 U.S. at 794. Such burdens on associational rights are substantial because they “threaten to reduce diversity and competition in the marketplace of ideas.” Id.
Unconstitutional partisan gerrymandering is distinct from the inevitable incidental political considerations and partisan effects that may occur under neutral conditions. Where “one-party rule is entrenched [because] voters approve of the positions and candidates that the party regularly puts forward,” courts cannot and should not intervene in a neutrally-administered electoral system. Lopez Torres, 552 U.S. at 208. But when a state uses redistricting to grant its preferred party a durable monopoly, this deviation from neutrality disables the competitive mechanism that undergirds the democratic process, and substantially burdens voters’ rights to participate in a fair election. See Williams, 393 U.S. 31-32. Thus, partisan gerrymandering that intentionally and effectively entrenches a state’s preferred party in office discriminates on the basis of viewpoint and imposes a substantial burden on citizens’ right to exercise a meaningful vote and to associate. See Vieth, 541 U.S. at 314 (Kennedy, J, concurring); see also Ariz. Indep. Redistricting Comm’n, 135 S.Ct. at 2658.
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III. WISCONSIN’S APPORTIONMENT PLAN WAS ENACTED TO ENTRENCH THE STATE’S PREFERRED PARTY AND RESULTED IN AN ENTRENCHMENT EFFECT THAT CANNOT BE JUSTIFIED.
Consistent with its First Amendment and Equal Protection jurisprudence, the Court should adopt a burden shifting analysis to determine when a redistricting plan substantially burdens fundamental representational rights.
As an initial matter, plaintiffs must establish a prima facie case of improper partisan gerrymandering. To do so, here, they must show: (1) that the state acted with the intent to entrench the state’s preferred political party; and (2) that the state’s intent has in fact been accomplished. If plaintiffs establish a prima facie case, the burden shifts to the state to justify its actions. Because partisan gerrymandering substantially burdens fundamental representational rights, the state must meet heightened scrutiny. See supra Section II. The state must demonstrate that its map was necessary to accomplish legitimate interests.
District courts, as fact finders, are responsible for determining whether the parties have met their respective burdens. See Hunt v. Cromartie, 526 U.S. 541, 553-54 (1999) (“[T]he District Court is more familiar with the evidence than this Court, and is likewise better suited to assess the General Assembly’s motivations”). The district court properly exercised its role as fact finder here and correctly concluded that the plaintiffs had met their burden and the defendants had failed to establish a justification for its map.
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A. The Intent to Design a Redistricting Plan That Will Entrench the State’s Preferred Political Party Can Be Inferred From the Totality of the Circumstances Surrounding Adoption of the Plan.
Plaintiffs must first establish that the state sought to entrench its preferred political party or candidates in office. A state acts with an intent to entrench when it draws an apportionment plan deliberately to ensure that the partisan composition of the legislature will not be responsive to changes in voter preferences under the likely range of electoral scenarios. An intent to entrench entails more than the mere consideration of politics. See Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the judgment) (“The inquiry is not whether political classifications were used,” but “whether political classifications were used to burden a group’s representational rights.”). Instead, an intent to entrench exists where lines are drawn for the purpose of locking in partisan advantage regardless of the voters’ likely choices. See Ariz. State Leg., 135 S.Ct. at 2658 (“[P]artisan gerrymandering [is] the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power”). Any redistricting plan drawn by a legislature will be created with knowledge of the political distribution of voters. However, a state legislature cannot draw lines with the purpose of shielding its current majority from changes in the associational choices of the citizenry.
As with other forms of intent, the intent to entrench can be established through direct and
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circumstantial evidence. See Miller v. Johnson, 515 U.S. 900, 916 (1995); see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 488-89 (1997) (discussing the Court’s use of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) in racial gerrymandering cases). Inferences of improper intent can be drawn from contemporaneous statements, political history, and the procedures used to draw district lines. See Vieth, 541 U.S. at 321-323 (Stevens, J., dissenting).
Contemporaneous statements have been used in many of this Court’s past cases as evidence of an improper purpose. See Cooper v. Harris, 137 S.Ct. 1455, 1468–69, 1475–75 (2017); see also City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196–97 (2003) (“[S]tatements made by decisionmakers or referendum sponsors during deliberation over a referendum may constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted initiative.”). In Cooper, for example, the Court considered statements of members of the state legislature—in particular one senator and one representative—to draw conclusions regarding legislative motivation. 137 S.Ct. at 1468–69, 1475–76. The Court also considered legislators’ instructions to their redistricting consultant as evidence of legislative intent. Id. at 1468.
A state’s history can also provide evidence of improper purpose. For example, in Miller, the Court focused on the history of Georgia’s interactions with the Department of Justice regarding the Department’s preclearance demands, which made clear that race was the predominant factor in the state’s redistricting. Miller, 515 U.S. at 918. In
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states with a history of partisan entrenchment, that history can support a finding of intent to entrench the party favored by the current map, especially where decisionmakers are aware of the map’s past performance and there is evidence that they seek to repeat that performance.

Procedural irregularities may also support a finding that “improper purposes are playing a role” in official decisionmaking. Arlington Heights, 429 U.S. at 267. With partisan gerrymandering, such procedures may include exclusion of the opposing party from deliberations and “excessive weight on data concerning party voting trends” during the process. See Vieth, 541 U.S. at 322 (Stevens, J., dissenting). In Bush v. Vera, the Court relied on the legislature’s use of detailed racial data in the districting process to affirm a finding of discriminatory intent. See 517 U.S. 952, 970–71 (1996). In Cooper, the Court relied on evidence of procedural irregularities in affirming the district court’s conclusion regarding the mapmaker’s intent— specifically, that the mapmaker “deviated from the districting practices he otherwise would have followed” to carry out legislators’ instructions. 137 S.Ct. at 1469.

The factual findings below unmistakably

establish that the state acted with an impermissible

intent to entrench the majority party in the state

legislature.

Contemporaneous statements of

decisionmakers here belie any pretense of neutrality.

One example was the majority party’s

communications with Professor Gaddie, an outside

consultant and expert on redistricting. As in Cooper,

the instructions to Professor Gaddie were explicit.

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His marching orders were to “test the partisan make up and performance” of various maps to determine the relative durability of their partisan advantages over a wide range of election scenarios using, among other things, a composite score for partisanship developed by majority party aides that Professor Gaddie confirmed as accurate. See JA162–67. As Professor Gaddie testified, his analysis was “designed to tease out a potential estimated vote for the legislator in the district and then allow you to also look at that and say, okay, what if the Democrats have a good year? What if the Republicans have a good year? How does it shift?’” Id. at 164–65. Professor Gaddie gave each map an “S” curve – a visual aid that depicted the probable party outcome of each map. Id. at 174-75. The mapmakers wanted to know not only what the average partisan effect was but what the partisan effect would be if the choices of the electorate changed, i.e., if a larger number of voters made the choice to associate with one party instead of the other. Using this information, the mapmakers selected the map that would offer the greatest statistical certainty that their majority would not be responsive to plausible changes in voters’ associational choices.
Other statements in the record further support the district court’s finding that the state did not merely consider politics, but sought to entrench its preferred party. The plan’s drafters created a document comparing their prospective map to the existing map (“Current Map”) and highlighted that under “the Current Map, 49 seats are 50% or better” for Republicans, but under the proposed legislative map, “59 Assembly seats are 50% or better.’” SA340.
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Legislative intent to lock in the status quo is reflected in a presentation to members of the Senate Republican caucus, in which one of the mapmakers stated: “The maps we pass will determine who’s here 10 years from now,” and “[w]e have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.” Id. at 330 (emphasis added). The contemporaneous statements of those involved in drawing the Wisconsin map support a finding of legislative intent to entrench the majority.
The one-sided and exclusionary legislative process further supports the district court’s finding of improper intent. The process was dominated by Republican legislators, without input from Democratic legislators. The map drawing process was controlled by staffers and consultants for members of the Republican legislative leadership. See JA158–59, JA182–83; see also J.S.App.12a-29a. These mapmakers used historical election data to create their composite partisanship score and then drew a number of different maps whose names reflected the level of partisan advantage achieved for the Republicans by the districting plan. See, e.g. SA335; SA337; SA338(listing map names); see also J.S.App.19a-20a. They then compared at least six different maps and hypothesized how many seats Republicans would win under each map. SA323-27; SA340-43; SA353-54; see also J.S.App.21a-22a. Republican legislators were provided memoranda comparing the percentage of voters in the old and new districts voted for Republican candidates, but not whether the new districts were contiguous or compact. See, e.g., SA349–351. The process included only Republicans and focused almost exclusively on
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the partisan outcomes of the maps and not on legitimate, neutral concerns.
This record substantially supports the district court’s finding that the legislature acted with impermissible intent when drawing the district lines.
B. An Impermissibly Designed Redistricting Plan Will Only Support a Claim Where the Legislature’s Entrenchment Motive Has Been Accomplished.
In addition to an intent to entrench, plaintiffs must also show that the legislature’s actions had that desired effect. That effect is manifest where a challenged map significantly deviates from the state’s normal range of partisan balance in favor of the state’s preferred party in a way that will endure any likely electoral outcome. The constitutional inquiry is not whether a map results in one-party rule or fails to achieve proportional representation, but whether the state has substantially deviated from sound districting principles in order to render its electoral system non-responsive to changes in voter preferences, or to “freeze the political status quo.” Jenness, 403 U.S. at 438. This standard is manageable, especially given new and improved methods of measuring partisan gerrymandering that have received the imprimatur of “consensus among social scientists,” including Professor Gaddie, the redistricting consultant to the Wisconsin Legislature’s Republican leadership.4 It is also
4 See Brief of Bernard Grofman and Ronald Keith Gaddie as Amici Curiae in Support of Neither Party, at 10-12 (“Political Scientists Br.”).
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consistent with the approach taken by the district court below. J.S.App.145a-46a.
1. A Map Demonstrates a Suspect Entrenchment Effect When It Produces a Significant Deviation from a State’s Normal Partisan Balance That Will Endure Any Likely Electoral Scenario.
The requirement of a significant deviation from the normal range of partisan balance focuses on whether and to what extent the state’s map exhibits a violation of the neutrality principle in favor of the state’s preferred party. This inquiry “asks whether the map treats similarly situated parties equally: whether both parties receive like opportunity to capture a given number of legislative seats if they receive a comparable share of the statewide vote.” Political Scientists Br. at 12. A state adhering to the neutrality principle would design an apportionment plan based on neutral criteria, including equipopulation principles, nondiscrimination laws, compactness, contiguity, respect for political and geographic features, and preserving communities of interest. See, e.g., Ariz. Const. Art. 4, Pt. 2, § 1(14) (specifying neutral apportionment criteria for independent redistricting commission).
This is not a requirement of proportionality in terms of a party’s vote share and its share of seats in a legislature. Because residential patterns naturally cluster and disperse voters of different viewpoints, a neutral redistricting process will not necessarily result in proportional representation. A neutral process will generally produce a range of
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redistricting outcomes that reasonably reflect a state’s normal range of partisan balance.5
One way of identifying suspect departures from neutrality is to (1) generate a large set of hypothetical maps based on established neutral criteria; (2) identify the median in the distribution of hypothetical maps; and (3) determine whether the challenged map produces a partisan balance that deviates significantly from that median to the advantage of the state’s preferred party.6 This method is an “extremely sophisticated and accurate” means of measuring partisan asymmetry, Political Scientists Br. at 21, but there are other reliable and accurate methods comparing a challenged plan’s partisan balance to a neutral baseline. Id. at 26-31. As Justice Kennedy has recognized, measurements of partisan asymmetry will become even more sophisticated and accurate as “new technologies . . . produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.” Vieth, 541 U.S. at 312-3 (Kennedy, J., concurring in the judgment).
5 See Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 312, 335, 338-339 (2015).
6 Id.; see id. at 332 (“If the partisanship of a proposed plan lies in the extreme tail of the distribution of simulated plans or outside the distribution altogether, courts can make relatively strong inferences about the plan’s partisan effect and intent.”); see also Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351, 360, 362-64 (2016) (positing comparison of challenged map against distribution of millions of alternative maps).
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A showing of an entrenchment effect requires evidence that the partisan effect of a challenged plan will endure any likely electoral outcome. This inquiry assesses whether the deviation from neutrality in the challenged plan “compromise[s] the political responsiveness at the heart of democratic process” and to what extent the plan is attributable to the legislature’s intent to entrench. McCutcheon, 134 S.Ct. at 1461. A neutral plan might produce a legislature that is imbalanced in partisan terms, but if a state experiences significant swings in voter preferences, such a neutral plan would be expected to expose legislators to those swings, and thus keep them responsive to the voters. However, if a map preserves a partisan imbalance throughout the normal range of voter behavior based on contemporaneous and historical voting data, the state’s preferred party will remain in power absent extraordinary circumstances and will be unresponsive to changing voter choice. This “lack of responsiveness” has long been held to be a critical element of unconstitutional denial of a meaningful right to vote. See Thornburg v. Gingles, 478 U.S. 30, 36-37 & n.4 (1986) (citing White v. Regester, 412 U.S. 755 (1973)).
2. The Proposed Effect Standard Is Similar to the Standard Applied in Pattern-or-Practice Cases Under the Civil Rights Laws.
The standard for calculating discriminatory effect in partisan gerrymanders outlined above mirrors the well-established standard courts apply to pattern-or-practice discrimination claims under the civil rights laws. See Hazelwood Sch. Dist. v. United
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States, 433 U.S. 299, 307 (1977); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977). For example, in Title VII cases, courts use the racial and ethnic population of the relevant workforce in the relevant geographic market as a neutral baseline against which to measure the composition of a particular employer’s workforce. See Hazelwood, 433 U.S. at 307 (“[A]bsent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.” (quoting Teamsters, 431 U.S. at 340 n.20)); see also id. at 311-12. Identifying a neutral baseline in a partisan gerrymandering case can proceed in the same manner. Courts in Title VII pattern-or-practice claims assess whether the statistical evidence demonstrates a “long-lasting and gross disparity” between the composition of an employer’s work force and the relevant labor market. Hazelwood, 433 U.S. at 308. Similarly, in partisan gerrymandering cases, courts inquire whether partisan imbalance in a challenged map is both “large” and “durable,” J.S.App.172a.
In both partisan gerrymandering and patternor-practice cases, courts understand that the law does not guarantee proportionality. See LULAC, 548 U.S. at 419; Hazelwood, 433 U.S. at 307; see also Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507, 2523 (2015) (discussing importance of “[a] robust causality requirement” to “ensure[] that racial imbalance . . . does not, without more, establish a prima facie case of disparate impact” to avoid implementation of “numerical quotas”). But in both
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types of cases, evidence of “gross statistical disparities” between the challenged conduct and neutral conditions can constitute prima facie evidence of intent and effect. Hazelwood, 433 U.S. at 307-08; cf. Gomillion v. Lightfoot, 364 U.S. 339, 348 (1960) (evidence of stark impact of facially neutral law may be determinative of intent and effect). Whether a disparity, partisan or racial, is a sufficiently substantial departure from the baseline to support a finding of liability may be determined by “traditional tests of statistical significance.” Political Scientists Br. 30; see also Hazelwood, 433 U.S. at 308-09 & n. 14 (discussing application of “[a] precise method of measuring the significance of such statistical disparities . . . involv[ing] calculation of the ‘standard deviation’ as a measure of predicted fluctuation from the expected value of a sample”). In addition, technological advances continue to make possible increasingly sophisticated and accurate methods of comparing challenged maps to a neutral baseline to isolate the extent of effect resulting from invidious intent. Political Scientists Br. 30; see also Vieth, 541 U.S. at 312-13 (Kennedy, J., concurring in the judgment).
After-the-fact evidence of multiple elections outcomes is not necessary to establish that improper entrenchment has occurred. Plaintiffs can and must be able to challenge immediately a state’s use of sophisticated technology to generate maps that lock out opponents of the state’s preferred party from meaningful participation in the democratic process. A state’s intentional entrenchment of its majority party on viewpoint-based grounds violates the First Amendment whether it has effect in a single election, or continues over time. If voters whose
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representational rights have been violated are required to wait until multiple elections have been run before bringing a challenge, officials elected under an unconstitutional map gain illegitimate “advantages of incumbency.” Shelby County v. Holder, 133 S.Ct. 2612, 2640 (2013) (Ginsburg, J., dissenting). Even worse, those officials would have an incentive to drag out already protracted litigation to prolong their tenures. With the precise metrics now available, courts have a constitutional obligation to permit voters to act quickly to preserve the integrity of elections and their representational rights.
3. Substantial Evidence Supports the District Court’s Finding of an Entrenchment Effect.
The record includes substantial evidence that Wisconsin’s map accomplishes the legislature’s intent to entrench the Republican Party in power. That evidence led to express findings by the court below of impermissible entrenchment “throughout the decennial period.” J.S.App.166a. The district court’s finding is supported by the results of two actual elections and four separate expert opinions using three different modes of analysis credited by both sides’ experts. See Id. at 145a-177a; Mot. to Affirm at 11-12 & n.4; Political Scientists Br. at 22, 25-28. This factual determination is entitled to substantial deference on appeal.
First, the results of two actual elections held under Act 43 confirm that the state achieved its goal of entrenching an outsized Republican majority in the legislature. “In 2012, Republicans garnered 48.6% of the vote, but secured 60 [of 99] seats in the
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Assembly” and “in 2014, Republicans increased their vote percentage to 52 and secured 63 Assembly seats.” J.S.App.148a; JA249. The result is that the challenged map permitted Republicans’ to maintain an approximate 60% supermajority in the Assembly, regardless of whether they received a minority or narrow majority of the statewide vote. In two elections, Wisconsin’s apportionment plan demonstrated an actual substantial partisan imbalance that showed little responsiveness to voters’ choices.
Second, the district court found that the sensitivity testing performed by both plaintiffs’ and defendants’ experts demonstrated that Act 43 would produce a significant and durable partisan imbalance in favor of the Republican Party under any likely election outcome. J.S.App.148a. These analyses examined the results of elections dating back over 20 years and placed the distribution of likely outcomes between the highest and lowest vote share for each party over that time. J.S.App.148a-154a. Both Professors Gaddie’s and Mayer’s analyses were calibrated around a neutral baseline of partisan distribution around the state and then tested how changes in each party’s vote share would affect their seat share. Id. at 148a. Their results were mutually confirming, with both experts showing that Act 43 would yield a large advantage to Republicans that was unresponsive to changes in Democratic vote share—even changes that were extreme by historical standards. Id. at 148a-154a.
Third, this entrenchment effect finding was also supported by two more expert analyses employing the Efficiency Gap (EG) method. Id. at
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159a (noting that the EG “further bolstered” the evidence undergirding the district court’s finding of discriminatory effect). The EG measures the relative difference in the parties’ “wasted votes,” i.e., votes that do not contribute to a candidate winning more than 50% of the vote, to determine whether and to what extent the “cracking” and “packing” of voters gives one party an advantage in translating votes into seats. See Brief of Eric McGhee as Amicus Curiae in Support of Neither Party, Section I.A. The lower court found that, under the facts presented, the EG provided a means of confirming the extent to which a challenged map’s partisan imbalance and responsiveness reflected a “deviation from the relationship we would expect to observe between votes and seats” under neutral conditions. J.S.App.168a-69a. Professor Jackman’s and Mayer’s EG analyses were consistent with the actual election results as well as the results obtained by Professors Gaddie and Mayer using a different statistical inquiry. Given the consistency of results, the district court accepted the conclusions of both Professor Jackman and Professor Mayer and found that Wisconsin’s map exceeded the entrenchment threshold by a significant margin. J.S.App.162a166a (observing that under four separate calculations Act 43’s EG ranged from 9.5% to 13%).
Finally, a fourth metric, average-median analysis, also confirms that Act 43 achieved an extreme partisan imbalance. Mot. to Affirm at 12 n. 4; see Political Scientists Br. at 27. This simple measure compares a party’s average vote share across all districts to the vote share it obtained in the median district. Id. The average, which is independent of a particular plan, provides yet
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another statistical measure in which a neutral baseline is used to measure the distortion evident in a particular plan’s apportionment. Where a party’s “median vote share is significantly lower than its average vote share, partisan asymmetry is at work.” Id. An average-median analysis of the actual results of the 2012 and 2014 elections is consistent with and confirmatory of the other evidence identified by the district court to support its finding of Act 43’s unconstitutional effects. Mot. to Affirm at 12 & n.4.
The quantity, variety, and consistency of the evidence supporting the district court’s finding of discriminatory effect is sufficient to satisfy any standard.
C. Wisconsin Failed to Demonstrate That Its Plan Was Necessary to the Advancement of a Legitimate State Interest.
Once plaintiffs have established a prima facie case of partisan entrenchment, the burden shifts to the state to establish that the redistricting plan was necessary to meet legitimate state interests. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185 (1979) (“[A] State may not choose means that unnecessarily restrict constitutionally protected liberty.”) (quoting Kusper v. Pontikes, 414 U.S. 51, 58–59 (1973)); see also Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (partisan gerrymandering may violate the Constitution when political classifications are “applied in an invidious manner or in a way unrelated to any legitimate legislative objective”). The Court has identified a set of legitimate interests in the redistricting context, including “traditional districting principles such as
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compactness and contiguity,” “maintaining the integrity of political subdivisions,” or maintaining “the competitive balance among political parties.” Harris v. Ariz. Indep. Redistricting Comm’n, 136 S.Ct. 1301, 1306 (2016) (citations and internal quotation marks omitted).
The inquiry does not stop at establishing that the state pursued legitimate interests when drawing the map. “[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty.” Anderson, 460 U.S. at 806, (quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1972)); Lubin v. Panish, 415 U.S. 709, 716 (1974) (“[T]he legitimate state interest . . . must be achieved by a means that does not unfairly or unnecessarily burden” the fundamental rights at issue). The state must prove that the map drawn was necessary to satisfy these legitimate interests. “[I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” Dunn, 405 U.S. at 343. A legislature cannot select a map that freezes the political status quo and burdens fundamental First Amendment rights, when it could have selected other maps that would have met its legitimate interests without viewpoint-based entrenchment.
At trial, Wisconsin offered two reasons for the current map: (1) “political geography” and (2) traditional districting principles. The district court correctly found that the map was not necessary to accomplish these asserted justifications, which therefore could not adequately explain the map
35

selected by the Legislature. The record makes clear that many other maps would both reflect Wisconsin’s political geography and satisfy traditional districting principles. Legislators considered six maps, each of which had been tested to see if they met traditional districting principles, including the then-current map, which had been drawn by a court. See, e.g., SA323–37; SA340-343; SA353; SA354; see also J.S.App.18a-20a (discussion of maps considered). But the Legislature intentionally implemented a map that would maximize Republican entrenchment, even where it had options that would have equally furthered all its legitimate interests and without locking up the electoral process. See J.S.App.18a29a.
Wisconsin contends that complying with traditional districting principles alone is sufficient to make its map unobjectionable. See Appellants Br. § III. This Court has specifically rejected this argument, holding that “[s]hape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence [of] . . . the legislature’s dominant and controlling rationale in drawing its district lines.” Miller, 515 U.S. at 913. Standing alone, “[t]raditional redistricting principles . . . are numerous and malleable” and could be used to give effect to a legislature’s impermissible intent. Bethune-Hill v. Va. State Bd. of Elections, 137 S.Ct. 788, 799 (2017). Because many other maps met those principles, Wisconsin’s argument that traditional districting principles alone are sufficient to defeat any claim is unavailing. The enacted map was not necessary to meet those principles.
36

CONCLUSION
For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully Submitted,

T. Alora Thomas Theresa J. Lee Dale E. Ho Cecillia D. Wang AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004
David D. Cole AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 915 15th Street, NW Washington, DC 20005

Perry M. Grossman Counsel of Record
Arthur N. Eisenberg NEW YORK CIVIL
LIBERTIES UNION 125 Broad Street New York, NY 10004 212-607-3300 pgrossman@nyclu.org
Samuel Issacharoff 40 Washington Square
South New York, NY 10012

Laurence J. Dupuis Karyn L. Rotker ACLU OF WISCONSIN
FOUNDATION 207 East Buffalo Street,
#325 Milwaukee, WI 53202

Dated: September 1, 2017.

37

 
 No. 16-1161
IN THE
Supreme Court of the United States

BEVERLY R. GILL, ET AL.,
v.
WILLIAM WHITFORD, ET AL.,

Appellants,
Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.; LATINO JUSTICE PRLDEF;
ASIAN AMERICANS ADVANCING JUSTICE – AAJC; ASIAN AMERICANS ADVANCING JUSTICE - ASIAN LAW CAUCUS; LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.; AND LEADERSHIP CONFERENCE ON CIVIL
AND HUMAN RIGHTS IN SUPPORT OF APPELLEES

SHERRILYN A. IFILL President & Director-Counsel
JANAI S. NELSON SAMUEL SPITAL LEAH C. ADEN NAACP LEGAL DEFENSE
& EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, New York 10006

JUSTIN LEVITT Counsel of Record
LOYOLA LAW SCHOOL* 919 Albany St. Los Angeles, California 90015 (213) 736-7417 justin.levitt@lls.edu
* Institutional affiliation for purpose of identification only

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

September 1, 2017

LAURA W. BRILL KENDALL BRILL & KELLY LLP 10100 Santa Monica Blvd.,
Suite 1725 Los Angeles, California 90067

i

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ........................................ii INTEREST OF THE AMICI ....................................... 1 SUMMARY OF THE ARGUMENT ............................ 2 ARGUMENT ................................................................ 9

A. A Cause of Action for Partisan

Gerrymandering Is Justiciable And

Requires

Proof

of

Invidious

Discrimination Against Voters Based on

Their Political Party Affiliation................. 9

B. A Properly Structured Claim for Partisan Gerrymandering Is Consistent with the Voting Rights Act......................................... 19

C. A Properly Structured Claim for Partisan Gerrymandering Would Help Protect Against the Manipulation of Minority Voters ............................................................. 25

D. A Properly Structured Claim for Partisan Gerrymandering Will Help Avoid Detrimental Spillover to Cases Brought Under Doctrines Involving Race ............. 33
CONCLUSION ......................................................... 36

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) ..................................................................... 1

Arcia v. Florida Sec'y of State, 772 F.3d 1335 (11th Cir. 2014) ............................................................... 2

Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 1974) .. 3

Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) ................. 28

Bartlett v. Strickland, 556 U.S. 1 (2009) ........... 28, 34

Batson v. Kentucky, 476 U.S. 79 (1986) ................... 16

Beer v. United States, 425 U.S. 130 (1976) ................ 2

Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017) ............................................................ 18

Bush v. Vera, 517 U.S. 952 (1996).............................. 2

Chisom v. Roemer, 501 U.S. 380 (1991) ..................... 2

City of Greensboro v. Guilford Cnty. Bd. of Elections, __ F. Supp. 3d __, 2017 WL 1229736 (M.D.N.C. Apr. 3, 2017) ........................................................ 13

Clarke v. City of Cincinnati, 40 F.3d 807 (6th Cir. 1994)..................................................................... 21

iii
Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563 (N.D. Ill. 2011) (three-judge court) ......................................... 30, 35
Cooper v. Harris, 137 S. Ct. 1455 (2017) ................. 30
Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. 2016) (three-judge court), aff’d, 137 S. Ct. 2211 (2017) .................................................... 34
Cox v. Larios, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) (three-judge court), aff’d, 542 U.S. 947 (2004) ... 13
Davis v. Bandemer, 478 U.S. 109 (1986) ............. 9, 16
Easley v. Cromartie, 532 U.S. 234 (2001) ............ 1, 32
Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ......... 1, 2, 4
Favors v. Cuomo (Favors I), 881 F. Supp. 2d 356 (E.D.N.Y. 2012)...................................................... 2
Fisher v. University of Texas, 133 S. Ct. 2411 (2013) 4
Fisher v. University of Texas, 136 S. Ct. 2198 (2016) 4
Gaffney v. Cummings, 412 U.S. 735 (1973) ..10, 11, 17
Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) ..................................................... 6, 8, 31
Georgia v. Ashcroft, 539 U.S. 461 (2003) ................... 1
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .............. 2
Goosby v. Hempstead, N.Y., 956 F. Supp. 326 (E.D.N.Y. 1997).................................................... 21

iv
Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 1972) (three-judge court) ............................................... 25
Harris v. Ariz. Ind. Redistricting Comm’n, 136 S. Ct. 1301 (2016) .................................................... 14, 22
Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) .............................................................................. 10
Houston Lawyers’ Ass’n v. Attorney Gen. of Texas, 501 U.S. 419 (1991) ...................................................... 2
Hulme v. Madison Cnty., 188 F. Supp. 2d 1041 (S.D. Ill. 2001) ......................................................... 13, 15
In re Senate Joint Resolution of Legislative Apportionment 2-B, 89 So.3d 872 (Fla. 2012)..... 14
In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597 (Fla. 2012) .. 14
Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss. 1984) (three-judge court), aff’d sub nom., Miss. Republican Executive Comm. v. Brooks, 469 U.S. 1002 (1984) .......................................................... 26
Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984) ... 31
Kirksey v. Bd. of Supervisors, 554 F.2d 139 (5th Cir. 1977)....................................................................... 2
Lawrence v. Texas, 539 U.S. 558 (2003)..................... 4
League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc) ........................ 2

v
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) .................................................. 1, 9
League of Women Voters of Florida v. Detzner, 179 So.3d 258 (Fla. 2015) ........................................... 14
League of Women Voters of Florida v. Detzner, 172 So.3d 363 (Fla. 2015) ........................................... 14
Lee v. Va. State Bd. of Elections, 188 F. Supp. 3d 577 (E.D. Va. 2016), aff’d, 843 F.3d 592 (4th Cir. 2016) .............................................................................. 35
McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005)....14, 16, 18
N.C. State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016), cert. denied, 137 S. Ct. 1399 (2017) .......................................................... 31
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ...................................................... 1
Obergefell v. Hodges, 135 S. Ct. 2594 (2015) ............. 4
Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) ............................................................. 34
One Wis. Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016), appeal docketed, No. 163091 (7th Cir. Aug. 3, 2016) ................................ 31
Perez v. Abbott, __ F. Supp. 3d __, 2017 WL 1787454 (W.D. Tex. May 2, 2017) (three-judge court) .............................................................27, 29, 32, 33

vi
Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) ................................................................... 15
Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016) ........ 13, 15
Rodgers v. Lodge, 458 U.S. 613 (1982)..................... 33 Romer v. Evans, 517 U.S. 620 (1996) ......................... 4 Schnell v. Davis, 336 U.S. 933 (1949) ........................ 2 Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md.
2016) (three-judge court)..................................... 11 Shaw v. Hunt, 517 U.S. 899 (1996) ...................... 2, 35 Shaw v. Reno, 509 U.S. 630 (1993) .................... 18, 35 Shelby County, Ala. v. Holder, 133 S. Ct. 2612 (2013) Smith v. Allwright, 321 U.S. 649 (1944) .................... 2 Smith v. Clinton, 687 F.Supp. 1310 (E.D. Ark. 1988)
(three-judge court) .......................................... 21-22 Terry v. Adams, 345 U.S. 461 (1953) ......................... 2 Thornburg v. Gingles, 478 U.S. 30 (1986)............ 2, 20 Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974) ... 3 United States v. Charleston County, S.C., 365 F.3d
341 (4th Cir. 2004)............................................... 32 United States v. Hays, 515 U.S. 737 (1995) ............... 2

vii
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 612 (2017) ........... 31
Vieth v. Jubelirer, 541 U.S. 267 (2004) ................ 7, 11 Vill. of Arlington Heights v. Metro. Hous. Dev’p Corp.,
429 U.S. 252 (1977) ............................................. 15 Voinovich v. Quilter, 507 U.S. 146 (1993) ............... 35 White v. Regester, 422 U.S. 935 (1975)....................... 2 White v. Regester, 412 U.S. 755 (1973)..................... 25 White v. Weiser, 412 U.S. 783 (1973) ....................... 12 Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)
................................................................................ 2
FEDERAL STATUTES AND LEGISLATIVE MATERIALS Voting Rights Act § 2, 52 U.S.C. § 10301...... 19, 20, 21 S. Rep. No. 417, 97th Cong., 2d Sess. (1982) ............ 20 STATE CONSTITUTION Fla. Const. art. III, § 16(c) ......................................... 14
OTHER AUTHORITIES Appellees’ Br. ............................................................. 17 Heather Gerken et al. Amicus Br...............................17

viii
Bernard Grofman & Ronald Keith Gaddie Amici Br. ................................................................................ 17
Eric McGhee Amicus Br. ............................................ 17
Nat’l Republican Cong. Comm. Amicus Br...........22-23
Bruce E. Cain & Emily R. Zhang, Blurred Lines: Conjoined Polarization and Voting Rights, 77 Ohio St. L.J. 867 (2016) ................................................. 33
Ming Hsu Chen & Taeku Lee, Reimagining Democratic Inclusion: Asian Americans and the Voting Rights Act, 3 U.C. Irvine L. Rev. 359 (2013) ................................................................................ 30
Art Harris, Blacks, Unlikely Allies Battle Miss. Redistricting, Wash. Post, June 1, 1982...............26
Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593 (2002)...................34
Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541 (2004) ...... 35
Justin Levitt, Intent is Enough: Invidious Partisanship in Redistricting, 59 WM. & MARY L. REV. (forthcoming 2017), https://ssrn.com/ abstract=3011062 .................................................. 11
Michael Li & Laura Royden, Minority Representation: No Conflict with Fair Maps, https://www.brennancenter.org/analysis/minorityrepresentation-fair-maps ...................................... 23

ix
Glenn Magpantay, Asian American Voting Rights and Representation: A Perspective from the Northeast, 28 Fordham Urb. L.J. 739 (2001) ....... 30

1
INTEREST OF AMICI CURIAE1
The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a non-profit, non-partisan law organization established under the laws of New York to assist Black and other people of color in the full, fair, and free exercise of their constitutional rights. Founded in 1940 under the leadership of Thurgood Marshall, LDF focuses on eliminating racial discrimination in education, economic justice, criminal justice, and political participation.
LDF has been involved in numerous precedent-setting litigation relating to minority political representation and voting rights before state and federal courts, including lawsuits involving constitutional and legal challenges to discriminatory redistricting plans or those otherwise implicating minority voting rights. See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120 (2016); Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257 (2015); Shelby County, Ala. v. Holder, 133 S. Ct. 2612 (2013); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); Georgia v. Ashcroft, 539 U.S. 461 (2003); Easley v. Cromartie, 532 U.S. 234 (2001);
1 Pursuant to Supreme Court Rule 37.3, counsel for amicus curiae certify that all parties have consented to the filing of this brief through letters from the parties on file with the Court. Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae certify that no counsel for a party authored this brief, in whole or in part, and that no person or entity, other than amicus curiae and their counsel, made a monetary contribution to its preparation or submission.

2
Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996); United States v. Hays, 515 U.S. 737 (1995); League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc); Chisom v. Roemer, 501 U.S. 380 (1991); Houston Lawyers’ Ass’n v. Attorney Gen. of Texas, 501 U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30 (1986); Beer v. United States, 425 U.S. 130 (1976); White v. Regester, 422 U.S. 935 (1975) (per curiam); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Terry v. Adams, 345 U.S. 461 (1953); Schnell v. Davis, 336 U.S. 933 (1949) (per curiam); Smith v. Allwright, 321 U.S. 649 (1944); Kirksey v. Bd. of Supervisors, 554 F.2d 139 (5th Cir. 1977); Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973).
LatinoJustice PRLDEF (formerly known as the Puerto Rican Legal Defense and Education Fund) (“LJP”), founded in New York City in 1972, is a non-profit, non-partisan legal defense fund whose continuing mission is to protect the greater panLatino diaspora in the full, fair, and free exercise of their constitutional and civil rights. LJP has worked to secure the voting rights and political participation of Latino voters since 1972, when it initiated a series of suits to create bilingual voting systems throughout the United States. LJP has been involved in state and federal litigation regarding Latino political representation and voting rights, including constitutional and legal challenges to discriminatory redistricting plans or those otherwise implicating voting rights. See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120 (2016); Shelby County, Ala. v. Holder, 133 S. Ct. 2612 (2013); Arcia v. Florida Sec'y of State, 772 F.3d 1335 (11th Cir. 2014); Favors v. Cuomo (Favors I),

3
881 F. Supp. 2d 356 (E.D.N.Y. 2012); Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974); Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 1974).
Asian Americans Advancing Justice - AAJC is a nonprofit, nonpartisan organization that seeks to promote a fair and equitable society for all by working for civil and human rights and empowering Asian American, Native Hawaiian, and Pacific Islander (AANHPI) communities. Advancing Justice - AAJC advances its mission through advocacy, public policy, public education, and litigation. Advancing Justice - AAJC has maintained a strong interest in the voting rights of AANHPIs and strives to protect AANHPI’s access to the polls. Advancing Justice - AAJC was a key player in collaborating with other civil rights groups to reauthorize the Voting Rights Act in 2006, and, in past elections, has conducted poll monitoring and voter protection efforts across the country. Advancing Justice - AAJC has a long-standing history of serving the interests of immigrant and language minority communities, and is very concerned with issues of discrimination that might face them.
Asian Americans Advancing Justice - Asian Law Caucus, founded in 1972, is the nation’s first legal and civil rights organization serving lowincome Asian Americans. Advancing Justice - ALC strives to create informed and educated Asian American communities empowered to assert their rights and to participate actively in American society. As such, Advancing Justice - ALC has for several decades operated a voting rights program that ensures equal access to voter registration,

4
language assistance in voting for limited-English proficient voters, and fair redistricting that empowers Asian American communities. Based on this commitment to protecting the voting rights of marginalized communities, Advancing Justice - ALC has a strong interest in the outcome of this case.
Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) is a national organization committed to achieving full recognition of the civil rights of people who are lesbian, gay, bisexual, or transgender (“LGBT”), or living with HIV—many of whom are members of racial and ethnic minorities— through impact litigation, education, and public policy advocacy. Lambda Legal works to challenge the intersectional harms caused by invidious discrimination based on sexual orientation, gender identity, race, and ethnicity. It has participated in this Court and lower courts in numerous cases addressing First Amendment, Equal Protection, and other civil rights principles affecting LGBT individuals, members of additional minority groups, and voter participation. For example, Lambda Legal was party counsel in Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and Obergefell v. Hodges, 135 S. Ct. 2594 (2015); and participated as amicus in Evenwel, 136 S. Ct. 1120; Fisher v. University of Texas, 133 S. Ct. 2411 (2013); and Fisher v. University of Texas, 136 S. Ct. 2198 (2016). In addition, through such initiatives as Proyecto Igualdad, engaged in outreach in Latino communities, and its Fair Courts Project, seeking to increase diversity and eliminate bias in the courts, Lambda Legal works to ensure full civic participation by LGBT, racial, and ethnic minorities.

5
The Leadership Conference on Civil and Human Rights (“The Leadership Conference”) is a diverse coalition of more than 200 national organizations charged with promoting and protecting the civil and human rights of all persons in the United States. It is the nation’s largest and most diverse civil and human rights coalition. For more than half a century, The Leadership Conference, based in Washington, D.C., has led the fight for civil and human rights by advocating for federal legislation and policy, securing passage of every major civil rights statute since the Civil Rights Act of 1957. The Leadership Conference works to build an America that is inclusive and as good as its ideals. Towards that end, we have participated as an amicus party in cases of great public importance that will affect many individuals other than the parties before the court and, in particular, the interests of constituencies in The Leadership Conference coalition.
Amici have a significant interest in ensuring the full, proper, and continued enforcement of the United States Constitution and the federal, state, and local statutes guaranteeing full and equal political participation, including the Voting Rights Act of 1965.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
As Judge Kozinski of the U.S. Court of Appeals for the Ninth Circuit recognized nearly 30 years ago, “elected officials engaged in the singleminded pursuit of incumbency can run roughshod

6

over the rights of protected minorities.” Garza v.

County of Los Angeles, 918 F.2d 763, 778 (9th Cir.

1990) (Kozinski, J., concurring and dissenting in

part). The same is true with respect to the pursuit of

partisan advantage.

Both Democratic and

Republican legislatures have used the power of the

state to enact extreme partisan gerrymanders,

retaining or enhancing their own grip on power and

subordinating voters who support an opposing party.

Many of these gerrymanders were constructed at

least in part at the expense of minority voting rights.

Although there are sizable minority communities in parts of Wisconsin, the instant case does not appear to rest on the manipulation of minority voters. In other instances, however, the pursuit of extreme partisan gerrymanders, particularly in those parts of our country where race and party are deeply intertwined, may well impact minority representation and political participation. For these reasons, any decision on the merits in this case may have wide-reaching implications for minority voters. Amici write in the hope that we may assist this Court in considering the ramifications of the doctrine and practice of partisan gerrymandering on minority voters beyond the instant case. In particular, amici explain how a properly structured partisan gerrymandering claim that requires a showing of intent to subordinate voters because of their party affiliation assists in establishing an administrable standard that guards against invidious partisanship in the redistricting process without undermining critical protections for minority voters.

7
When this Court as a whole last meaningfully considered the doctrine of partisan gerrymandering, all nine Justices recognized that “an excessive injection of politics” in the redistricting process is incompatible with the Constitution. See Vieth v. Jubelirer, 541 U.S. 267, 293 (2004) (plurality) (emphasis in original); id. at 312, 316-17 (Kennedy, J., concurring in the judgment); id. at 318, 326 (Stevens, J., dissenting); id. at 343-44 (Souter, J., and Ginsburg, J., dissenting); id. at 355, 360 (Breyer, J., dissenting). No consensus emerged, however, with respect to identifying when the role of politics in redistricting becomes excessive.
As Respondents make clear, such standards can be formulated and can be fully compatible with federal law protecting minority representation and political participation. To the extent that the Court is inclined to set a justiciable standard for adjudicating claims of partisan gerrymandering, it should ensure that such claims succeed only when plaintiffs prove invidious discrimination distinct from legitimate political choices. In this case, the three-judge court found that the political party temporarily controlling state government intended to lock in its own power over the jurisdiction as a whole, not through the persuasive force of its policies, but by manipulating district lines to entrench the power of certain voters and subordinate others based on their partisan political affiliation. See J.S. App. 117a n.170. Recognizing that such extreme conduct entails impermissible invidious discrimination is consistent with the Court’s prior jurisprudence, and calls for the deployment of familiar evidentiary tools.

8
Recognizing the constitutional invalidity of the invidious discrimination demonstrated in this case— subordination of voters within a jurisdiction as a whole because of their party affiliation—does not jeopardize the interests of minority voters. Indeed, because “political gerrymandering tends to strengthen the grip of incumbents at the expense of emerging minority communities,” Garza, 918 F.2d at 779 (Kozinski, J., concurring and dissenting in part), a cause of action addressing egregious partisan gerrymandering may in some cases protect minority voters from improper manipulation by elected officials, including where existing causes of action afford no other remedy in practice. In certain contexts, a properly structured partisan gerrymandering claim could lessen the need for courts to undergo the difficulty of disentangling race and party, which this Court and others have recognized can be impermissible proxies for one another.
Finally, a viable cause of action addressing egregious partisan gerrymandering may assist the courts. Our own efforts, in litigation and beyond, show that causes of action in which race and racial discrimination remain a central doctrinal concern are essential in addressing some of the deepest and most pernicious forms of discrimination. But we have also observed that actors whose primary concerns are partisan will occasionally attempt to misuse race-based voting claims for their own ends, twisting facts or law in the process. A properly structured cause of action for partisan gerrymandering can help courts better channel claims down the appropriate litigation paths,

9

avoiding unwelcome doctrinal distortion and providing full redress for invidious discrimination of all forms.

ARGUMENT

A. A Cause of Action for Partisan

Gerrymandering Is Justiciable and

Requires

Proof

of

Invidious

Discrimination Against Voters Based on

Their Political Party Affiliation

This Court has previously determined claims of unconstitutional partisan gerrymandering to be justiciable. See, e.g., League of United Latin American Citizens (“LULAC”) v. Perry, 548 U.S. 399, 414 (2006); Davis v. Bandemer, 478 U.S. 109, 125 (1986).

Among the questions presented in this case, however, are issues concerning the particular standard or standards for adjudicating claims of partisan gerrymandering under the Fourteenth Amendment. The three-judge court correctly determined that invidious intent was an essential element of such a standard, and found facts supporting proof of invidious intent. J.S. App. 109a145a. Indeed, the court focused on a particularly extreme invidious intent: the “intent to make the political system systematically unresponsive to a particular segment of the voters based on their political preference,” J.S. App. 117a n.170—that is, the intent to entrench one party and subordinate voters of another, statewide. A justiciable standard for claims that partisan gerrymandering violates the Fourteenth Amendment, whatever its other

10
elements, ought to require proof of invidious intent to subordinate voters because of their partisan affiliation. And this Court need not determine the outer bounds of such a requirement to recognize that an intent to stack the deck against voters jurisdiction-wide because of their party, an intent demonstrated in this case to the satisfaction of the three-judge court, is constitutionally invidious.
Requiring proof of this sort of invidious intent is consistent with this Court’s doctrine. In Gaffney v. Cummings, 412 U.S. 735 (1973), this Court found no constitutional concern with a plan intended to allocate political power to parties in accordance with each party’s voting strength. But the Court also noted that an otherwise acceptable redistricting plan would be vulnerable under the Fourteenth Amendment if it is invidiously discriminatory: intended to “minimize or cancel out the voting strength of racial or political elements of the voting population.” Id. at 751 (internal quotation marks and citations omitted).
The Constitution also prohibits the invidious intent to harm on the basis of partisan affiliation in other contexts. A public employer may demote an employee for many reasons that do not offend the Constitution. But just last Term, this Court clarified that the First Amendment, as incorporated against state and local employers by the Fourteenth Amendment, normally prevents a public employer from demoting an employee out of a desire to punish the employee’s support for a political candidate. See Heffernan v. City of Paterson, 136 S. Ct. 1412, 141718 (2016). That is, “the government’s reason for

11
demoting [the employee] is what counts here.” Id. at 1418. See also Shapiro v. McManus, 203 F. Supp. 3d 579, 596 (D. Md. 2016) (three-judge court) (“Because there is no redistricting exception to this wellestablished First Amendment jurisprudence, the fundamental principle that the government may not penalize citizens because of how they have exercised their First Amendment rights thus provides a wellunderstood structure for claims challenging the constitutionality of a State’s redistricting legislation—a discernable and manageable standard.”).
A gerrymandering cause of action that requires proof of invidious intent to subordinate voters because of their partisan affiliation does not risk undue interference with the legitimate political process. As this Court has recognized, redistricting is “root-and-branch a matter of politics.” Vieth, 541 U.S. at 285 (plurality); see also Gaffney, 412 U.S. at 752-73. But this does not mean that redistricting is, or need be, root-and-branch an attempt to subordinate voters on the basis of their political affiliation. Legislatures frequently make choices that are inherently political—for example, how much revenue to allocate to different government programs, or what should be eligible for tax deductions. These are charged political questions, but they do not involve a conscious effort to subordinate voters because they are Republicans or Democrats. See Justin Levitt, Intent is Enough: Invidious Partisanship in Redistricting, 59 WM. & MARY L. REV., at *23-24 (forthcoming 2017), https://ssrn.com/abstract=3011062.

12
Beyond the requirements of federal and state law, including those that protect minority voters from discrimination, there are many political and practical choices in the drawing of any redistricting map. In most states, these include choices about whether to follow certain county, city, or precinct lines but not others, or certain roads, rivers, or rail lines but not others; about the degree to which lines should follow geometric patterns or patterns of residential development; about allowing certain activists or communities to congregate within one district or to span district lines; and about the degree to which a district should have a distinct character or span multiple competing interests, and which of those interests should dominate. They include choices—even self-regarding choices—about whether to protect incumbents, at least in the sense of consistently protecting the relationship of incumbents to their constituents by maintaining the cores of prior districts, rather than selectively protecting incumbents from their constituents by siphoning off opposing partisans. See LULAC, 548 U.S. at 440-41; White v. Weiser, 412 U.S. 783, 791 (1973). They include choices about whether to resolve each of these decisions in the same way throughout a jurisdiction, or whether to resolve them differently, with different priorities, in different portions of the jurisdiction. All of these are properly political and practical choices. Prohibiting state action with the invidious intent to subordinate on the basis of partisan affiliation leaves each of these legitimate political choices intact. See Levitt, supra, at *30-34.

13
A state actor’s invidious intent to subordinate voters on the basis of their partisan affiliation is also distinct from the natural desire of legislators chosen in partisan elections to seek legitimate partisan advantage. The normal means by which a legislator gains partisan advantage is through action that increases the legislator’s appeal to voters with partisan policy preferences. Such conduct is quite distinct from state action designed to lock in a legislator’s electoral success not by appealing to voters, but by targeting opponents through changes in the electoral landscape itself.
Both state and federal courts have been able to identify cognizable invidious intent, distinct from the standard rough-and-tumble of other political choices. In Cox v. Larios, a three-judge court determined that population disparities that would not otherwise have raised prima facie constitutional concern were constitutionally invalid because they were driven by invidious partisan intent. 300 F. Supp. 2d 1320, 1329-30, 1334 (N.D. Ga. 2004) (threejudge court). This Court summarily affirmed that decision. 542 U.S. 947 (2004). Similarly, the Fourth Circuit recently invalidated a county redistricting plan that would otherwise have passed muster, based on proof of the invidious partisan intent driving the districts’ population deviations. Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 345-46, 351 (4th Cir. 2016); see also City of Greensboro v. Guilford Cnty. Bd. of Elections, __ F. Supp. 3d __, 2017 WL 1229736, at *1, *3, *6 (M.D.N.C. Apr. 3, 2017); Hulme v. Madison Cnty., 188 F. Supp. 2d 1041, 1050 (S.D. Ill. 2001). Florida state courts have also examined redistricting plans

14
for invidious partisan intent under their state constitution. See Fla. Const. art. III, § 16(c); In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597, 598, 617-19, 641-45, 648-51, 654, 659-62, 669-73, 676-78, 679-80 (Fla. 2012); In re Senate Joint Resolution of Legislative Apportionment 2-B, 89 So.3d 872, 881-82, 887-91 (Fla. 2012); League of Women Voters of Florida v. Detzner, 172 So.3d 363, 378-86, 391-93, 402-13 (Fla. 2015); League of Women Voters of Florida v. Detzner, 179 So.3d 258, 271-74, 279-80, 284 (Fla. 2015). And, of course, the threejudge court in the instant case was able to distinguish invidious partisan intent from the many other legitimate political and practical choices involved in drawing the Wisconsin state legislative map. J.S. App. 109a-145a.
In other cases, the evidence has not supported allegations of invidious partisan intent in the redistricting process. For instance, just last Term, this Court affirmed the rejection of a claim premised on invidious partisanship in the redistricting process, based not on the impossibility of making such a determination, but on the insufficiency of proof offered by the plaintiffs. Harris v. Ariz. Ind. Redistricting Comm’n, 136 S. Ct. 1301, 1307 (2016).
All of these courts used familiar tools to test for invidious partisan intent in the redistricting process, seeking “an understanding of official objective emerg[ing] from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.” McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005). Following this Court’s direction for assessing official

15
purpose in a variety of contexts, each tribunal conducted a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev’p Corp., 429 U.S. 252, 266 (1977). Particularly when a redistricting plan proved to be a significant outlier, its partisan impact occasionally provided “an important starting point,” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (quoting Arlington Heights, 429 U.S. at 266), for such an analysis. However, recognizing that legitimate redistricting factors will inevitably yield a partisan impact, no court relied on an assessment of impact alone. Instead, these courts further examined the redistricting context, including but not limited to: statements by mapmakers themselves, the conduct of the legislative session, the progression of draft maps up to the final product, and the map’s fit with traditional redistricting principles. See J.S. App. 123a-145a; Raleigh Wake Citizens Ass’n, 827 F.3d at 346; City of Greensboro, 2017 WL at *7-8; League of Women Voters of Florida, 172 So.3d at 380-86, 39091; Hulme, 188 F. Supp. 2d at 1050-51. Moreover, these courts also considered whether this evidence of invidious intent was effectively rebutted by evidence revealing that the district boundaries were actually driven not by invidious partisan intent but by legitimate legislative motives. Id. In the instant case, the three-judge court undertook this latter assessment as part of the inquiry into the Wisconsin map’s “justification.” J.S. App. 203a-211a.
This inquiry into invidious partisan intent is not facile. Plaintiffs must prove that state action was taken “at least in part ‘because of,’ not merely ‘in

16
spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279. Courts do not lightly make such determinations. Here, the court found that plaintiffs proved not merely that the legislature had partisan information or was aware of a partisan impact, but that it drew the map specifically “because of” its ability to entrench one party in power and subordinate voters affiliated with an opposing party, statewide. J.S. App. 117a; see also Feeney, 442 U.S. at 279.
In other words, the court, properly, did not allow plaintiffs to merely assume that the legislature operated with invidious intent. The standard is a demanding one, and necessarily means that a doctrinal requirement to prove invidious partisan intent will inevitably leave some invidious partisanship unaddressed. Cf. McCreary County, 545 U.S. at 863 (recognizing that some legitimate intent cases may founder on the absence of proof). That litigation reality, however, does not detract from the value of the ability to confront and correct invidious discrimination that can be proven. Cf. Batson v. Kentucky, 476 U.S. 79, 102, 105-08 (1986) (Marshall, J., concurring) (endorsing doctrine to confront racially discriminatory peremptory challenges, while acknowledging that illegitimate peremptory challenges beyond the doctrine’s reach are inevitable).
Even though a doctrinal requirement to prove invidious partisan intent leaves some invidious partisanship unaddressed, the requirement is necessary to a manageable constitutional claim. See, e.g., Bandemer, 478 U.S. at 127. Virtually every

17
change to a district line will have some impact, substantial or trivial, on the electoral fortunes of candidates within the district. Gaffney, 412 U.S. at 753 (“It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area.”). Depending on local political demography, actions consistent with traditional redistricting principles or required by existing law will likely have partisan consequences. Courts cannot police these consequences based on their impact alone without subjugating otherwise legitimate choices to a standard difficult to locate in the Constitution. And whatever the other elements of a manageable partisan gerrymandering claim, a requirement to show invidious partisan intent will preserve constitutional flexibility for state and local redistricting bodies to pursue these other legitimate principles independent of their political impact.
Consistent with this premise, no party in the instant case has requested, the three-judge court did not propose, and this Court should not adopt, any single quantitative metric as irrebuttable proof of an unconstitutional partisan gerrymander. Various quantitative measures have been offered to this Court, in this case and others, to assist the Court in assessing gerrymandering. See Appellees’ Br. passim; see generally Bernard Grofman & Ronald Keith Gaddie Amici Br. 12-18, 26-31; Eric McGhee Amicus Br. passim; Heather Gerken et al. Amicus Br. 13-25. This brief takes no position on the comparative merits or limitations of any particular quantitative measure: to the extent any are useful, they are most useful as diagnostic tools of qualitative

18
constitutional irregularity. Modest “scores” using any of these measures may flag plans produced by legislatures heeding only traditional redistricting principles without improper motivation, and therefore constitutionally unremarkable. Extreme “scores,” on any of several of these quantitative measures, may indicate partisan results sufficiently anomalous to constitute, inter alia, circumstantial evidence of invidious partisan intent. But as the three-judge court in this case emphasized, a jurisdiction should always have the opportunity to demonstrate that even an extreme quantitative score was actually caused by legislative focus on constitutionally legitimate factors, including traditional redistricting principles.2 See, e.g., J.S. App. 203a-218a.
2 As this Court recently emphasized in a different redistricting context, this inquiry into legislative intent turns on “the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications the legislature in theory could have used but in reality did not.” Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017); cf. McCreary County, 545 U.S. at 864 (refusing to credit a hypothetically permissible purpose that is merely a sham); J.S. App. 120a-122a (refusing to insulate an invidious partisan gerrymander just because the outcome also happens to be consistent with the hypothetical application of traditional redistricting principles).
Bethune-Hill concerned a claim based on the impermissible use of race in redistricting, following Shaw v. Reno, 509 U.S. 630 (1993). While Shaw claims are “analytically distinct” from claims premised on racially discriminatory intent, LULAC, 548 U.S. at 513-14 (Scalia, J., concurring in the

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B. A Properly Structured Claim for Partisan Gerrymandering Is Consistent with the Voting Rights Act

A

properly

structured

partisan

gerrymandering claim—one that requires proof of

invidious intent to subordinate voters because of

their partisan affiliation—is entirely consistent with

the Voting Rights Act of 1965 (“VRA”). Of course,

compliance with the VRA does not insulate an

unconstitutional partisan gerrymander from judicial

scrutiny. Legislatures might produce maps that

comply with the VRA along the way to implementing

an unlawful plan premised on invidious partisan

intent, just as legislatures might produce plans that

are fair along partisan lines even as they violate the

VRA (or Fourteenth and Fifteenth Amendments) by

discriminating based on race. Neither is lawful. But

compliance with the VRA and the absence of

invidious partisan intent are not in any way

inherently in conflict.

Section 2 of the VRA, 52 U.S.C. § 10301, imposes a “permanent, nationwide ban on racial discrimination in voting.” Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013). It prohibits any “voting

judgment in part and dissenting in part), the legislature’s actual motivation is even more pivotal in a discrimination case. Whether that discrimination involves impermissible racial discrimination or the invidious intent to subordinate voters based on partisan affiliation, jurisdictions should not be permitted to whitewash actual manifestations of discrimination with hypothetical interests invented for litigation purposes.

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qualification or prerequisite to voting or standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Id. § 10301(a).
In 1982, Congress amended Section 2 to make clear that a statutory violation can be established by showing discriminatory intent, a discriminatory result, or both. See Thornburg v. Gingles, 478 U.S. 30, 34-37, 43-45 (1986); see also 52 U.S.C. § 10301(a)(b); S. Rep. No. 417, 97th Cong., 2d Sess. (1982). In the redistricting context, a jurisdiction may comply with the prohibition on discriminatory intent by drawing district lines without the intent to harm voters based on their race or ethnicity. It is obvious that a jurisdiction can satisfy this standard without drawing lines intended to subordinate voters on the basis of their partisan political affiliation.
Similarly, a jurisdiction may comply with the prohibition on discriminatory results without setting out to subordinate voters on the basis of their political affiliation. Based on local demographic, historical, and political contexts, jurisdictions may have an obligation under Section 2 to draw districts preserving minority voters’ equal “opportunity . . . to elect representatives of their choice.” 52 U.S.C. § 10301(b). Where a compact and sizable minority community is politically cohesive, and where voting is sufficiently polarized that the surrounding electorate would otherwise usually prevent the minority community from electing a candidate of choice, jurisdictions have an obligation to ensure that districts, in the totality of circumstances, do not

21
create a discriminatory abridgement of electoral opportunity. Gingles, 478 U.S. at 44-45, 50-51.
Compliance with Section 2 of the VRA will thus often require attention to, inter alia, local political preferences. Id. at 45 (recognizing that “whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality and on a functional view of the political process”); id. at 79 (noting that this determination “requires an intensely local appraisal of the design and impact of the contested electoral mechanisms”); see also Goosby v. Hempstead, N.Y., 956 F. Supp. 326, 331 (E.D.N.Y. 1997) (using a myriad of factors identified by a bipartisan Congress, “district judges are expected to roll up their sleeves and examine all aspects of the past and present political environment in which the challenged electoral practice is used”).
The VRA does not, however, require districts drawn generically with the intent to aid or harm Democrats, Republicans, or members of any other political party. And a district that is drawn favoring Democrats or favoring Republicans but that does not provide a minority community the equitable “opportunity . . . to elect representatives of their choice,” 52 U.S.C. § 10301(b), fails to satisfy the jurisdiction’s VRA obligations. See, e.g., Clarke v. City of Cincinnati, 40 F.3d 807, 812 (6th Cir. 1994) (“[T]he Act’s guarantee of equal opportunity is not met when, in the words of Judge Richard Arnold, ‘[c]andidates favored by blacks can win, but only if the candidates are white.’”) (quoting Smith v.

22
Clinton, 687 F.Supp. 1310, 1318 (E.D. Ark. 1988) (three-judge court)).
This means that while the VRA requires attention to local political preferences, it does not require districts drawn for voters because of their partisan affiliation. A fortiori, it in no way requires an invidious intent to harm voters based on their partisan affiliation, much less an intent to subordinate across the jurisdiction as a whole. Indeed, many courts, including this Court, have required jurisdictions to comply with their obligations under the VRA, without ever intimating that doing so would require invidious partisan intent. And just last Term, in a case involving population disparities, this Court unanimously affirmed the rejection of a claim of invidious partisan intent when the facts instead supported the conclusion that the disparities were driven by goodfaith efforts to comply with the VRA. Harris, 136 S. Ct. at 1309-10. That is, this Court recognized that legitimate VRA compliance did not—and does not— produce invidious partisanship.
With invidious partisan intent an essential element of a manageable partisan gerrymandering claim, there is no tension between such a claim and the VRA. Arguments to the contrary ignore the role of invidious intent in a properly structured partisan gerrymandering claim. The National Republican Congressional Committee (“NRCC”), for example, argues as amicus that the “efficiency gap” quantitative measure creates a potential conflict between a partisan gerrymandering claim and Section 2 of the VRA. Nat’l Republican Cong. Comm.

23
Amicus Br. 39-41. The NRCC posits that measures like the efficiency gap would not distinguish between districts drawn for VRA purposes and those drawn as part of a partisan gerrymander, and would “falsely label[ ] Voting Rights Act remedial plans as political gerrymanders. Id. at 40. Historical practice suggests that the NRCC’s hypothetical concerns are unwarranted. See generally Michael Li & Laura Royden, Minority Representation: No Conflict with Fair Maps, https://www.brennancenter.org/analysis/ minority-representation-fair-maps (revealing that most states with majority-minority districts have exhibited little durable partisan bias).
But more important, if invidious intent is an essential element of a partisan gerrymandering claim, this argument is essentially irrelevant. Any individual quantitative measure, including but not limited to the efficiency gap, will likely reflect the partisan impact not only of VRA compliance, but also other legitimate redistricting factors that a jurisdiction may pursue. But no party has advocated for, and this Court should not adopt, any individual quantitative measure as the exclusive determinant of a partisan gerrymandering claim. Even if an extreme efficiency gap—or an extreme value of any other measure—provides circumstantial evidence of a particular plan’s invidious intent, a jurisdiction must have the opportunity to rebut that evidence with evidence that legitimate factors instead drove the redistricting lines. See supra at 12. (In the instant case, this evidence was assessed as part of the inquiry into the Wisconsin map’s “justification.” J.S. App. 203a-211a.) If a jurisdiction’s legitimate attempt to comply with the VRA somehow yielded

24
districts establishing a high partisan “score,” the fact that the score was merely the product of VRA compliance would show there was no invidious intent. And absent proof that invidious partisan intent actually motivated the districts in question, a claim must collapse. Any incidental political impact of VRA compliance in a particular plan is not threatened by a partisan gerrymandering claim with invidious intent at its core because legitimate VRA compliance does not produce an invidious intent.
Beyond the VRA, other legitimate redistricting considerations, including traditional redistricting principles, may similarly further the concerns of minority voters without running afoul of a properly structured partisan gerrymandering claim. For example, in some circumstances, the political interests of minority voters may be served by efforts to keep the community intact within a district, even where there is no federal mandate to do so. Keeping that community intact raises no inference that a legislature intends to subordinate voters based on their partisan affiliation.
Similarly, in some circumstances, the political interests of minority voters may be served by preserving the core of an existing district, and hence the relationship of a population with a longstanding incumbent. Doing so raises no inference that a legislature intends to subordinate voters based on their partisan affiliation. A robust requirement of invidious intent ensures that legitimate compliance with traditional redistricting principles, including those that advance the interests of minority voters, is

25
not inadvertently conflated with illegitimate partisanship.
C. A Properly Structured Claim for Partisan Gerrymandering Would Help Protect Against the Manipulation of Minority Voters
History shows that both major political parties—Democratic and Republican—have drawn electoral districts in pursuit of their partisan interests in ways that have harmed minority voters. Particularly where existing causes of action afford no remedy for such manipulation, a justiciable cause of action for partisan gerrymandering can help protect minority voters.
Following the 1970 Census, Texas Democrats drew multimember districts in Dallas and Bexar counties that were “unconstitutional in that they dilute the votes of racial minorities.” Graves v. Barnes, 343 F. Supp. 704, 708-709, 724-34 (W.D. Tex. 1972) (three-judge court). A three-judge district court did not reach the partisan gerrymandering claim brought by Republican voters and officials because the claim of racial vote dilution delivered the requested relief. Id. at 735. This Court unanimously affirmed that finding of unconstitutional vote dilution. White v. Regester, 412 U.S. 755, 765-70 (1973).
Similarly, in Mississippi, following the 1980 Census, Black voters challenged the state’s congressional redistricting plan, drawn by Democrats, which “divided the concentration of black

26
majority counties located in the northwest or ‘Delta’ portion of the state among three districts.” Jordan v. Winter, 604 F. Supp. 807, 809 (N.D. Miss. 1984) (three-judge court), aff’d sub nom., Miss. Republican Executive Comm. v. Brooks, 469 U.S. 1002 (1984). The districts were drawn to protect three incumbent Democrats from Republican challengers (and thus maintain the Democrats’ control of the state’s congressional delegation), and Republican officials in Mississippi “lobb[ied] the Justice Department on behalf of Mississippi black[ voters] and Republicans to reject the legislature’s redistricting plan.” Art Harris, Blacks, Unlikely Allies Battle Miss. Redistricting, Wash. Post, June 1, 1982. The Department of Justice interposed an objection under Section 5 of the VRA, and a three-judge district court then held that a subsequent iteration of the redistricting plan continued to discriminate against Black voters in violation of Section 2 of the VRA. Jordan, 604 F. Supp. at 809, 813-15.
As noted above, the Democratic Party is not alone in pursuing redistricting plans that seek partisan advantage at the expense of minority voters. In 2003, after Texas Republicans “gained control” of “both houses of the [state] legislature,” they drew a new congressional redistricting plan with “the dual goal of increasing Republican seats in general and protecting [Republican Henry] Bonilla’s incumbency.” LULAC, 548 U.S. at 423-24. In doing so, however, the legislature diluted Latino voting strength in Congressional District 23, in violation of Section 2 of the VRA. Id. at 438-42. As this Court observed, “[t]he State chose to break apart a Latino opportunity district to protect the incumbent

27
congressman from the growing dissatisfaction of the cohesive and politically active Latino community in the district.” Id. at 441. “This b[ore] the mark of intentional discrimination that could give rise to an equal protection violation.” Id. at 440. In 2011, the Republican legislature again redrew the lines, including District 23. “As it did in 2003, the Legislature [ ] reconfigured the district to protect a Republican candidate who was not the Latino candidate of choice from the Latino voting majority in the district.” Perez v. Abbott, __ F. Supp. 3d __, 2017 WL 1787454, at *10 (W.D. Tex. May 2, 2017) (three-judge court). Indeed, a three-judge court described the map as a whole as follows:
It is undisputed that Defendants engaged in extreme partisan gerrymandering in drawing the map, ignoring many if not most traditional redistricting principles in their attempt to protect Republican incumbents, unseat [a Democratic incumbent], gain additional Republican seats, and otherwise gain partisan advantage. Defendants do not really dispute the fact that minority populations are divided or “cracked” in the plan . . . .
Id. at *56. Ultimately, the court found that the state’s treatment of minority voters amounted to multiple violations of Section 2 of the VRA and the Constitution. Id. at *27, *50, *69.
Thus, both major political parties have drawn—and are capable of drawing—district lines to entrench themselves and subordinate the opposition

28
in ways that harm minority voters. As the foregoing examples indicate, the racial harms produced by some extreme partisan gerrymanders can sometimes be remedied under existing law in accordance with the VRA and the Fourteenth and Fifteenth Amendments. Notably, in another case arising out of Wisconsin, a three-judge district court found that the redistricting plan that is at issue in this case violated Section 2 of the VRA by diluting Latino voting strength. See Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 859 (E.D. Wis. 2012) (finding that “plaintiffs are entitled to relief on their Section 2 claim concerning New Assembly Districts 8 and 9, because Act 43 fails to create a majority-minority district for Milwaukee’s Latino community”).
However, extreme partisan gerrymanders may also injure minority voters in ways that do not produce cognizable or provable race-based harm; without a viable cause of action addressing partisan gerrymandering, these minority voters (like all voters) may have no practical means to remedy the invidious partisan action. That is, race-based causes of action do not safeguard minority voters from all partisan harm; in some circumstances, minority voters suffer from extreme partisan gerrymandering just as other voters do.
For instance, to prevail on a Section 2 vote dilution claim, “a party . . . must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent.” Bartlett v. Strickland, 556 U.S. 1, 19-20 (2009) (plurality opinion) (describing the first

29
precondition for a claim under Section 2 of the VRA as set forth in Gingles, 478 U.S. at 50). As a result, in the absence of sufficient evidence of racially discriminatory intent, smaller or less compact populations of minority voters cannot rely upon Section 2 of the VRA to challenge a state or local jurisdiction’s redistricting decisions, including decisions to eliminate crossover districts—districts in which minority voters “make up less than a majority of the voting-age population,” but are “large enough to elect the candidate of [their] choice with help from voters who are members of the majority and who cross over to support the minority’s preferred candidate.” See id. at 13, 19-20, 24.3 Even without a right protected by Section 2 of the VRA, these minority voters might find themselves among those injured by an invidious partisan scheme. See, e.g., Perez, 2017 WL 1787454, at *71-75.
A Section 2 vote-dilution claim also requires a showing of racially polarized voting. See Gingles, 478 U.S. at 50-51 (describing the second and third preconditions for such a claim). Yet, in some circumstances, minority voters may face challenges
3 Absent racially discriminatory intent, Section 2 is not available to challenge such a district; however, once liability has been established (i.e., plaintiffs show inter alia that a majority-minority district can be drawn), crossover districts can be an appropriate means for states and local jurisdictions to comply with the VRA and remedy minority vote dilution. Id. at 23 (noting that “§ 2 allows States to choose their own method of complying with the Voting Rights Act, and . . . that may include drawing crossover districts”).

30
obtaining the data necessary to satisfy this requirement. See, e.g., Ming Hsu Chen & Taeku Lee, Reimagining Democratic Inclusion: Asian Americans and the Voting Rights Act, 3 U.C. Irvine L. Rev. 359, 382-97 (2013) (noting that “the number of cases of Asian American candidates running for political office (in majority white districts) is probably too small to make an accurate judgment of either white support or opposition” and highlighting other data and statistical challenges for Asian American communities to meet “all three Gingles prongs”); Glenn Magpantay, Asian American Voting Rights and Representation: A Perspective from the Northeast, 28 Fordham Urb. L.J. 739, 764 (2001) (noting that “[t]he dearth of data on Asian American voting patterns, . . . compounded by less than perfect census data, has made it difficult to determine definitively whether Asian Americans” meet the second and third Gingles preconditions). In either of the above scenarios, a properly structured claim for excessive partisan gerrymandering might provide much-needed relief to all voters injured because of their party affiliation (including minority voters beyond the reach of a Section 2 vote dilution claim).
In addition, minority voters may be injured by legislatures allegedly acting with impermissible racial intent; the defense often asserted in such cases is that the legislature was motivated more by partisanship than by race. See Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563, 567, 586 (N.D. Ill. 2011) (three-judge court); Cooper v. Harris, 137 S. Ct. 1455, 1473, 1476 (2017). Where the evidence establishes that voters have been targeted based on their race or ethnicity,

31
as a proxy for party, such a defense has no purchase. Courts have repeatedly affirmed that the unjustified targeting of minority voters for injury is unlawful, whether they are targeted based on animus or as the means to achieve ultimate partisan ends. See, e.g., Veasey v. Abbott, 830 F.3d 216, 241 n.30 (5th Cir. 2016) (en banc) (Haynes, J.) (noting that “[i]ntentions to achieve partisan gain and to racially discriminate are not mutually exclusive” and that accordingly, “acting to preserve legislative power in a partisan manner can also be impermissibly discriminatory”), cert. denied, 137 S. Ct. 612 (2017); N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir. 2016) (noting that “intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose”), cert. denied, 137 S. Ct. 1399 (2017); Garza, 918 F.2d at 778 & n. 1 (Kozinski, J., concurring and dissenting in part) (explaining that incumbents may pursue intentional racial discrimination for political gain without displaying racial animus); One Wis. Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896, 924-25 (W.D. Wis. 2016) (holding that a voting measure in Wisconsin “was motivated in part by the intent to discriminate against voters on the basis of race” and that “suppressing the votes of reliably Democratic minority voters in Milwaukee was a means to achieve [a] political objective”), appeal docketed, No. 16-3091 (7th Cir. Aug. 3, 2016); see also Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984) (finding, in the circumstances of that case, that “there is little point . . . in distinguishing discrimination based on an ultimate objective of keeping certain incumbent

32
whites in office from discrimination borne of pure racial animus”); cf. Harris, 137 S. Ct. at 1473 n.7 (noting, in the context of racial gerrymander claims, that strict scrutiny applies “if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests”).
However, as this Court and other federal courts have recognized, race and party are, in certain contexts, closely intertwined. See, e.g., Harris, 137 S. Ct. at 1474 (noting evidence that in North Carolina, “racial identification is highly correlated with political affiliation” (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001))); United States v. Charleston County, S.C., 365 F.3d 341, 352 (4th Cir. 2004) (Wilkinson, J.) (noting evidence that in South Carolina, party affiliation and race were “inextricably intertwined”); Perez, 2017 WL 1787454, at *56 (noting evidence that “race and political party affiliation are strongly correlated in Texas”).4 Particularly in those circumstances, defendants may attempt to shield themselves from claims of racial discrimination by claiming partisan intent—and where the evidence is insufficient to distinguish the two, an egregious gerrymander may inflict its damage without evidence sufficient to prove that
4 Of course, even where such correlation exists, it in no way renders race and party legally equivalent or fungible. As described above, targeting minority voters for injury has long been recognized as unlawful, period, whether as a proxy for party or not. And minority voters continue to face unlawful discrimination within closed party primaries, where opposition on the basis of party is not at issue.

33
voters were specifically targeted because of their race or ethnicity. See, e.g., Perez, 2017 WL 1787454, at *75-78. In those circumstances, the recognition of a properly structured claim for partisan gerrymandering could not only lessen the need for courts to disentangle race and party, but also better ensure that the fundamental right to vote of all minority voters is fully protected. See, e.g., Bruce E. Cain & Emily R. Zhang, Blurred Lines: Conjoined Polarization and Voting Rights, 77 Ohio St. L.J. 867, 871, 904 (2016) (noting that “racial, partisan, and administrative motives have blurred” and that “if the Court decides to adjudicate partisan gerrymandering claims, it would obviate much of the quagmire . . . on how racial motivations may be disentangled from partisan ones”).
D. A Properly Structured Claim for Partisan Gerrymandering Will Help Avoid Detrimental Spillover to Cases Brought Under Doctrines Involving Race
Cases involving claims of racial discrimination under the VRA and the Fourteenth and Fifteenth Amendments play an essential role in remedying the deepest and most pernicious forms of discrimination in voting. See, e.g., LULAC, 548 U.S. at 438-42 (finding vote dilution in violation of Section 2 of the VRA with respect to Congressional District 23 in Texas); Gingles, 478 U.S. at 34, 80 (finding vote dilution in violation of Section 2 of the VRA with respect to state legislative districts in North Carolina); Rodgers v. Lodge, 458 U.S. 613 (1982) (finding vote dilution in violation of Fourteenth and Fifteenth Amendments with respect to county

34

commission in Georgia); White, 412 U.S. at 765-70 (finding vote dilution in violation of the Fourteenth Amendment with respect to state house districts in Texas); cf. Covington v. North Carolina, 316 F.R.D. 117, 124 (M.D.N.C. 2016) (three-judge court) (finding unconstitutional racial gerrymander with respect to state legislative districts in North Carolina), aff’d, 137 S. Ct. 2211 (2017).

No doubt they will continue to do so. As members of this Court have recognized, “racial discrimination and racially polarized voting are not ancient history,” and “[m]uch remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.” Bartlett, 556 U.S. at 25 (plurality opinion) (Kennedy, J.); see also Shelby County, 133 S. Ct. at 2619 (“[V]oting discrimination still exists; no one doubts that.”).

However, in the absence of a legal standard for

claims of partisan gerrymandering, partisan actors—

both Democrats and Republicans—have also

attempted to bring race-based claims to address their

partisan concerns. See, e.g., Samuel Issacharoff,

Gerrymandering and Political Cartels, 116 Harv. L.

Rev. 593, 630-31 (2002) (“One of the perverse

consequences of the absence of any real

constitutional

vigilance

over

partisan

gerrymandering is that litigants must squeeze all

claims of improper manipulation of redistricting into

the . . . category of race.”); see also, e.g., Ohio

Democratic Party v. Husted, 834 F.3d 620, 624-25

(6th Cir. 2016) (state and local Democratic Party

organizations asserting race claims under the

35
Constitution and Section 2 of the VRA); Lee v. Va. State Bd. of Elections, 188 F. Supp. 3d 577, 581 (E.D. Va. 2016) (state Democratic Party asserting race claims under the Constitution and Section 2 of the VRA), aff’d, 843 F.3d 592 (4th Cir. 2016); Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 566-67 (Republican voters and officials asserting race claims under the Constitution and Section 2 of the VRA); Voinovich v. Quilter, 507 U.S. 146, 149 (1993) (Democratic voters and officials asserting race claims under the Constitution and Section 2 of the VRA).
Litigation that stems from partisan concerns but is brought under race-based causes of action could exert pressure on courts to twist facts or doctrine (i.e., to try to fit a square peg into a round hole) in ways that are potentially detrimental to the development of the law. See, e.g., Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541, 569 (2004) (noting “the spillover effects” of litigation brought to “attack political gerrymanders” under “doctrinal rubrics, such as section 2 of the [VRA] or the Shaw cases,” and suggesting that “the cost of repackaging essentially partisan claims of excessive partisanship under one of these labels is something that needs to be considered”). Injury based on race and injury based on partisan affiliation are of different moral and historical character, and should be neither confused nor conflated. Legal doctrines focused on addressing racial discrimination should remain dedicated to that goal, without being subverted to contend with litigation incentives more suitable for claims in which the principal alleged injury is partisan. The

36
recognition of a distinct litigation framework including a properly structured claim for partisan gerrymandering would allow such cases to be channeled toward the most appropriate doctrinal paths and to avoid any negative spillover effect.
CONCLUSION For the foregoing reasons, the judgment of the three-judge court should be affirmed.
DATED: September 1, 2017
Respectfully Submitted,

SHERRILYN A. IFILL

JUSTIN LEVITT

President & Director-Counsel Counsel of Record

JANAI S. NELSON SAMUEL SPITAL LEAH C. ADEN NAACP LEGAL DEFENSE
& EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor

LOYOLA LAW SCHOOL* 919 Albany St. Los Angeles, California 90015 (213) 736-7417 justin.levitt@lls.edu

New York, New York 10006

LAURA W. BRILL

* Institutional affiliation for purpose of identification only

KENDALL BRILL & KELLY LLP 10100 Santa Monica Blvd.,
Suite 1725

Los Angeles, California 90067

Counsel for Amici Curiae

 
 No. 16-1161

In the
Supreme Court of the United States
__________

BEVERLY R. GILL, ET AL., Appellants,
v.

WILLIAM WHITFORD, ET AL., Appellees.
__________
On Appeal from the United States District Court for the Western District of Wisconsin
__________

BRIEF OF 44 ELECTION LAW, SCIENTIFIC EVIDENCE, AND EMPIRICAL LEGAL SCHOLARS
AS AMICI CURIAE IN SUPPORT OF APPELLEES
__________
Andrew Chin University of North Carolina School of Law 160 Ridge Road, CB #3380 Chapel Hill, NC 27599-3380 chin@unc.edu (919) 962-4116

September 1, 2017

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iv

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

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

I. THIS COURT SHOULD AFFIRM THE PANEL’S DETERMINATION THAT THE PARTISAN EFFECT OF THE APPLICATION OF POLITICAL CLASSIFICATIONS IN THE DRAFTING OF ACT 43 WAS NOT JUSTIFIABLE. ................................................ 3

A. Adjudication of a partisan gerrymandering claim requires scrutiny of the computer-assisted districting process, not just the plan it produced. ......................................... 5

B. Decision science provides a computational criterion for showing that a computer-assisted districting process applied political classifications in a way unrelated to any legitimate legislative objective....................................................... 6

C. The Panel’s findings support the

determination that Act 43’s

drafters

applied

political

classifications in a way unrelated

to any legitimate legislative

objective..................................................... 11

ii

1. The Panel found that the process of alternative map generation resulting in Act 43’s drafting was suffused with partisan considerations....................... 11

2. The Panel’s findings support the determination that Act 43’s drafters consulted traditional districting principles and other legitimate legislative objectives only as feasibility constraints. ............ 12

3. Act 43 bore the hallmarks of a drafting process wherein partisan considerations were applied as goals and traditional districting principles were consulted only as feasibility constraints. .......................................... 14

II. THIS COURT SHOULD AFFIRM

THE

PANEL’S

CAUSAL

DETERMINATION THAT PARTISAN

CONSIDERATIONS IN THE

DRAFTING OF ACT 43 HAD THE

LIKELY

EFFECT

OF

ENTRENCHING A REPUBLICAN

PARTISAN

ADVANTAGE

THROUGHOUT THE LIFE OF THE

PLAN. ............................................................. 16

A. The Panel’s causal determination is entitled to deference on appeal, especially in light of the technical nature of this determination. ................... 17

iii
B. The Panel properly weighed the evidence relating to the plaintiffs’ causal and predictive claims. ................... 19
1. The Panel properly weighed the evidence relating to the plaintiffs’ causal claim that partisan considerations in the drafting of Act 43 were a substantial cause of the Republican partisan advantages observed in 2012 and 2014.................. 20
2. The Panel properly weighed the evidence relating to the plaintiffs’ predictive claim that given the extent of the partisan advantages observed in 2012 and 2014, Republicans will likely continue to enjoy a partisan advantage for the life of Act 43. .............................................. 26
CONCLUSION.......................................................... 31
APPENDIX – LIST OF SIGNATORIES .................. 1A

iv

CASES

TABLE OF AUTHORITIES

Page

Anderson v. Bessemer City, 470 U.S. 564 (1985) ............................................. 18

Arizona State Legislature v. Arizona Independent Redistricting Com’n, 135 S.Ct. 2652 (2015) .......................................... 16

Davis v. Bandemer, 478 U.S. 109 (1986).................. 19

Dothard v. Rawlinson, 433 U.S. 321 (1977) ............................................. 18

General Elec. Co. v. Joiner, 522 U.S. 136 (1997) ............................................. 19

Heller v. Shaw Industries, Inc., 167 F.3d 146 (3rd Cir. 1999) ............................... 25

Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802 (3rd Cir. 1997) ......................... 25, 26

Karcher v. Daggett, 462 U.S. 725 (1983) ............................................... 5

Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007) ............................... 21

League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ................................... 9, 17, 27

Sedor v. Frank, 42 F.3d. 741 (2d Cir. 1994).................................. 18

Soria v. Ozinga Bros., Inc., 704 F.2d 990 (7th Cir. 1983) ............................... 18

TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175 (10th Cir. 2007) ........................... 21

v
United States v. Abel, 469 U.S. 45 (1984) ............................................... 19
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983) ............................................. 18
Vieth v. Jubelirer, 541 U.S. 267 (2004) ...................................... passim
Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999) ......................... 24, 25
Whitford v. Gill, 218 F.Supp.3d 837 (W.D. Wis. 2016) ........... passim
Wood v. Textron, Inc., 807 F.3d 827 (7th Cir. 2015) ............................... 23
STATUTES AND RULES Sup. Ct. R. 37.6 ........................................................... 1
OTHER MATERIALS Micah Altman, The Computational
Complexity of Automated Redistricting: Is Automation the Answer?, 23 RUTGERS COMP. & TECH. L.J. 81 (1997) .......... 7 Sachet Bangia et al., Redistricting: Drawing the Line, https://arxiv.org/abs/1704.03360......................... 10 JONATHAN BENDOR, BOUNDED RATIONALITY AND POLITICS (2010)............................................... 7 Michelle H. Browdy, Simulated Annealing: An Improved Computer Model for

vi
Political Redistricting, 8 YALE L. & POL’Y REV. 163 (1990) ....................... 7
Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 ELECTION L.J. 331 (2015) ............................... 10
Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 ELECTION L.J. 351 (2016) ............................... 10
David L. Faigman et al., Group to Individual (G2i) Inference in Scientific Expert Testimony, 81 U. CHI. L. REV. 417 (2014).............................. 24
FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (1994) ........... 23
SIMON FRENCH ET AL., DECISION BEHAVIOUR, ANALYSIS AND SUPPORT (2009)...................... 6, 7, 8
Michael D. Green et al., Reference Guide on Epidemiology, in FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 549 (3d ed. 2011)......................................................... 24, 25
Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan (July 7, 2015) ...................... 21, 28, 29, 30, 31
Simon Jackman, Rebuttal Report (Dec. 21, 2015)..................................................................... 29
David H. Kaye & David A. Freedman, Reference Guide on Statistics, in

vii
FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 83 (3d ed. 2011)............................................................... 21
Yan Y. Liu et al., PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 SWARM & EVOLUTIONARY COMP. 78 (2016) ................................................................... 10
Kenneth Mayer, Rebuttal Report: Response to Expert Reports of Sean Trende and Nicholas Goedert (Dec. 21, 2015) ........................ 27
Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 LEGIS. STUD. Q. 55 (2014)............................... 20
PAUL R. ROSENBAUM, DESIGN OF OBSERVATIONAL STUDIES (2010).......................... 30
Satisfice, RANDOM HOUSE DICTIONARY (2017), http://dictionary.com/browse/satisfice .................. 7
HERBERT A. SIMON, MODELS OF MAN: SOCIAL AND RATIONAL (1957) ............................................. 7
Herbert A. Simon, On the Concept of Organizational Goal, 9 ADMIN. SCI. Q. 1 (1964). ................................. 8, 9
Nicholas Stephanopoulos, Race, Place, and Power, 68 STAN. L. REV. 1323 (2016) .............................. 21

viii
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831 (2015).............................. 20
JOHN L. THOMPSON & FRANK MARTIN, STRATEGIC MANAGEMENT: AWARENESS AND CHANGE (2010).......................................... 8, 14
Adrian Vermeule, Three Strategies of Interpretation, 42 SAN DIEGO L. REV. 607 (2005) .......................... 7

INTEREST OF AMICI CURIAE 1
Amici are forty-four scholars of election law, scientific evidence, and empirical legal methods at law schools and universities throughout the United States. We have no personal interest in the outcome of this case (except to the extent that it may affect our electoral influence as individual voters), but we have a professional interest in seeing that the law relating to the application of scientific and statistical evidence develops in a way that supports and encourages methodologically sound practices.
SUMMARY OF ARGUMENT
The Panel adopted, and found Act 43 liable under, a three-pronged test for unconstitutional gerrymandering that prohibits any “redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Whitford v. Gill, 218 F.Supp.3d 837, 884 (W.D. Wis. 2016). In the course of factfinding, the Panel weighed and drew inferences from an extensive corpus of scientific and statistical evidence in the trial record. This brief highlights and explains methodologically sound practices for statistical, causal, and predictive
1 Pursuant to Supreme Court Rule 37.6, counsel for amici represents that he authored this brief in its entirety and that none of the parties or their counsel made a monetary contribution intended to fund the preparation or submission of this brief. Counsel for amici also represents that Counsel of Record for both parties have consented to the filing of this amicus brief, and that letters reflecting their blanket consent to the filing of amicus briefs have been filed with the Clerk.

2
inferences in the Panel’s adjudication of the discriminatory effect and justification prongs. Amici file this brief in support of plaintiff-appellees because we conclude that the Panel admitted and weighed the relevant evidence without abusing its discretion or committing clear error, and the record of this case provides substantial support for each of the Panel’s inferences and findings.
Part I addresses the justification prong by explaining how the computationally intensive nature of the modern redistricting process makes it amenable to judicial scrutiny through the lens of decision science. Despite the general conceptual difficulty of separating mixed motives, the Panel’s findings bring to light a disjunction between (1) the Act 43 drafters’ pursuit of partisan objectives in generating alternative maps and (2) their consultation of feasibility constraints when checking these maps for compliance with traditional districting principles. This disjunction yields, in computational terms, the determination that the drafters applied political classifications in a way unrelated to any legitimate legislative objective.
Part II characterizes the Panel’s analysis under the discriminatory effect prong as a causal determination entitled to deference on appeal and premised on interrelated causal and predictive claims. The causal claim is that partisan considerations in the drafting of Act 43 were a substantial cause of the Republican partisan advantages observed in the 2012 and 2014 election results. The predictive claim is that given the extent of the partisan advantages observed in 2012 and 2014, Republicans will likely continue to enjoy a partisan advantage for the life of Act 43. The Panel properly reviewed and drew valid inferences

3

from the scientific and statistical evidence concerning both of these claims.

While amici believe the Panel’s three-pronged test

provides an appropriate framework for the

constitutional

adjudication

of

partisan

gerrymandering claims, the scope of this brief is

limited to explaining why the Panel’s factual

determinations with respect to the discriminatory

effect and justification prongs of this test abundantly

warrant affirmance.

ARGUMENT
I. This Court should affirm the Panel’s determination that the partisan effect of the application of political classifications in the drafting of Act 43 was not justifiable.
The law has yet to catch up to the technology of partisan gerrymandering. In Vieth v. Jubelirer, 541 U.S. 267 (2004), the plurality opinion acknowledged that “an excessive injection of politics [in districting] is unlawful,” id. at 293, but concluded from the eighteen-year absence of judicially discernible and manageable standards for such claims that none would ever be forthcoming. See id. at 281. Justice Kennedy’s concurrence, however, took a longer view regarding the potential emergence of “suitable standards with which to measure the burden a gerrymander imposes on representational rights.” Id. at 313 (Kennedy, J., concurring in the judgment). He identified the “rapid evolution of technologies in the apportionment field” as presenting both a potential “threat” in the hands of those who would “use partisan favoritism in districting in an unconstitutional manner,” and a potential “promise”

4
as a source of “new methods of analysis … [t]hat would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards.” Id. at 312-13.
In anticipation of the eventual emergence of new legal standards and analytical methods, Justice Kennedy opined that liability for partisan gerrymandering “must rest on something more than the conclusion that political classifications were applied,” and “must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307.
In this case, the Panel made factual findings concerning “whether [Act 43’s] partisan effect is justifiable; i.e., whether it can be explained by the legitimate state prerogatives and neutral factors that are implicated in the districting process,” with the stated aim of “hew[ing] as closely as possible” to Justice Kennedy’s views and this Court’s other political gerrymandering opinions. Whitford, 218 F.Supp.3d at 911 (citations omitted). These findings included the Panel’s specific determination that Wisconsin’s natural “political geography cannot explain the burden that Act 43 imposes on Democratic voters.” See id. at 926.
As explained infra, the Panel’s findings also demonstrated, in the stark terms of decision science, that the drafters applied political “classifications . . . in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring). In so doing, the findings not only directly addressed Justice Kennedy’s views on

5

liability, but also answered his call for new jurisprudential methods.

A. Adjudication

of

a

partisan

gerrymandering claim requires scrutiny

of the computer-assisted districting

process, not just the plan it produced.

“[L]egislatures, experts, and courts” alike use powerful software tools “to map electoral districts in a matter of hours, not months,” Vieth, 541 U.S. at 312 (Kennedy, J., concurring), reflecting the valueneutrality of the technology that has transformed redistricting into a computationally intensive decision-making process. Legislatures have long been able to use computer technology to help ensure that districts comply with traditional districting principles and further other legitimate objectives. See Karcher v. Daggett, 462 U.S. 725, 733 (1983) (“The rapid advances in computer technology and education during the last two decades make it relatively simple to draw contiguous districts of equal population and at the same time to further whatever secondary goals the State has.”). At the same time, lawmakers can use the very same technology to pursue partisan advantage, if they are so inclined. Vieth, 541 U.S. at 312 (Kennedy, J., concurring) (describing the “threat” of technology enabling those who would “use partisan favoritism in districting”); id. at 345 (Souter, J., dissenting) (“[T]he increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.”); id. at 364 (Breyer, J., dissenting) (“[T]he political advantages of a gerrymander may become ever greater in the future” due to “enhanced computer technology”).

6

Armed with “highly sophisticated mapping software” and detailed census data, drafters can even “pursue partisan advantage without sacrificing compliance with traditional districting criteria.” Whitford, 218 F.Supp.3d at 889. As a consequence, “[a] map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” Id.; see also Vieth, 541 U.S. at 298 (plurality opinion) (“[P]acking and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines.”).

For this reason, a partisan gerrymandering claim cannot be dismissed simply because a computerassisted districting process produced a plan that complies with traditional districting criteria. See Vieth, 541 U.S. 298 (plurality opinion) (“[I]t certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.”). Judicial scrutiny of the computer-assisted districting process itself is needed to determine whether political “classifications, though generally permissible, were applied . . . in a way unrelated to any legitimate legislative objective.” Id. at 307 (Kennedy, J., concurring).

B. Decision

science

provides

a

computational criterion for showing that

a computer-assisted districting process

applied political classifications in a way

unrelated to any legitimate legislative

objective.

The adjudicative task of discerning the intended goals guiding a rational actor’s use of a computerbased decision support system falls squarely within the ambit of decision science. See SIMON FRENCH ET

7
AL., DECISION BEHAVIOUR, ANALYSIS AND SUPPORT 8185 (2009) (surveying various approaches to decision analysis and computer-based decision support).
Decision science captures both the “threat” and the “promise” of computer-assisted districting described in Justice Kennedy’s Vieth concurrence. 541 U.S. at 312. In the language of decision science, software threateningly enables lawmakers who are so inclined to approach redistricting computationally as a constrained optimization (or, alternatively and more realistically, satisficing) problem,2 wherein the
2 To satisfice is “to choose or adopt the first satisfactory option that one comes across.” Satisfice, RANDOM HOUSE DICTIONARY (2017), at http://dictionary.com/browse/satisfice (visited Aug. 2, 2017); see also FRENCH, supra, at 28 (“satisficing … involves establishing a minimum standard for each attribute of an action or outcome and then choosing the first alternative that meets these standards”); Adrian Vermeule, Three Strategies of Interpretation, 42 SAN DIEGO L. REV. 607, 610 (2005) (“The satisficer searches only until finding a choice whose outcomes are good enough.”).
The satisficing strategy is a rational approach to problems in redistricting in light of their complexity, compare Michelle H. Browdy, Simulated Annealing: An Improved Computer Model for Political Redistricting, 8 YALE L. & POL’Y REV. 163, 171 n.21 (1990) (suggesting a satisficing approach to computational redistricting as a reasonable alternative if optimization is computationally unachievable) with Micah Altman, The Computational Complexity of Automated Redistricting: Is Automation the Answer?, 23 RUTGERS COMP. & TECH. L.J. 81, 94-112 (1997) (arguing that constrained optimization problems in redistricting are probably computationally intractable), and in light of the bounded rationality of the decision makers. See JONATHAN BENDOR, BOUNDED RATIONALITY AND POLITICS 29 (2010) (“The heart of satisficing models is the assumption that a decision maker has an internal standard, an aspiration level, which partitions all current payoffs into two sets: satisfactory and unsatisfactory.”); HERBERT A. SIMON, MODELS OF MAN:

8

intended objective is to achieve the maximal (or, alternatively, some satisfactory) degree of partisan advantage, subject to the feasibility constraint that the plan comply with traditional districting principles. See FRENCH, supra, at 141-148 (introducing constrained optimization and illustrating its use in operations research); id. at 2829 (introducing satisficing); id. at 143 (describing feasibility constraints as the “relationships that must hold between [the] different decision variables” that comprise the problem’s “search space”).

But steadfastly treating traditional districting

principles as feasibility constraints, rather than

objectives, can also promisingly set the stage for a

showing

of

unconstitutional

partisan

gerrymandering. As Nobel laureate Herbert Simon

observed, in real-life situations where the set of

possible actions is not known in advance but “must

be discovered, designed, or synthesized,” the decision

maker must engage in a process of “alternative

generation” guided by the decision maker’s goals and

“alternative testing” against constraints for

membership in the feasible set. See Herbert A.

Simon, On the Concept of Organizational Goal, 9

ADMIN. SCI. Q. 1, 7-8 (1964). Simon explains that, in

these situations, the process of designing alternative

plans will reveal a fundamental disjunction “between

the goals that guide the actual synthesis and the

constraints that determine whether possible courses

of action are in fact feasible.” Id. at 8; see also JOHN

L. THOMPSON & FRANK MARTIN, STRATEGIC

MANAGEMENT: AWARENESS AND CHANGE 279 (2010)

SOCIAL AND RATIONAL 196 (1957) (describing satisficing as a form of “intendedly rational” decisionmaking).

9
(describing Simon’s explanation as an “important distinction” between objectives and constraints and providing examples where legal compliance functions as a feasibility constraint). The final decision resulting from this process may also “depend considerably on the search process, that is, on which requirements serve as goals or generators, in the sense just defined, and which as constraints or tests.” Simon, supra, at 8.
Simon’s disjunction between goals and constraints will be self-evident in any partisan gerrymandering case where partisan goals are seen to guide the generation of alternative maps, and legitimate legislative objectives have been consulted only as feasibility constraints. In such a case, a reviewing court may immediately conclude that partisan “classifications, though generally permissible, were applied … in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring) (emphasis added).
Some other computer-assisted districting processes may not admit of such a straightforward characterization. The process of drafting Act 43, however, did not even involve quantitative comparisons among legitimate legislative objectives, Whitford, 218 F.Supp.3d at 921, let alone the challenging but still potentially solvable computational problem of untangling mixed motives.3 Instead, as the Panel’s findings reviewed
3 Given the difficulty of separating mixed motives, this Court might be inclined to immunize partisan considerations from constitutional review whenever they have been computationally commingled with legitimate legislative objectives. See League of United Latin American Citizens v. Perry, 548 U.S. 399, 418 (2006) (citation omitted) (“Evaluating the legality of acts arising

10
out of mixed motives can be complex, and affixing a single label to those acts can be hazardous… When the actor is a legislature and the act is a composite of manifold choices, the task can be even more daunting.”); see also Vieth, 541 U.S. at 307 (Kennedy, J., concurring) (describing political classifications as “generally permissible” unless “applied in an invidious manner or in a way unrelated to any legitimate legislative objective”).
Such a categorical judicial retreat in the face of computational complexity, however, would foreclose “new technologies … that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.” Vieth, 541 U.S. at 312 (Kennedy, J., concurring). In particular, ongoing developments in the application of supercomputing to redistricting hold new promise for drawing compelling statistical inferences regarding the relationship (if any) between partisan considerations and legitimate legislative objectives in the construction of a plan. See Sachet Bangia et al., Redistricting: Drawing the Line, at https://arxiv.org/abs/1704.03360 (visited Aug. 7, 2017) (using a Markov Chain Monte Carlo algorithm to produce thousands of “random but reasonable redistrictings” from which outlier redistrictings can be identified); Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 ELECTION L.J. 331, 344 (2015) (generating a set of maps that could be used as a “transparent benchmark that solves all of the [non-partisan] districting challenges at least as well as the humans drawing the plan under review”); Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 ELECTION L.J. 351, 363-64 (2016) (describing the use of computational map-drawing tools “to separate how the population patterns in the state constrain the map making and how the partisan motivations might alter the creation of maps”); Yan Y. Liu et al., PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 SWARM & EVOLUTIONARY COMP. 78, 89 (2016) (using a massively powerful supercomputer to generate a large set of feasible maps for statistical analysis of challenged maps to determine, inter alia, whether “the shift toward a Republican or Democratic bias [is] a function of

11
infra make clear, partisan goals guided the generation of map alternatives throughout Act 43’s drafting process, and legitimate legislative objectives were consulted only as feasibility constraints.
C. The Panel’s findings support the determination that Act 43’s drafters applied political classifications in a way unrelated to any legitimate legislative objective.
1. The Panel found that the process of alternative map generation resulting in Act 43’s drafting was suffused with partisan considerations.
The Panel found from the trial evidence that “[t]he drafters’ concern with the durable partisan complexion of the new Assembly map was present from the outset of the legislative process.” Whitford, 218 F.Supp.3d at 890. As “[o]ne of their first orders of business,” the drafters developed, and had Professor Ronald Keith Gaddie validate, a “composite partisan score … which would allow them to assess the partisan make-up of the new districts.” Id. at 890-91. Over the next several months, the drafters engaged in an iterative process of generating alternative maps and computing their partisan scores. Id. at 891-92. The drafters also had Professor Gaddie perform a sensitivity analysis by creating an “S” curve for each map showing the expected relationship between the GOP’s statewide legislative vote share and the GOP’s share of seats in the state legislature under a range of election scenarios. Id. at
shifting demographics and population migration or … the motivations of the partisan line drawers [are] the driving force”).

12
892. The drafters used spreadsheets to evaluate the expected degree of partisan advantage at each iteration, and even reflected this evaluation in the names of many of the alternative maps. Id. at 92223.
The drafters’ first two statewide plans managed to increase the expected number of Republican wins from 49 to as many as 56, while decreasing the expected number of swing seats from 19 to as few as 12. See id. at 922. The drafters nevertheless were “[a]pparently not satisfied with the political performance of [their] early plans,” and subsequently “produced and evaluated at least another six statewide maps,” in which the expected number of Republican wins ranged from 57 to 60, and the expected number of swing seats ranged from 6 to 11. See id. The drafting process culminated in a June 2011 meeting where the Republican leadership drafted a Team Map as an amalgamation of regional maps “pulled” from previous drafts. Id. at 921-23. The Team Map “underwent even more partisan scrutiny” than any of the previous drafts, as well as Professor Gaddie’s sensitivity analyses. Id. at 893-94. Under the Team Map, the expected number of Republican wins was 59, and the expected number of swing seats was 10. See id. at 893. After slight modifications to the Team Map, see id. at 893 n.208, the drafters presented the final districts for Republican members to review in conjunction with historical data on partisan election performance. Id. at 894. The final plan subsequently passed both houses of the legislature and was signed into law as Act 43. Id. at 853.
2. The Panel’s findings support the determination that Act 43’s drafters

13

consulted traditional principles and other legislative objectives feasibility constraints.

districting legitimate only as

The Panel found that the drafters “were attentive to various traditional districting criteria like population equality, compactness, and municipal splits throughout the drafting process,” id. at 849, but the defendants failed to identify any evidence that the drafters ever compared drafts with respect to those criteria. Id. at 921 (“[T]he defendants have not pointed us to any documents in the record that compare the various maps under consideration according to traditional district criteria.”).4

More specifically, the Panel found that the drafters “were able to generate various reports through the autoBound software that evaluated the plan on these different districting criteria.” Id. The Panel also inferred that the drafters used the autoBound reports to check that each of “the finalized statewide plans for which we have partisan performance spreadsheets in the record complied satisfactorily with the other districting criteria that the drafters

4 See also id. at 849 (quoting R.148 at 83) (describing an “‘eyeball test’ for ‘compactness and contiguousness’” and checks for compliance with principles of population equality, core retention, respect for political subdivisions and communities of interest, and protection of incumbents, but not describing any comparisons between drafts with respect to any of these traditional districting criteria). The Panel acknowledged that the drafters did prepare a spreadsheet on disenfranchisement, id. at 921 n.359, but discounted this in light of the defendants’ failure to identify any evidence to suggest that “measures of traditional districting criteria were being scrutinized on a regular basis or with the intensity that partisan scores were being evaluated.” Id. at 892 n.195.

14
considered,” because rational actors “would not have pulled regional alternatives from [non-compliant maps] to present to the legislative leadership.” See id. at 922. But the drafters’ practice was to export only the “‘[partisan] composite column’” of the autoBound reports to the spreadsheets used for plan comparison purposes. Id. at 921 (quoting trial testimony of Adam Foltz) (alteration in original opinion). Even in the final review, the drafters “did not provide the individual legislators with any information about contiguity, compactness, or core population” to consider in their comparative assessments of the plan. Id. at 894.
Thus, the drafters consistently consulted traditional districting principles as feasibility constraints, and not as objectives for comparative evaluation, throughout the process of drafting Act 43. Cf. THOMPSON & MARTIN, supra, at 279 (providing an example of computer-assisted decision making where legal compliance functions as a feasibility constraint).
3. Act 43 bore the hallmarks of a drafting process wherein partisan considerations were applied as goals and traditional districting principles were consulted only as feasibility constraints.
There are no features in the Team Map to indicate that improvements with respect to traditional districting criteria were ever pursued as intended objectives of the iterative drafting process. Beyond the lack of evidence that the drafters ever compared any plans with respect to traditional districting criteria, see supra, there was no evidence that the Team Map representing the culmination of that

15
process performed appreciably better with respect to those criteria than previous drafts or Assembly plans in previous cycles. See Whitford, 218 F.Supp.3d at 911-12 (“[T]he defendants’ own witnesses … credibly established that Act 43’s drafters produced multiple alternative plans that would have achieved the legislature’s valid districting goals while generating a substantially smaller partisan advantage.”); id. at 940 (Griesbach, J., dissenting) (“The current plan’s compactness scores are comparable to previous plans”).
In contrast, the Panel found that “[t]he Team Map, as an amalgamation of several statewide plan alternatives, reflect[ed] the drafters’ iterative efforts throughout the drafting process to achieve a substantial, if not maximal, partisan advantage.” See id. at 923.5 From a “[c]areful review of the record,” the Panel inferred that partisan considerations -including estimates of the expected numbers of Republican and swing seats and Professor Gaddie’s sensitivity analyses -- guided the drafters in “making incremental ‘improvements’ to their plan alternatives throughout the drafting process.” See id. at 922. For example, when the drafters were “[a]pparently not satisfied with the political performance of [two] early plans, the drafters produced at least another six statewide maps,” each of which “improved upon the anticipated pro-Republican advantage generated in the initial two draft plans.” See id. at 923. Thus, regardless of whether the drafters sought as rational partisan actors to achieve a “substantial” advantage (through satisficing) or a “maximal” advantage
5 The Team Map underwent only minor changes before the plan’s enactment as Act 43. See id. at 893 n.208.

16
(through constrained optimization), their intended goals apparently included achieving an advantage beyond that conferred by either of the first two unsatisfactory plans (56 expected Republican seats and 12 expected swing seats), and evidently were satisfied by the Team Map (59 expected Republican seats and 10 expected swing seats). See id. at 898 (“It is clear that the drafters got what they intended to get.”).
Overall, the Panel’s detailed factfinding casts the disjunction between partisan goals and compliance constraints in Act 43’s drafting process into sharp relief. The Panel found that from start to finish, the drafters’ iterative efforts were guided at least in part by the goal of increasing the Republicans’ expected partisan advantage, while any considerations of traditional districting criteria were limited to checks for compliance. These findings provide ample support for the determination that the drafters applied partisan considerations to generate and evaluate plans, and ultimately Act 43, in a way unrelated to the pursuit of any legitimate legislative objective.
II. This Court should affirm the Panel’s causal determination that partisan considerations in the drafting of Act 43 had the likely effect of entrenching a Republican partisan advantage throughout the life of the plan.
This Court has defined partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,” Arizona State Legislature v. Arizona Independent Redistricting Com’n, 135 S.Ct. 2652, 2658 (2015), but has not yet established a doctrinal test for unlawful partisan entrenchment. See Vieth, 541 U.S. at 366 (Breyer, J.,

17
dissenting) (proposing tests for “unconstitutional entrenchment”); id. at 299-301 (rejecting Justice Breyer’s proposed tests); id. at 308 (Kennedy, J., concurring in the judgment) (same); see also Whitford, 218 F.Supp.3d at 927 (acknowledging that a decennial entrenchment standard “is not settled in Supreme Court jurisprudence”). To the extent that “a reliable standard for identifying unconstitutional political gerrymanders,” LULAC, 548 U.S. at 424, may entail quantitative factfinding concerning partisan entrenchment, this brief calls for an approach to appellate review of that factfinding that affords a trial court discretion to draw causal inferences that are substantially supported by reliable scientific evidence.
At trial, the plaintiffs presented observational and statistical evidence and expert testimony to establish a causal link between the drafters’ use of partisan considerations and their intended effect of “solidifying Republican control of the legislature for the decennial period.” Whitford, 218 F.Supp.3d at 863-64. As explained infra, the Panel admitted and weighed this evidence without abusing its discretion or committing clear error, and the record of this case provides substantial support for each of the Panel’s inferences and findings. The Panel’s conclusion that the effect of partisan considerations in the drafting of Act 43 was to entrench a Republican partisan advantage throughout the life of the plan should therefore be affirmed.
A. The Panel’s causal determination is entitled to deference on appeal, especially in light of the technical nature of this determination.

18
The Panel determined that “the plaintiffs have shown causation: Act 43 was designed with the purpose of solidifying Republican control of the legislature for the decennial period and, indeed, has had that effect.” 218 F.Supp.3d at 863-64. The Panel reached this causal determination in its capacity as factfinder, and is entitled to deference on appeal. See Sedor v. Frank, 42 F.3d. 741, 746 (2d Cir. 1994) (citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983)) (“Matters of motive and causation are questions of fact, and findings on these issues by the court as factfinder after a trial may not be properly be overturned unless they are clearly erroneous.”).
In reaching its causal determination, the Panel reviewed the entire record of the case, 218 F. Supp.3d at 843-62, and weighed evidence concerning “the actual election results for 2012 and 2014, the swing analyses performed by Professors Gaddie and Mayer, as well as the plaintiffs’ proposed measure of asymmetry, the efficiency gap” (“EG”), in light of the drafters’ partisan intent. Id. at 898. The Panel’s weighing of this evidence is entitled to deference under the clear error standard of review. See Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985) (“If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”). Great deference is especially warranted with respect to the Panel’s weighing of statistical evidence. See Soria v. Ozinga Bros., Inc., 704 F.2d 990, 994 n.6 (7th Cir. 1983) (citing Dothard v. Rawlinson, 433 U.S. 321, 338 (1977) (Rehnquist, J.,

19
concurring)) (“Moreover, especially where statistical evidence is involved, great deference is due the district court's determination of whether the resultant numbers are sufficiently probative of the ultimate fact in issue.”).
The Panel’s decisions regarding the admissibility of scientific evidence in this case are also entitled to wide deference. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“We hold, therefore, that abuse of discretion is the proper standard by which to refer a district court’s decision to admit or exclude scientific evidence.”); United States v. Abel, 469 U.S. 45, 54 (1984) (“A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules.”).
B. The Panel properly weighed the evidence relating to the plaintiffs’ causal and predictive claims.
The effect prong of a partisan gerrymandering claim may require a prediction of future election results. Compare Davis v. Bandemer, 478 U.S. 109, 142 (1986) (“[T]he district configurations may be combined with vote projections to predict future election results, which are also relevant to the effects showing.”) with Vieth, 541 U.S. at 287 & n.8 (describing difficulties in predicting election results that would “make it impossible to assess the effects of partisan gerrymandering” under the appellants’ proposed test).
Accordingly, the plaintiffs addressed the discriminatory effect prong by presenting evidence to support both a causal claim and a predictive claim. The causal claim is that partisan considerations in the drafting of Act 43 were a substantial cause of the

20
Republican partisan advantages observed in the 2012 and 2014 election results. The predictive claim is that given the extent of the partisan advantages observed in 2012 and 2014, Republicans will likely continue to enjoy a partisan advantage for the life of Act 43.
1. The Panel properly weighed the evidence relating to the plaintiffs’ causal claim that partisan considerations in the drafting of Act 43 were a substantial cause of the Republican partisan advantages observed in 2012 and 2014.
The Panel found that the Republicans achieved significant partisan advantages under Act 43 as revealed by the results of the 2012 and 2014 elections, see Whitford, 218 F.Supp.3d at 899, and summarized by the EG metric. See id. at 905-06.6 In inferring the causes of these advantages, the Panel reviewed observational and statistical evidence and expert testimony and entered findings addressing both general and specific causation.7
6 The efficiency gap is a measure of partisan advantage that “represents the difference between the parties’ respective wasted votes in an election — where a vote is wasted if it is cast (1) for a losing candidate, or (2) for a winning candidate but in excess of what she needed to prevail.” Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 834 (2015); see also Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 LEGIS. STUD. Q. 55, 68 (2014) (introducing and referring to this measure as “relative wasted votes”).
7 As the terms have been used in the toxic tort setting, “[g]eneral causation is whether a substance is capable of causing a particular injury or condition in the general

21
Addressing general causation, the Panel credited Professor Jackman’s explanation of the mathematical basis for the tendency of partisan packing and cracking efforts8 to cause an absolute increase in the EG as measured from subsequently observed electoral results. See id. at 903 (citing Simon Jackman, Assessing the Current Wisconsin State Legislative Districting Plan at 15 (July 7, 2015) (“Jackman Expert Report”)).
The Panel’s findings addressed the specific causation issue through a form of process-ofelimination reasoning. As reviewed supra, the Panel’s findings on discriminatory effect and
population, while specific causation is whether a substance caused a particular individual's injury.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (citation omitted).
While controlled experimental studies are often referred to as the “gold standard” for causal inference, see e.g., TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1195 (10th Cir. 2007) (referring to “the gold standard of a double-blind study”), controlled experiments are not commonly employed in expert testimony. See David H. Kaye & David A. Freedman, Reference Guide on Statistics, in FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 83, 94 (3d ed. 2011) (“The bulk of the statistical studies seen in court are observational, not experimental.”). In particular, a state’s voters cannot be split into treatment and control groups to test the partisan effect of a statewide districting plan relative to another plan. Cf. Nicholas Stephanopoulos, Race, Place, and Power, 68 STAN. L. REV. 1323, 1401 n.385 (2016) (“[T]here may not be a satisfactory treatment group and control group [for measuring Gingles’s impact], given the decision’s consequences throughout the country.”).
8 “‘Packing’ refers to the practice of filling a district with a supermajority of a given group or party. ‘Cracking’ involves the splitting of a group or party among several districts to deny that group or party a majority in any of those districts.” Vieth, 541 U.S. at 286 n.7 (plurality opinion).

22
justification served to credit Act 43’s partisan drafting process as a possible cause of the Republican advantages observed in 2012 and 2014, see Whitford, 218 F.Supp.3d at 923 (concluding that the Team Map that became Act 43 “reflect[ed] the drafters’ iterative efforts throughout the drafting process to achieve a substantial, if not maximal, partisan advantage”); id. at 899 (“The 2012 and 2014 election results reveal that the drafters’ design in distributing Republican voters to secure a legislative majority was, in fact, a success.”).
The Panel’s findings on justification also served to rule out “legitimate state prerogatives and neutral factors that are implicated in the districting process” as sufficient causes of the observed Republican advantages. See id. at 911. Specifically, the Panel found that “Wisconsin’s political geography … affords the Republican Party a natural, but modest, advantage in the districting process,” id. at 921,9 but “cannot explain the magnitude” of the partisan advantages observed in 2012 and 2014. Id. at 924. The Panel credited Professor Mayer’s Demonstration Plan as evidence tending to exclude the drafters’ efforts to comply with various constitutional and
9 To reach these findings, the Panel weighed evidence presented by the defendants’ experts to show “that Wisconsin’s political geography naturally favors Republicans because Democratic voters reside in more geographically concentrated areas, particularly in urban centers like Milwaukee and Madison.” See id. at 912. The Panel identified deficiencies in the testimony of the defendants’ experts Sean Trende, see id. at 914-15, and Professor Goedert, see id. at 916, but also discounted an effort by plaintiffs’ expert Professor Mayer to rebut Professor Goedert’s analysis, see id. at 916-18, and found support for the defendants’ theory in Professor Mayer’s testimony and Demonstration Plan. See id. at 919-21.

23
Voting Rights Act requirements, given Wisconsin’s political geography, as explanatory causes of the partisan advantage observed in 2012. See id. at 92426.10 Finally, the Panel found the drafters’ testimony inadequate to rule in their consideration of core retention, Senate election disenfranchisement, and incumbency protection as plausible causes of the “electoral imbalance” observed after the enactment of Act 43. See id. at 925-26.11
This process-of-elimination approach to causal inference is familiar to the field of epidemiological evidence, where the approach is referred to as “differential etiology.” See, e.g., Wood v. Textron, Inc., 807 F.3d 827, 832 n.4 (7th Cir. 2015) (quoting FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 214 (1994)) (“A differential etiology is a process-of-elimination approach to determining a subject's cause of injury. Under this method, an expert ‘considers all relevant potential causes of the symptoms and then eliminates
10 The Panel considered a Demonstration Plan presented by Professor Mayer that was “‘comparable to Act 43’ with respect to ‘all constitutional requirements,” including population equality, majority-minority districts, compactness, and respect for political subdivisions, id. at 924, but achieved an EG of 2.2% based on the 2012 election results, compared with Act 43’s EG of 11.69%. See id. at 920.
11 The Panel reviewed testimony indicating that the drafters considered core retention and Senate election disenfranchisement, but failing to specify “how much th[ese] consideration[s] actually factored into the drafting process.” Id. at 925-26. The Panel also credited testimony that the drafters’ consideration of incumbency protection was reflected in Act 43, which protected 13 more incumbents than the Demonstration Plan, but noted the defendants’ failure to argue that “the location of incumbents … accounts for the electoral imbalance” observed after Act 43’s enactment. See id. at 926.

24
alternative causes.’”); Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (citations omitted) (referring to differential etiology as “a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated” and noting that “[t]his technique ‘has widespread acceptance in the medical community, has been subject to peer review, and does not frequently lead to incorrect results’”).
The differential etiology approach is premised on the logic that “[e]liminating other known and competing causes increases the probability that a given individual’s disease was caused by exposure to the agent.” Michael D. Green et al., Reference Guide on Epidemiology, in FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 549, 617 (3d ed. 2011). Thus, “although differential etiologies are a sound methodology in principle, this approach is only valid if general causation exists and a substantial proportion of competing causes are known.” Id. at 618. Even so, the underlying logic generalizes beyond epidemiology, which has allowed differential etiology to become “the predominant methodology — at least as recognized by courts today — for reasoning from general causation to specific causation.” See David L. Faigman et al., Group to Individual (G2i) Inference in Scientific Expert Testimony, 81 U. CHI. L. REV. 417, 436 n.79 (2014).
The toxic torts caselaw provides further guidance on the proper weighing of causal inferences based on a differential etiology. “In attacking the differential diagnosis performed by the plaintiff’s expert, the defendant may point to a plausible cause of the plaintiff's illness other than the defendant's actions.

25
It then becomes necessary for the plaintiff’s expert to offer a good explanation as to why his or her conclusion remains reliable.” Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 808 (3rd Cir. 1997) (citation omitted); see also Westberry, 178 F.3d at 265 (quoting Heller v. Shaw Industries, Inc., 167 F.3d 146, 156-57 (3rd Cir. 1999)) (alteration in original) (“The alternative causes suggested by a defendant ‘affect the weight that the jury should give the expert's testimony and not the admissibility of that testimony,’ unless the expert can offer ‘no explanation for why she has concluded [an alternative cause offered by the opposing party] was not the sole cause.’”).
The Panel’s process-of-elimination approach to specific causation complied with each of these precepts of valid differential etiology. The Panel found that “general causation exists” in the EG’s mathematical capture of partisan packing and cracking efforts. Compare Green, supra, at 618, with Whitford, 218 F.Supp.3d at 903. The Panel’s findings on discriminatory effect and justification, see Whitford, 218 F.Supp.3d at 899, 923, supported the characterization and ruling-in of Act 43’s partisan drafting process as a specific instance of this general causation. The Panel considered and reliably ruled out “a substantial proportion of competing causes” of the observed partisan advantage, including the catch-all category of Wisconsin’s political geography. Compare Green, supra, at 618, with Whitford, 218 F.Supp.3d at 921-27. The Panel also discounted the drafters’ legal compliance efforts as alternative causal explanations in light of Professor Mayer’s Demonstration Plan. Compare Kannankeril, 128 F.3d at 808, with Whitford, 218 F.Supp.3d at 924-26.

26
Finally, the Panel found that the defendants’ testimony on core retention, Senate election disenfranchisement, and incumbency protection was insufficient to warrant consideration of these factors as plausible causes of the observed partisan advantage. Compare Kannankeril, 128 F.3d at 808, with Whitford, 218 F.Supp.3d at 925-26. Having thereby ruled in the drafters’ partisan considerations as a substantial cause and ruled out all other proffered explanations as insufficient or implausible causes of the Republican partisan advantages observed in 2012 and 2014, the Panel’s findings validly addressed both the general and specific aspects of the plaintiffs’ causal claim.
2. The Panel properly weighed the evidence relating to the plaintiffs’ predictive claim that given the extent of the partisan advantages observed in 2012 and 2014, Republicans will likely continue to enjoy a partisan advantage for the life of Act 43.
In inferring the likelihood of an enduring Republican partisan advantage under Act 43, the Panel drew on “the predictive work” embodied in Professor Gaddie’s “S” curves and Professor Mayer’s swing analysis. Whitford, 218 F.Supp.3d at 903.
Professor Gaddie’s “S” curves provided the drafters with his prediction of “the electoral outcome for each map” in the event of a statewide swing in partisan support resulting in a “Republican statewide vote percentage ranging from 40% to 60%.” See id. at 899. The “S” curves predicted a Republican partisan advantage in translating votes to seats across a wide range of election outcomes. See id. at 899 n.257 (reproducing data from the Team Map “S” curve in a

27
table showing that any given statewide vote share between 47% and 54% would translate to 14–19 more seats for Republicans than for Democrats). For example, the Team Map “S” curve predicted that in the event of a statewide swing resulting in a 50-50 vote split, Republicans would win 58 seats and Democrats would win 41. See id. Similarly, the Panel pointed out that to “maintain a comfortable majority” of 54 seats, Republicans would need a 48% statewide vote share, but Democrats would require more than 54%. Id. at 899.
Professor Mayer’s swing analysis showed, inter alia, that the pro-Republican EG observed under the actual 2012 election results would largely persist even in the event of a statewide swing in partisan support of either 5% away from or 3% toward the Democrats. See Tr. Ex. 117; Kenneth Mayer, Rebuttal Report: Response to Expert Reports of Sean Trende and Nicholas Goedert (Dec. 21, 2015), at 27 (predicting an EG of 8.80% under a “D Minus 5” swing and an EG of 10.71% under a “D Plus 3” swing, with Democrats winning a minority of seats in both cases). Professor Mayer selected this range of “likely election scenarios” based on the extrema of the Democrats’ historical vote share from 1992 to 2012. See Whitford, 218 F.Supp.3d at 900 (citing Tr. Ex. 117) (emphasis in original).
When weighing Professor Gaddie’s “S” curves and Professor Mayer’s swing analysis, the Panel kept in mind Justice Kennedy’s caution against “adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” Whitford, 218 F.Supp.3d at 903 (quoting LULAC, 548 U.S. at 419 (opinion of Kennedy, J.)). The Panel noted that Professors

28
Gaddie’s and Mayer’s predictions depended on “a hypothetical state of affairs,” in that uniform statewide swings in partisan vote share are not observed between actual elections. See id. Both sets of predictions, however, had been confirmed by “the results of two actual elections in which the feared inequity did arise.” Id. at 903.
Further corroborating Professors Gaddie’s and Mayer’s predictions, Professor Jackman independently investigated the historical durability of partisan advantage as indicated by the sign and magnitude of the EG observed across elections throughout the life of a districting plan.12 See Jackman Expert Report, supra, at 55. Professor Jackman performed a statistical analysis of “786 state legislative elections (under 206 different districting plans) in the United States between 1972 and the present day.” Whitford, 218 F.Supp.3d at 860. Professor Jackman testified that the 13% and 10% pro-Republican EGs observed in 2012 and 2014 were historical outliers, with the average observed EG of Act 43 ranking fifth among the 206 districting plans. See id. at 861.
Professor Jackman estimated the probability of observing a change of sign in the EG during the lifetime of a plan, conditional on one or more
12 The scope of this brief does not extend to address the defendants’ “legal, methodological, and policy-based attacks against judicial use of the EG as a measure of a district plan’s partisan effect,” Whitford, 218 F.Supp. at 906, other than to argue infra that the Panel properly inferred from Professor Jackman’s estimate of a “plan-average pro-Republican efficiency gap of 9.5%” that “the Republicans’ ability to translate their votes into seats will continue at a significantly advantageous rate through the decennial period.” See id. at 909.

29
observations of extreme EGs in previous elections under the plan. See Jackman Expert Report, supra, at 56-59. He found “in the post-1990 era, if a plan’s first election yields EG ≤ –.13, we never see a subsequent election under that plan yielding a proDemocratic efficiency gap.” Id. at 60 (emphasis in original). Professor Jackman also used a regression analysis to predict that “Wisconsin’s plan would have an average pro-Republican efficiency gap of 9.5% for the entire decennial period.” Whitford, 218 F.Supp.3d at 905 (citing Simon Jackman, Rebuttal Report at 1517 (Dec. 21, 2015)). Based on these findings, Professor Jackman testified that “[b]arring an ‘unprecedented political earthquake,’ Democrats would be at an electoral disadvantage for the duration of Act 43.” 218 F.Supp.3d at 905.
Professor Jackman validated his methodology and findings on the durability of the Republicans’ partisan advantage under Act 43 both externally and internally. Externally, Professor Jackman’s conducted a sensitivity analysis based on the actual 2012 Wisconsin election results, finding that “even with a 5% swing in the Democrats’ favor, the EG would not drop below 7%.” Id.; cf. Tr. Ex. 117 (showing Prof. Mayer’s finding of an EG of 10.71% under a 3% swing in the Democrats’ favor).
Recognizing “demographic drift” over time and the many other “election-specific factors [that] will contribute to election-to-election variation in the efficiency gap,”13 Professor Jackman also internally
13 Compare Jackman Expert Report, supra, at 48 (“[D]istricts will display ‘demographic drift,’ generally changing the political complexion of those districts. Incumbents lose, retire or die in office; sometimes incumbents face major opposition, sometimes they don’t. Variation in turnout … will also cause the

30
validated the use of one or more observed EGs as a predictor of the sign and magnitude of future EGs during the lifetime of a districting plan. See Jackman Expert Report, supra, at 48. Specifically, Professor Jackman’s regression analysis showed that “[a]bout 76% of the variation in the EG estimates is betweenplan variation,” dwarfing the “within-plan” variation attributable to all of the election-specific factors that may change during a plan’s lifetime. Id.
Professor Jackman’s other methodological choices reflected great care to ensure the validity of his findings. Professor Jackman sought to guarantee reproducibility and avoid the introduction of selection bias by using a large, canonical, publicly available data set of state legislative elections results. See id. at 2 (identifying the data set as “ICPSR study number 34297” and providing a Web link). He also addressed the heterogeneity inherent in an observational study of historical election results by performing a separate analysis in which he matched the 2012 and 2014 observations under Act 43 with the (relatively few) “cases with a similar history of EG measures.” Compare id. at 63 with PAUL R. ROSENBAUM, DESIGN OF OBSERVATIONAL STUDIES 277-78 (2010) (describing matching for observed covariates to address heterogeneity in an observational study).14
distribution of vote shares to vary from election to election”) with Vieth, 541 U.S. at 287 (plurality opinion) (“Political affiliation is not an immutable characteristic, but may shift from one election to the next, and even within a given election, not all voters follow the party line.”).
14 Professor Jackman also fully acknowledged and accounted for the statistical imprecision in EG introduced through the use of presidential election results and regression models to impute

31
In summary, the evidence presented by Professor Jackman at trial provided ample support for his “virtually certain” prediction that, given the EGs observed in 2012 and 2014, “Act 43 will exhibit a large and durable advantage in favor of Republicans over the rest of the decade.” Whitford, 218 F.Supp.3d at 861. Moreover, the analyses performed by Professors Gaddie and Mayer supported their testimony “that, consistent with what actually occurred in 2012 and 2014, under any likely electoral scenario, the Republicans would maintain a legislative majority.” Id. at 899 (emphasis in original). The Panel did not err in its weighing of this evidence to find:
[T]he Republican Party's comparative electoral advantage under Act 43 will persist throughout the decennial period; Democratic voters will continue to find it more difficult to affect district-level outcomes, and, as a result, Republicans will continue to enjoy a substantial advantage in converting their votes into seats and in securing and maintaining control of the Assembly. Id. at 906.
CONCLUSION
The district court’s conclusion that partisan considerations in the drafting of Act 43 had the
vote shares to uncontested districts. See Jackman Expert Report at 24-30 (explaining the imputations); id. at 36-43 (analyzing the uncertainty and statistical significance of EG estimates); id. at 48, 53, 56-58, 65-68 (providing analytical results that take into account uncertainty in EG estimates).

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unjustifiable effect of entrenching a Republican partisan advantage throughout the life of the plan should be affirmed.

September 1, 2017

Respectfully submitted,
Andrew Chin University of North Carolina School of Law 160 Ridge Road, CB #3380 Chapel Hill, NC 27599-3380 (919) 962-4116
Counsel for Amici Curiae

APPENDIX — LIST OF SIGNATORIES*
Andrew Chin Professor of Law University of North Carolina School of Law
Gabriel J. Chin Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor of Law UC Davis School of Law
Ralph D. Clifford Professor of Law University of Massachusetts School of Law
John Martin Conley William Rand Kenan Jr. Professor of Law University of North Carolina School of Law
Ira Ellman Charles J. Merriam Distinguished Professor of Law Emeritus Arizona State University College of Law
Jeffrey Fagan Isidor and Seville Sulzbacher Professor of Law Columbia Law School
* The views expressed in this brief are those of the individual signatories and not those of the institutions with which they are affiliated.

2A
Barbara A. Fedders Assistant Professor of Law University of North Carolina School of Law
Barry Feld Centennial Professor of Law Emeritus University of Minnesota Law School
Eric Fink Associate Professor of Law Elon University School of Law
Brandon L. Garrett Justice Thurgood Marshall Distinguished Professor of Law White Burkett Miller Professor of Law and Public Affairs University of Virginia School of Law
Jonah B. Gelbach Professor of Law University of Pennsylvania Law School
Tracey E. George Charles B. Cox III and Lucy D. Cox Family Chair in Law and Liberty Vanderbilt Law School

3A
Kimberly Cogdell Grainger Professor North Carolina Central University School of Law
Hosea H. Harvey Associate Professor of Law and Political Science Temple University Beasley School of Law
Bruce Hay Professor of Law Harvard Law School
Yaniv Heled Associate Professor of Law Georgia State University College of Law
Donald Thomas Hornstein Aubrey L. Brooks Professor of Law University of North Carolina School of Law
Tonja Jacobi Professor of Law Northwestern Pritzker School of Law
Michael S. Jacobs Distinguished Research Professor of Law Emeritus DePaul University College of Law

4A
Eric Kades Thomas Jefferson Professor of Law William & Mary Law School
Jay P. Kesan Professor and Workman Research Scholar University of Illinois College of Law
Morgan Kousser William R. Kenan, Jr., Professor of History and Social Science California Institute of Technology
Mark A. Lemley William H. Neukom Professor Stanford Law School
Richard A. Leo Hamill Family Professor of Law and Psychology University of San Francisco School of Law
David Levine Associate Professor of Law Elon University School of Law
Robert J. MacCoun James & Patricia Kowal Professor of Law Stanford Law School

5A
M. Isabel Medina Ferris Family Distinguished Professor of Law Loyola University New Orleans College of Law
John Monahan Shannon Distinguished Professor of Law University of Virginia School of Law
Perry Moriearty Associate Professor of Law University of Minnesota Law School
Myron Orfield Jr. Earl R. Larson Professor of Civil Rights and Civil Liberties Law University of Minnesota Law School
Gregory S. Parks Professor of Law Wake Forest University School of Law
Frank Pasquale Professor of Law University of Maryland Carey School of Law
Dorit Rubinstein Reiss Professor of Law UC Hastings College of the Law

6A
D. Michael Risinger John J. Gibbons Professor of Law Seton Hall University School of Law
Andrea Roth Assistant Professor of Law UC Berkeley School of Law
Matthew Sag Professor of Law Loyola University Chicago School of Law
Christopher L. Sagers Professor of Law Cleveland State University College of Law
Nathan A. Schachtman Lecturer in Law Columbia Law School
Francis X. Shen McKnight Land-Grant Associate Professor of Law University of Minnesota Law School
Steph Tai Associate Professor of Law University of Wisconsin Law School

7A
James Alexander Tanford Professor Emeritus Indiana University Maurer School of Law
Kathleen DeLaney Thomas Assistant Professor of Law University of North Carolina School of Law
Michael Tonry McKnight Presidential Professor in Criminal Law and Policy University of Minnesota Law School
Neil Vidmar Russell M. Robinson II Professor Emeritus of Law Duke Law School

 
 No. 16-1161
dIN THE
Supreme Court of the United States

BEVERLEY R. GILL, et al., — v.—
WILLIAM WHITFORD, et al.,

Appellants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF OF COLLEAGUES OF PROFESSOR NORMAN DORSEN AS AMICI CURIAE
IN SUPPORT OF APPELLEES

BURT NEUBORNE Counsel of Record
NORMAN DORSEN (1930-2017) 40 Washington Square South New York, New York 10012 (212) 998-6172 burt.neuborne@nyu.edu
Attorneys for Amici Curiae Colleagues of Professor Norman Dorsen

QUESTION PRESENTED Whether a massive partisan gerrymander that entrenches the transient majority’s political control of the Wisconsin legislature for the foreseeable future, and virtually eliminates genuinely contestable legislative elections from Wisconsin political life, violates the First and Fourteenth Amendments?
i

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ..................................i

TABLE OF AUTHORITIES ............................. iii

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

SUMMARY OF ARGUMENT ............................. 4

ARGUMENT ...................................................... 7

SYSTEMATIC POLITICAL GERRYMANDERING THAT DENIES VOTERS A FAIR OPPORTUNITY TO PARTICIPATE IN GENUINELY CONTESTABLE LEGISLATIVE ELECTIONS VIOLATES THE FIRST AMENDMENT .............................................. 7

A. The Impact of the Wisconsin Gerrymander on Genuinely Contestable Legislative Elections .......... 10

B. The Scope of the First Amendment Right to Participate in a Genuinely Contestable Legislative Election ............ 15

C. The Advantages of Recognizing a First Amendment Right to Participate, When Possible, in a Genuinely Contestable Election .................................................. 21

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

ii

Cases:

TABLE OF AUTHORITIES

PAGE(S)

Anderson v. Celebrezze, 460 U.S. 780 (1983) ..................................... 20
Baker v. Carr, 369 U.S. 186 (1962) ....................................... 7
Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991) ..................................... 19
Breedlove v. Suttles, 302 U.S. 277 (1937) ....................................... 7
Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011) ..................................... 20
Buckley v. Valeo, 424 U.S. 1 (1976)......................................... 20
Burdick v. Takushi, 504 U.S. 428 (1992) ......................6, 17, 18, 23
Burson v. Freeman, 504 U.S. 191 (1992) ..................................... 23
California Democratic Party v. Jones, 530 U.S. 567 (2000) ..................................... 21
Carrington v. Rash, 380 U.S. 89 (1965).........................................8
Cipriano v. Houma, 395 U.S. 701 (1969) ....................................... 8
Citizens United v. FEC, 558 U.S. 310 (2010) ..................................... 21

iii

PAGE(S)
Colegrove v. Green, 328 U.S. 549 (1946) ....................................... 7
Cox v. Larios, 542 U.S. 947 (2004) ..................................... 24
Crawford v. Marion County Elec. Bd., 553 U.S. 181 (2008) ....................................... 8
Davis v. Bandemer, 478 U.S. 109 (1986) ....................................... 9
Dunn v. Blumstein, 405 U.S. 330 (1972) ....................................... 8
Elonis v. United States, 135 S. Ct. 2001 (2015) ................................. 20
Ex parte Yarbrough, 110 U.S. 651 (1884) ....................................... 7
Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) ........................... 20, 24
Gaffney v Cummings, 412 U.S. 735 (1973) ....................................... 9
Giles v. Harris, 189 U.S. 475 (1903) ....................................... 7
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ....................................... 7
Guinn v. United States, 238 U.S. 347 (1915) ....................................... 7
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) ....................................... 8
Kramer v. Union School District, 395 U.S. 621 (1969) ....................................... 8
iv

PAGE(S)
Lane v. Wilson, 307 U.S. 268 (1939) ....................................... 7
LULAC v. Perry, 548 U.S. 299 (2006) ....................................... 9
Matal v. Tam, 137 S. Ct. 1744 (2017) ........................... 18, 20
McCutcheon v. FCC, 572 U.S. __ (2014) ....................................... 15
Minor v. Happersett, 88 U.S. 162 (1875).........................................7
Newton v. Comm’rs, 100 U.S. 548 (1879) ..................................... 10
O’Brien v. United States, 391 U.S. 367 (1968) ............................... 22, 24
Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. (How) 416 (1853) .............................. 9
Phoenix v. Kolodzieski, 399 U.S. 204 (1970) ....................................... 8
Pleasant Grove City v. Sumuum, 555 U.S. 460 (2009) ..................................... 18
Reynolds v. Sims, 377 U.S. 533 (1964) ................................. 8, 20
Snyder v. Phelps, 562 U.S. 443 (2011) ..................................... 20
Terry v. Adams, 345 U.S. 461 (1953) ....................................... 7
Texas v. Johnson, 491 U.S. 397 (1989) ..................................... 20
v

PAGE(S)
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ..................................... 24
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) ..................................... 24
United States v. Alvarez, 132 S. Ct. 2537 (2012) ................................. 20
United States v. Stevens, 559 U.S. 460 (2010) ..................................... 20
United States v. Winstar Corp., 518 U.S. 839 (1996) ..................................... 10
Vieth v. Jubelirer, 541 U.S. 267 (2004) ................................... 8, 9
Virginia v. Black, 538 U.S. 343 (2003) ..................................... 20
Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239 (20015) ............................... 18
Washington v. Davis, 426 U.S. 229 (1976) ....................................... 8
Wesberry v. Sanders, 376 U.S. 1 (1964)..................................... 5, 20
Williams v. Rhodes, 393 U.S. 23 (1968)................................... 8, 20
Books and Articles:
Donald A. Debats, How America Voted: By Voice, available at sociallogic.iath. virginia.edu (University of Virginia) ........... 19
vi

PAGE(S)
Donald A. Debats, How the Other Half Voted: The Party Ticket States, available at sociallogic.iath.virginia.edu (University of Virginia) ............................... 19
Heather K. Evans, Competitive Elections and Democracy in America: The Good, the Bad, and the Ugly (2014) ........................ 9
Gary C. Jacobson, The Electoral Origins of Divided Government: Competition in U.S. House Elections, 1946-1988 ................ 11
Keena Lipsitz, Competitive Elections and the American Voter (U. Pa. Press 2011)........9
David R. Mayhew, Congressional Elections: The Case of the Vanishing Marginals, 6 Polity 295 (1974) ...................................... 11
Other Authorities:
Ballotpedia: The Encyclopedia of American Politics, available at https://ballotpedia. org/Wisconsin_State_Assembly_Districts, 2016 (most recently accessed on August 25, 2017) ..................................... 5, 12
Cook Political Report (cookpolitical.com) ......... 11
Cook PVI. http://cookpolitical.com/introducing2017-cook-political-report-partisanvoter-index .................................................. 11
The Election Project, www.electproject.org/ home/voter-turnout/voter turnout-data....... 13
vii

No. 16-1161
IN THE SUPREME COURT OF THE UNITED STATES
____________
BEVERLEY R. GILL, ET AL., Appellants
v.
WILLIAM WHITFORD, ET AL., Appellees
On Appeal from the United States District Court for the
Western District of Wisconsin
INTEREST OF AMICI1
Amici were close colleagues of Professor Norman Dorsen during his tenure from 1969-1991 as General Counsel, and then President of the American Civil Liberties Union; and during his tenure from 1961-
1 Blanket consents to the filing of briefs amici curiae have been filed with the Clerk of the Court by all parties. Counsel represent, pursuant to Rule 37.6, that no party, or counsel for a party, has played a role in the drafting or preparation of this brief amici curiae; nor did any person or entity other than amici contribute financially to the drafting, preparation, or filing of this brief. This brief reflects the personal views of amici, and does not purport to express the views of New York University School of Law, or of any other entity or institution.
1

2017 as Frederick I. and Grace A. Stokes Professor, Co-Director of the Arthur Garfield Hays Civil Liberties Program at New York University School of Law, and Counsellor to the President of New York University. Aryeh Neier served as Executive Director of the ACLU from 1970-1978, and worked closely with Professor Dorsen on issues of international human rights as Vice Chair and Executive Director of Human Rights Watch from 1978-1993, and as President, and President Emeritus of the Open Society Foundations from 1993- 2017. John Shattuck served as Legislative Director of the ACLU from 1976-1984, and worked closely with Professor Dorsen on issues of democratic governance as President and Rector of Central European University in Budapest from 2009-2016, as Assistant Secretary of State for Democracy, Human Rights, and Labor from 1993-1998, and Ambassador to the Czech Republic from 1998-2000. John Sexton is the Benjamin Butler Professor of Law, Dean Emeritus of NYU School of Law, and President Emeritus of New York University, and worked closely with Professor Dorsen, who served from 1988-2002 as his Counsellor as Dean, and from 2002-2015 as his Counsellor as University President. Burt Neuborne, who served as Assistant Legal Director of the ACLU from 1972-1974, and as National Legal Director of the ACLU, from 1981-1986, worked closely with Professor Dorsen in defense of civil liberties at both the ACLU and NYU for 50 years, and serves as the inaugural Norman Dorsen Professor in Civil Liberties at New York University School of Law. Helen Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at NYU, and served with Professor Dorsen as Co-Director of the Arthur Garfield Hays Civil Liberties Program, and as Associate Legal Director of the ACLU from 1988-
2

1995. Sylvia Law is the Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry at NYU, and served with Professor Dorsen as Co-Director of the Arthur Garfield Hays Program, and worked closely with him in his role as a founder of the Society of American Law Teachers. Stephen Gillers is the Elihu Root Professor of Law at NYU, and worked closely with Professor Dorsen for many years on issues related to Professional Responsibility and legal ethics. Gara LaMarche served as Associate Director of the New York Civil Liberties Union from 19791984, and as Executive Director of the Texas Civil Liberties Union from 1984-1988, worked closely with Professor Dorsen on democracy-related issues during his years at the Open Society Institute, and as President of Atlantic Philanthropies. Nadine Strossen is the John Marshall Harlan II Professor of Law at New York Law School. She succeeded Professor Dorsen as President of the ACLU, serving from 19912008. Martin Guggenheim is the Fiorello LaGuardia Professor of Clinical Law at NYU, and worked closely with Professor Dorsen since 1973 on the development of clinical legal education and the rights of children.
Professor Dorsen died peacefully on July 1, 2017, during the preparation of this brief. Amici seek to honor his life-long commitment to the defense of American democracy by completing the unfinished work on this brief, and filing it amici curiae to advance Professor Dorsen’s strongly held view that excessive political gerrymandering endangers American democracy, and violates the First, Fifth, and Fourteenth Amendments.
Amici do not hold themselves out to the Court as possessing specialized knowledge or expertise not readily available to the parties. They are, however,
3

united by many years of deep affection and respect for Professor Norman Dorsen as a colleague and friend. In this brief amici curiae, they seek to complete his unfinished project, and present his voice to the Court one final time.
Summary of Argument
Where, as here, a transient political majority abuses its power by systematically manipulating electoral district lines to rig the outcome in its favor of as many legislative elections as possible, the transient majority acts in violation of the First and Fourteenth Amendments. Viewed from the perspective of political equality, such a massive partisan gerrymander unconstitutionally debases the equal right of the transient minority to elect representatives of choice, and unconstitutionally entrenches the ability of the transient majority to exercise political control over the Wisconsin legislature for the foreseeable future. Accordingly, amici urge the Court to affirm the thoughtful opinion below articulating a manageable standard for identifying such an unconstitutional political entrenchment.
In one unfortunate sense, however, the Wisconsin gerrymander before the Court treats virtually all voters equally by systematically depriving voters of every political stripe of an opportunity to participate in a genuinely contestable legislative election, even when such an election is eminently feasible. Under the legislative apportionment before the Court, a combination of natural factors and the systematic manipulative drawing of district lines is so effective in suppressing genuinely contestable elections that, in 2016, 49 of the 99 seats in the lower house of the
4

Wisconsin legislature were “elected” without opposition because it was deemed futile to mount any opposition. In the remaining 50 nominally contested districts, the district lines were also carefully drawn to rig the outcomes in all but a very few “swing” districts, leaving fewer than 10% of Wisconsin’s legislative election as even mildly contestable.2 Indeed, under the criteria generally utilized in assessing contestability, only 2 of 99 districts were genuinely contestable.
Such a systematic effort to suppress the ability to participate in a genuinely contestable election denies all voters—Republicans, Democrats, and Independents alike—a meaningful choice over who will represent them, in violation of the First Amendment. Justice Black said it most eloquently in Wesberry v. Sanders, 376 U.S. 1, 17 (1964):
No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live.Other rights, even the most basic, are illusory if the right to vote is undermined.
Wisconsin’s political gerrymander “undermines” the right to vote by rigging the outcome of virtually every legislative election. The quality and intensity of a voter’s First Amendment participation in the electoral process—listening to the candidates;
2 While the record below contains the raw data from which it is possible to assess the contestability of the elections in question, for purposes of clarity, amici have utilized data compiled in Ballotpedia—The Encyclopedia of American Politics, available at https//ballotpedia.org/Wisconsin_State_Assembly_Districts, 2016 (most recently accessed on August 25, 2017).
5

choosing a preferred candidate; working with others in support of that candidate; and casting a ballot for a candidate of choice - is deeply dependent on the belief that voters are capable of exercising a genuine choice over who wins an election. When massive political gerrymandering is used systematically, as here, to deprive independents and adherents of both major political parties of a fair opportunity to participate in genuinely contestable elections, it eliminates genuine choice from the electoral process, and drains the First Amendment activities of listening, choosing, supporting and voting of practical effect. It is the First Amendment equivalent of formally permitting a speaker to speak, but denying her an audience.
In his dissent in Burdick v. Takushi, 504 U.S. 428, 442 (1992), Justice Kennedy recognized that voter choice is the essence of democracy. 504 U.S. at 446449. Justice White, writing for the Court in Burdick, also viewed voter choice as the central tenet of democracy. Id. at 437-441. Indeed, their only disagreement was whether, given the unique twostage structure of Hawaii’s electoral process, write-in voting was genuinely necessary to the exercise of robust voter choice. The massive and systematic Wisconsin political gerrymander before the Court ruthlessly suppresses voter choice by rigging the outcome of as many elections as possible, virtually eliminating the idea of genuine voter choice from Wisconsin’s legislative electoral process. While amici recognize that geography and social sorting may render it impossible to afford every voter with an opportunity to participate in a genuinely contestable election, when, as here, a transient political majority acts affirmatively and systematically to suppress the
6

emergence of genuinely contestable elections even when they are eminently feasible, it violates the First Amendment rights of every voter to be free from state interference with voter choice.
ARGUMENT
SYSTEMATIC POLITICAL GERRYMANDERING THAT DEPRIVES VOTERS OF A FAIR OPPORTUNITY TO
PARTICIPATE IN GENUINELY CONTESTABLE LEGISLATIVE ELECTIONS
VIOLATES THE FIRST AMENDMENT
In the more than half-century since this Court’s seminal decision in Baker v. Carr, 369 U.S. 186 (1962),3 the Court has invoked the concept of equality embedded in the 5th and 14th Amendments as the linchpin of a constitutional jurisprudence that guaranties an equal right to participate in the
3 Prior to Baker v. Carr, the Court’s role in protecting the democratic process was largely confined to efforts to enforce the 14th and 15th Amendments’ ban on racial discrimination in access to the ballot. See, eg., Ex parte Yarbrough, 110 U.S. 651 (1884); Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Terry v. Adams, 345 U.S. 461 (1953); Gomillion v. Lightfoot, 364 U.S. 339 (1960). Apart from the important race cases, the combined impact of the political question doctrine, and then-current views of state action and federalism, hampered any serious attempt to provide general protection of the right to vote, and to fair political representation. See Minor v. Happersett, 88 U.S. 162 (1875) (upholding denial of the vote to women); Giles v. Harris, 189 U.S. 475 (1903) (denying equitable relief against enforcement of Alabama laws aimed at disenfranchising black voters); Breedlove v. Suttles, 302 U.S. 277 (1937) (unanimously dismissing challenge to Georgia poll tax); Colegrove v. Green, 328 U.S. 549 (1946) (dismissing apportionment challenge under political question doctrine).
7

democratic process.4 The resulting equality-driven constitutional law of democracy has succeeded in eliminating many of the most egregious barriers that had unfairly hampered participation in the democratic process, especially by the weak and poor.5 Time has taught, however, that a constitutional law of democracy tied exclusively to the shifting sands of Equal Protection jurisprudence, especially the need to identify a reasonably objective baseline from which to measure an allegedly unconstitutional deviation;6 and the difficulties associated with applying differing standards of judicial review based on the motivation of would-be regulators,7 fails to provide fully-effective
4 Five cases illustrate the Court’s equality-driven jurisprudence in action. Carrington v. Rash, 380 U.S. 89 (1965) (invalidating Texas’ disenfranchisement of soldiers stationed in Texas who viewed their military assignment as their principal place of residence). Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (invalidating the poll tax, and sweeping away property qualifications for voting and holding office). Williams v. Rhodes, 393 U.S. 23 (1968) (recognizing equality-based right to run for office as a third-party candidate); Kramer v. Union School District, 395 U.S. 621 (1969) (holding that all residents affected by an election enjoy an equal right to vote in it). Dunn v, Blumstein, 405 U.S. 330 (1972) (ending durational residence requirements for voting).
5 See, eg., Reynolds v. Sims, 377 U.S. 533 (1964) (establishing one person-one vote requirement); Cipriano v. Houma, 395 U.S. 701 (1969) (invalidating limitation of franchise to property owners in municipal utility bond election); Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (invalidating property ownership requirement to vote in general obligation bond elections).
6 Vieth v. Jubelirer, 541 U.S. 267 (2004) (declining to review equality-based challenge to partisan gerrymandering).
7 Washington v. Davis, 426 U.S. 229 (1976) (requiring proof of racial animus); Crawford v. Marion County Election Bd., 553
8

constitutional protection to the right to participate in the democratic process. This case is the Court’s fifth plenary effort to grapple with a nationwide epidemic of political and partisan gerrymandering that erodes representational fairness, and threatens to render genuinely contestable legislative elections all but extinct.8 Gaffney v Cummings, 412 U.S. 735 (1973) (upholding bi-partisan political gerrymander); Davis v. Bandemer, 478 U.S. 109 (1986) (recognizing the unconstitutionality of excessive partisan gerrymandering); Vieth v. Jubelirer, 541 U.S. 267 (2004) (modifying Davis; declining to review constitutionality of alleged excessive gerrymandering in absence of objective baseline); LULAC v. Perry, 548 U.S. 299 (2006) (same).
The thoughtful majority opinion below grapples effectively with both the purpose and baseline issues that have complicated the Court’s effort to place limits on the national epidemic of partisan gerrymandering. The systematic drawing of district lines with both the purpose and effect of assuring a transient majority’s continued political control of the state legislature into the foreseeable future crosses any reasonable line from “just politics,” to unconstitutional entrenching in violation of the Equal Protection Clause. See Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. (How) 416, 431 (1853) (state
U.S. 181 (2008) (upholding voter identification requirements; declining to find discriminatory purpose).
8 A massive political science literature discusses the relationship between political gerrymandering and competitive elections. For a useful summary, see Heather K. Evans, Competitive Elections and Democracy in America: The Good, the Bad, and the Ugly (2014). See also Keena Lipsitz, Competitive Elections and the American Voter (U. Pa. Press 2011).
9

legislature may not seek to control future legislatures); Newton v. Comm’rs, 100 U.S. 548, 561 (1879) (same); United States v. Winstar Corp., 518 U.S. 839, 872 (1996) (plurality opinion).
Systemic statewide political gerrymanders on the scale of the Wisconsin political gerrymander before this Court should not, however, be reviewed solely as a matter of equality. Where, as here, a ruthlessly partisan state-wide gerrymander virtually destroys the ability of more than four million Wisconsin voters of both parties to participate in genuinely contestable legislative elections, it violates the First, as well as the Fourteenth Amendment.
A. The Impact of the Wisconsin Gerrymander on Genuinely Contestable Legislative Elections
The Wisconsin gerrymander before the Court virtually eliminates the concept of genuinely contestable state legislative elections from Wisconsin political life. Although the political science literature contains numerous measures of the competitiveness of an election, a consensus appears to exist defining a genuinely contestable election as one where, based on party registration (predicting future voting), and/or past electoral deviation from national or statewide results (historical voting patterns), the electorate is sufficiently closely-divided to permit the supporters of more than one candidate to harbor a realistic hope, as opposed to merely a theoretical opportunity, of winning the election.
Many political observers, applying one or both measures, divide legislative districts into “landslide” districts where, based on party registration and/or past electoral performance, more than 60% of the electorate is highly likely to vote for a particular
10

candidate; “safe” districts where, based on the same criteria, more than 55% percent of the electorate is highly likely to support a given candidate; “contestable” districts of varying degrees of competitiveness, where between 52%-55% of the electorate is highly likely to support a given candidate; and “swing” districts where no candidate has a significant predictive edge. The architects of the Wisconsin plan before the Court appear to have used a similar four-part terminology adapted from the widely-respected Cook Political Report (cookpolitical. com) that labels each Wisconsin legislative district as “landslide,” “safe,” “leaning,” or “toss-up.” Districts labeled “leaning” or “swing,” allow both candidates and their supporters to hold a plausible hope of victory. “Landslide” and “safe” districts are not considered genuinely contestable.9 Although it is theoretically possible for genuinely contestable elections to occur in “safe” or even “landslide” districts, the overwhelming likelihood of victory for the favored candidate almost always reduces the election in such districts to a formality, with the winners a foregone conclusion. When the
9 See David R. Mayhew, Congressional Elections: The Case of the Vanishing Marginals, 6 Polity 295, 304 (1974) (defining as “reasonably safe” elections in which the winning candidate captures 55% or 60% of the vote); see also Gary C. Jacobson, The Electoral Origins of Divided Government: Competition in U.S. House Elections, 1946-1988, at 26 (“The two thresholds of marginality commonly found in the literature are 55% and 60% of the vote. Winning candidates who fall short of the threshold are considered to hold marginal seats; those who exceed it are considered safe from electoral threats.”). A popular practical measure, the Cook PVI, compares “how each district performs at the presidential level compared to the nation as a whole.” http://cookpolitical.com/introducing-2017-cook-political-reportpartisan-voter-index.
11

reapportionment dust settles in Wisconsin, only a very few members of the lower house, out of a total of 99, will represent either a “swing district,” or a genuinely competitive “leaning” district in the next legislative election. In those relatively few, genuinely contestable swing districts, supporters of both major parties will listen to the candidates, choose a preferred candidate, support that preferred candidate, and cast a ballot on Election Day in the belief that what they are doing really matters.
Unfortunately, such a belief will not be widely shared. The vast bulk of Wisconsin legislators of both parties will represent “safe” or “landslide” legislative districts, with the winners known in advance with degrees of certainty ranging from 100%, to somewhat lesser, but, nevertheless, overwhelming measures of confidence. Indeed, Wisconsin has managed to draw an apportionment where, in 2016, 49 of 99 seats were uncontested because, given the confluence of natural geographical sorting, and ruthlessly gerrymandered district lines, it was deemed futile to mount any opposition. In the remaining 50 nominally contested districts, the district lines were also carefully drawn to rig the outcomes in all but a very few “swing” districts, leaving fewer than 10% of Wisconsin’s legislative election as even mildly contestable.10 Indeed, under the criteria generally utilized in assessing contestability, only 2 of 99 districts were genuinely contestable.
10 While the record below contains the raw data from which it is possible to assess the contestability of the elections in question, for purposes of clarity, amici have utilized data compiled in Ballotpedia—The Encyclopedia of American Politics, available at https//ballotpedia.org/Wisconsin_State_Assembly_Districts, 2016 (most recently accessed on August 25, 2017).
12

In the 97 “safe, or “landslide” districts (and those “contestable” districts at or near 55%,), the election campaign culminating on Election Day was experienced by most voters as a mere formality, where listening to the candidates, choosing a favorite, working on the candidate’s behalf, and casting a vote can have no impact on the election’s outcome. For members of the electoral minority in such districts, participation in such a non-contestable election is an existential exercise in frustration and protest. For members of the electoral majority, participation in a rigged election is less frustrating, but equally hollow from the perspective of free choice.
Given the certainty about who will win most legislative elections in Wisconsin, indeed throughout the United States, it should come as no surprise that, most of the time, fewer than half the eligible electorate bothers to participate in such a sham exercise in voter “choice.”11 In fact, the real question is why so many Americans continue to vote in legislative elections when the outcome has already been decided by political bosses. It is a tribute to their commitment to democracy that so many believe so deeply in the democratic process that they are prepared to continue performing the rituals of democracy, even after a cynical political gerrymander has stripped those rituals of substantive importance by all but eliminating contestable legislative elections from American political life.
Sadly, the demise of genuinely contestable legislative elections is not limited to Wisconsin.
11 A useful compendium of voter turnout statistics is collected at www.electproject.org/home/voter-turnout/voterturnout-data (The Election Project).
13

Throughout the United States, technological advances in apportionment software, and unremitting worship by politicians of both major parties at the church of Our Lady of Perpetual Reapportionment has enabled incumbents of both major parties to cement themselves into office, and has encouraged political bosses to seek to entrench the hegemonic status of the political party enjoying a transient majority. Mirroring the Wisconsin experience, of the 435 seats in the House of Representatives, fewer than ten percent will be filled in 2018 in a genuinely contestable election. In Pennsylvania and North Carolina, both relatively evenly-balanced swing- states in Presidential, Senatorial, and Gubernatorial elections, not a single member of the House of Representatives will be elected in 2018 in a contestable election. In Texas, under the existing apportionment, the City of Austin, with an overwhelmingly Democratic population of approximately one million people, will elect two Republican members of the House in 2018 because likely-Democratic urban voters have been “cracked” into smaller blocs, where they will be overwhelmingly outweighed by likely-Republican voters in the rural areas surrounding Austin.
As the lower court correctly held, such an unfair political phenomenon can—and should—be condemned as unconstitutionally unequal. But, more fundamentally, in 2018, approximately 100 million adherents of both major parties residing in more than 400 “safe” or “landslide” Congressional Districts throughout the United States, and many millions of voters in rigged state legislative elections, will be denied the ability to participate in a genuinely contestable legislative election where the exercise of
14

their First Amendment freedoms is energized by a plausible belief that electoral participation can make a real difference. In other settings, when government has acted to “chill” the full throated exercise of First Amendment freedoms, thus Court has not hesitated to condemn the government action as violative of the First Amendment. See McCutcheon v. FCC, 572 U.S. (2014) (government disincentives that deter full throated First Amendment participation in electoral politics violate the First Amendment).
B. The Scope of the First Amendment Right to Participate in a Genuinely Contestable Legislative Election
Amici do not argue that American voters enjoy an unlimited First Amendment right to participate in a genuinely contestable legislative election. Under our first-past-the-post system of representative democracy, factors beyond the control of government may often render it virtually impossible to assure every voter the opportunity to enjoy such an optimal democratic experience. The geographical phenomenon of social “sorting,” reinforced by zoning, mortgage discrimination, housing discrimination, economic want, and other factors determining where people live, will often result in the natural “packing” of a mass of politically like-minded voters into a given election district, rendering it impossible to provide for a contestable election in that district without adopting a system of proportional representation, and/or at large, or multi-member districts.
While the democratic experience of such naturally “packed” voters may be diminished, their First Amendment rights have not been violated, any more than the state’s failure to act affirmatively to provide
15

every speaker with ownership of a printing press violates the First Amendment. As this Court has conceived it, in the vast bulk of settings, the First Amendment is not an affirmative guaranty; it is a negative bulwark that is violated only when the state acts to prevent its exercise. Thus, a First Amendment right to participate in a contestable election would, necessarily, be limited to a ban on systematically drawing electoral lines to rig the outcome of as many “contests” as possible, even when it would have been eminently feasible to provide for genuinely contestable elections in large numbers of districts.12
Participating in a genuinely contestable election by listening to the candidates, choosing a favorite, supporting the candidate of choice, and casting a ballot on Election Day in an election contest that matters is the quintessential exercise of political speech and association. It is, of course, possible to listen, support, and vote in an election when only one candidate is on the ballot, or where the winner is known in advance; but the difference between going through the motions of democracy with the knowledge that all the speech in the world cannot make a difference in an election’s outcome, and participating in an election campaign in the plausible hope that
12 Since the three-judge court below understandably concentrated on the partisan nature of the Wisconsin gerrymander, it did not explore in depth the degree to which the legislature had systematically suppressed contestability. It is, however, highly unlikely that a natural process of geographical sorting has progressed in Wisconsin to the point where only 2% of its assembly district can be rendered genuinely contestable. Were the Court to recognize a right not to be systematically excluded from participating in otherwise feasible contestable elections, the precise number of eminently feasible contestable districts in Wisconsin would remain for exploration on remand.
16

your exercise of choice, speech, and association will affect the outcome, is enormous. If the state permitted a speaker to speak, but eliminated the audience, the existential, self-affirming act of speech would not be meaningless; but it would fall far short of full participation in the marketplace of ideas. Similarly, formally going through the motions of participating in a rigged election campaign is not meaningless. It is an act of faith in democracy, and an important assertion of individual dignity. But it falls far short of the individual and collective intensity that exists when a speaker believes that her speech can actually change things.
Despite the Court’s unfortunate dictum in Burdick v. Takushi, 504 U.S. 428 (1992), denying voters a constitutional right to cast a write-in ballot, amici believe that the act of voting, as the culmination of participation in an election campaign, is far more than a mere instrumental device designed to pick a winner.13 Parents do not take their children to observe the operation of mere instrumental devices.
13 In Burdick, Hawaii declined to permit write-in candidates on the general election ballot. The ban was challenged by a voter wishing to cast a write-in ballot for Donald Duck. This Court ruled that Hawaii was not constitutionally obliged to expend its election resources on authorizing or processing such a frivolous vote. Justice White was careful to note how easy it was under Hawaii’s law to place a genuine protest candidate on the ballot of Hawaii’s two-step election process. 504 U.S. at 432-437. Justice Kennedy, in dissent, agreed that voting is not in itself an act of pure speech directed to the general public, but disagreed over the burden imposed on a voter’s ability to exercise free choice by Hawaii’s refusal to permit write-in voting. Justice Kennedy found the write-in ban unconstitutional because it constituted a significant burden on voter choice protected under both the First and Fourteenth Amendments. Id at 447-449.
17

Millions of Americans did not fight, and too many die, to preserve a mere instrumental device. As Justice Kennedy recognized in his dissent in Burdick (504 U.S. at 442), voting, even if not viewed as a form of pure speech directed to the general public, is, nevertheless, imbued with a degree of First Amendment protection as the communicative act by which a voter expresses his or her choice to the government. Id at 443-445. In effect, Justice Kennedy’s dissent in Burdick anticipated the necessary obverse of the government speech doctrine.14 If government is constitutionally entitled to speak freely to the people, surely the people must be provided with a First Amendment right to talk back. Voting is the core of the right to talk back. Thus, Justice Kennedy was surely right in Burdick in arguing that any state rule placing a significant burden on a voter’s ability to express a meaningful choice violates the First and Fourteenth Amendments. This case asks whether the government can systematically and unjustifiably drain such a crucial expression of choice of any real meaning by the adroit manipulation of district lines.
Viewing the vote as the declaration of a voter’s choice to the government, and to the general public, is deeply rooted in our national heritage. For much of the nation’s early history, voting was a public act by which an adherent openly declared himself to the
14 See Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239 (20015) (license plates are a form of government speech); Pleasant Grove City v. Sumuum, 555 U.S. 460 (2009) (decision to display permanent monuments a form of government speech). For the limits of the government speech doctrine, see Matal v. Tam, 137 S. Ct. 1744 (2017) (grant of trademark is not government speech).
18

government election clerk as a supporter of one or another of the candidates. George Washington, Thomas Jefferson, James Madison, James Monroe, and Abraham Lincoln—the Founders who built our nation—all cast their ballots publicly viva voce.15 The adoption of the secret Australian ballot during the late 19th century shifted the declaration of support from a public setting to a private voting booth, but the expressive nature of the voter’s declaration of support remained unchanged, except that it was now anonymous. Whether public or anonymous, though, the act of voting is the declarative culmination of a quintessential First Amendment process that cries out for First Amendment protection.
Surely, a fair chance to support and to vote for a candidate with a chance to win is as entitled to a degree of First Amendment protection against systematic state attack as is nude dancing,16 flag
15 In viva voce voting, the prevalent form of voting throughout the first half of the 19th century, a clerk calls the name of a voter who answers orally with the name of the preferred candidate. The clerk then enters the response in a poll book that constitutes a publicly available record of the vote of every citizen. Voting in Congress remains viva voce today. A widely used variant form of public voting called for each party to print its own ballot, or “ticket,” in characteristic colors, and to encourage voters to brandish the identifiably colored ticket before placing it into the ballot box. Public voting remained widespread throughout until the adoption of the secret Australian ballot in the late 19th century. See Donald A. Debats, How America Voted: By Voice, available at sociallogic.iath.virginia.edu (University of Virginia); Donald A. Debats, How the Other Half Voted: The Party Ticket States, available at sociallogic.iath.virginia.edu (University of Virginia).
16 Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991).
19

burning,17 cross burning,18 unlimited campaign spending,19 hate-mongering;20 lying;21 selling violent video games to children,22 depicting the violent death of small animals,23 advertising toothpaste,24 threatening an ex-spouse on the Internet;25 and trademarking racist epithets.26 Amici have no quarrel with the vigor and intensity of the Court’s protection of First Amendment freedoms in such settings. Indeed, amici applaud the Court’s energetic protection of First Amendment freedoms. It is, however, time to deploy the Court’s abundant First Amendment energy to protect the right to participate in a genuinely contestable election. On numerous occasions, the Court has recognized that voting, running for office, participating in electoral campaigns, and interacting with a democraticallyelected representative are quintessential exercises of free speech, association, and redress of grievances, at the core of the First Amendment, eg., Williams v. Rhodes, 393 U.S. 23, 30 (1968); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Reynolds v. Sims, 377 U.S. 533, 554-56 (1964). Justice Black said it most eloquently in Wesberry v. Sanders, 376 U.S. 1, 17 (1964):
17 Texas v. Johnson, 491 U.S. 397 (1989)
18 Virginia v. Black, 538 U.S. 343 (2003)
19 Buckley v. Valeo, 424 U.S. 1 (1976)
20 Snyder v. Phelps, 562 U.S. 443 (2011)
21 United States v. Alvarez, 132 S. Ct. 2537 (2012)
22 Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011)
23 United States v. Stevens, 559 U.S. 460 (2010)
24 Expressive Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017)
25 Elonis v. United States, 135 S. Ct. 2001 (2015)
26 Matal v. Tam, 137 S. Ct. 1744 (2017)
20

No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.
It is, amici suggest, long past time to convert the Court’s often-eloquent observations about the intimate relationship between participating in the democratic process and the First Amendment into a First Amendment-based law of democracy. This Court has already deployed the First Amendment effectively to protect members of political parties from dilution of their associational interests,27 and to guaranty wealthy individuals and powerful entities the right to raise and spend unlimited sums in an effort to influence the outcome of the democratic process.28 It is now time to deploy the First Amendment to protect the right to vote in, and to enjoy fair representation through, genuinely contestable legislative elections, whenever such a contestable election is feasible.
C. The Advantages of Recognizing a First Amendment Right to Participate, When Possible, in a Genuinely Contestable Election
Viewing massive political gerrymandering through a First Amendment lens avoids the twin pitfalls of “purpose” and “baseline” that have, thus far, prevented this Court from providing an effective check on an out-of-control partisan gerrymandering process that virtually all agree is destructive of
27 California Democratic Party v. Jones, 530 U.S. 567 (2000) 28 Citizens United v. FEC, 558 U.S. 310 (2010)
21

American democracy. Since this Court usually measures the existence of a violation of free speech or free association by a regulation’s effect, and not by the purpose or intent of the person or persons who promulgated it,29 viewing massive political gerrymandering through a First Amendment lens would obviate the need to define a level of subjective dysfunction, and free the courts from the complex and time-consuming task of exploring the subjective state of mind of the principal actors. Instead, a reviewing court would ask, simply, whether the gerrymander’s demonstrable effect is to rig the outcomes of as many elections as possible, despite the feasible opportunity for significant numbers of genuinely contestable elections.
Equally important, as in the Court’s one-person one vote cases, a clear baseline would exist in most cases to determine whether a state had violated the First Amendment by systematically suppressing the emergence of contestable elections. Given modern technology, it is a relatively easy matter to demonstrate the potential number of genuinely contestable election districts in any jurisdiction by tentatively drawing a series of potential district lines that create the maximum number of “swing” (no significant electoral advantage) or “contestable” (electoral advantages of not more than 55%-45%) that conform to traditional criteria of contiguity and respect for existing political sub-divisions, while satisfying the constitutional requirement of oneperson one-vote. Applying such an objective standard of potential contestability, many, perhaps most legislative races in Wisconsin could be made
29 O’Brien v. United States, 391 U.S. 367 (1968)
22

genuinely competitive. It is also relatively easy to calculate the probable electoral contestability of each district in a given reapportionment plan by consulting widely-available voter records providing both party affiliation, and past election performance. Once such data is known, the number of “landslide” and “safe” seats where the winner is a foregone conclusion may be readily calculated.
When, as here, a transient majority confronts a Wisconsin electoral map where millions of voters could enjoy the First Amendment rights of speech, association and voting incident to participating in a contested legislative election, and unjustifiably reduces the number of voters who can actually enjoy such First Amendment rights to a minimum, it has systematically deprived its electorate of its most important First Amendment right.
Finally, existing First Amendment doctrine would provide a reviewing court with a flexible menu of options with which to approach unjustifiable incursions on the right to vote. In Burdick, both Justice White, writing for the Court, and Justice Kennedy in dissent, shied from recognizing the act of casting a ballot as a form of pure speech, fearing that assertive First Amendment review would deprive election officials of power to regulate effectively. 504 U.S. at 438-439 (White, J.); 445 (Kennedy, J.). A decision to apply current First Amendment doctrine to systematic restrictions on voter choice would not, however, doom regulations designed to allow efficient and orderly voting. See Burson v. Freeman, 504 U.S. 191 (1992) (applying strict scrutiny to uphold ban on electioneering too close to the polls). Moreover, the Court could elect to view the formal act of voting as a form of expressive conduct, triggering intermediate
23

levels of scrutiny similar to the test deployed in O’Brien v. United States, supra. See Turner Broadcasting System, Inc. v FCC, 512 U.S. 622 (1994); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997). See also Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) (discussing First Amendment tests applied in commercial speech settings). Whatever standard of review the Court choose to invoke would avoid the technical roadblocks associated with Equal Protection analysis, while shifting the playing field to a jurisprudence made to order for the protection of our most cherished political right.
Difficult issues will remain to be considered in future cases. For example, to what extent can a desire to respect incumbency justify a modest deviation from the number of otherwise contestable districts, analogous to the 10% population deviation permitted under the one-person one-vote doctrine?30 Can other factors, such as economic interest, race, or class ever justify such a deviation? Should the concept of contestability remain anchored at 55%-45%? On this record, however, no doubt exists that Wisconsin has unconstitutionally suppressed the First Amendment rights of its voters to enjoy a reasonable opportunity to exercise a meaningful choice in a legislative election that really matters.
30 See Cox v. Larios, 542 U.S. 947 (2004) (summarily affirming three-judge court rejection of Democratic political gerrymander at the margin of a 10% population deviation).
24

CONCLUSION
Athenian democracy selected many of its representatives by lot.31 No one would, today, confuse such a random selection process with a genuine exercise in democracy, precisely because it lacks the one crucial attribute of a modern democracy—the constituent’s ability to exercise a free, genuine choice over who his or her representative will be. The massive Wisconsin partisan gerrymander before this Court would not even satisfy Athenian democracy, which, at least, sought to generate a legislature roughly reflective of the people it purported to represent. In its blind search for unfair partisan advantage, the transient majority controlling Wisconsin’s legislature has managed to eliminate both the idea of a meaningful choice in a contestable election, and the goal of fair and accurate representation, from its vision of rabidly partisan government. The decision of the three-judge court below should be affirmed.
Dated: September 1, 2017
Respectfully submitted,
Burt Neuborne Counsel of Record
Norman Dorsen (1930-2017)* 40 Washington Square South New York, New York 10012 (212) 998-6172 burt.neuborne@nyu.edu
Counsel for Amici Curiae
31 Bernard Mann, The Principles of Representative Government, 79-94 (1997) (describing Athenian process). * Professor Norman Dorsen died on July 1, 2017, during the preparation of this brief.
25

 
 No. 16-1161

IN THE
Supreme Court of the United States
———— BEVERLY R. GILL, et al.,
Appellants, v.

WILLIAM WHITFORD, et al.,
Appellees. ———— On Appeal from the United States District Court for the Western District of Wisconsin ———— BRIEF OF AMICI CURIAE POLITICAL SCIENCE PROFESSORS IN SUPPORT OF APPELLEES AND AFFIRMANCE ————

September 5, 2017

ROBERT A. ATKINS Counsel of Record
NICHOLAS GROOMBRIDGE ANDREW J. EHRLICH PIETRO SIGNORACCI MICHAEL PERNICK PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 ratkins@paulweiss.com
Attorneys for Amici Curiae

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ iv
INTEREST OF AMICI ........................................ 1
INTRODUCTION AND SUMMARY OF ARGUMENT .............................................. 1
ARGUMENT........................................................ 3
I. THIS REDISTRICTING CYCLE HAS FEATURED HIGHLY DURABLE PARTISAN BIAS ...................................... 3
A. Voter Behavior Is Predictable and Exploitable, Permitting Mapmakers to Create Intentionally Discriminatory Maps with Durable Bias ..................... 4
1. Partisan Identity Is Highly Stable and Predictable .............................. 4
2. Mapmakers Have Been Able to Assess Partisan Affiliation Through Publicly Available Records That Provide Granular Indicia of How Particular Voters Will Behave .................................... 9
3. Statistical Techniques and MapBuilding Technologies Have Provided Mapmakers with the Means to Operationalize Their Knowledge of Voter Behavior and Create Durably Biased Maps ........ 12
B. Wisconsin’s 2011 Assembly Map Is a Product of Contemporary Gerrymandering Techniques .............. 15
(i)

ii TABLE OF CONTENTS—Continued

Page

II. PARTISAN GERRYMANDERS WILL ONLY BECOME MORE EXTREME IN THE ABSENCE OF JUDICIAL INTERVENTION...................................... 17
A. Because of Advances in Data Analytics, Corporations and Scientific Researchers Are Able to Predict Individual Human Behavior with Substantial Accuracy .......................... 18
B. The Same Tools Employed in Business and Science Will Be Deployed to Enable Optimal Gerrymandering Schemes That Also Comply with Traditional Redistricting Principles ............................................. 23
1. Political Parties Will Leverage the Same Developments in Data Analytics That Have Benefitted Commercial and Scientific Enterprises ..................................... 23
2. “Matched-Slice” Gerrymandering Schemes Designed to Maximize Partisan Bias Will Become Possible in the Near Future .......... 26
3. Future Redistricting Efforts Could Result in Maps That Are Even More Durably Biased While Complying with Traditional Mapmaking Principles ................... 28

iii TABLE OF CONTENTS—Continued

Page

III. SOCIAL SCIENCE PROVIDES OBJECTIVE MEASURES AND RELIABLE TOOLS THAT COURTS COULD USE TO EVALUATE THE PARTISAN BIAS IN MAPS ..................... 30
A. Contemporary Social Science Provides a Range of Methods to Detect Partisan Bias ........................... 32
B. Computer Simulations Provide Additional Tools to Assess Partisan Bias ...................................................... 34
CONCLUSION .................................................... 35
APPENDIX: List of Amici ................................... 1a

iv TABLE OF AUTHORITIES

CASES

Page(s)

Bethune-Hill v. Va. Bd. of Elections, 137 S. Ct. 788 (2017)........................................ 32
City of Greensboro v. Guilford Cty. Bd. of Elections, No. 1:15-CV-559, 2017 WL 1229736 (M.D.N.C. Apr. 3, 2017) ............................ 34
Common Cause v. Rucho, No. 1:16-CV-1026, 2017 WL 876307 (M.D.N.C. Mar. 3, 2017) ........................... 33
Cooper v. Harris, 137 S. Ct. 1455 (2017)............................... 32
Davis v. Bandemer, 478 U.S. 109 (1986)................................... 29
LULAC v. Perry, 548 U.S. 399 (2006)............................. 30, 32, 34
Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016)..................... 34
Thornburg v. Gingles, 478 U.S. 30, 58 (1986)............................... 31
Vieth v. Jubelirer, 541 U.S. 267 (2004)............................. 30, 32, 34

COURT FILINGS

Findings of Fact and Conclusions of Law Filed by the Common Cause Plaintiffs, Common Cause v. Rucho, No. 1:16-CV1026-WO-JEP (M.D.N.C. June 5, 2017)... 14

v
TABLE OF AUTHORITIES—Continued
Page(s)
Memorandum in Support of Plaintiffs’ Rule 65(a) Motion for a Preliminary Injunction and to Advance and Consolidate the Trial on the Merits, or, in the Alternative, for Summary Judgment, Benisek v. Lamone, No. 13-cv-3233 (D. Md. May 31, 2017) ..... 14, 15
OTHER AUTHORITIES
Alan I. Abramowitz & Steven Webster, The Rise of Negative Partisanship and the Nationalization of U.S. Elections in the 21st Century, 41 Electoral Stud. 12 (2016) ......................................................... 6, 7, 8
Stephen Ansolabehere & Bernard L. Fraga, Do Americans Prefer Coethnic Representation? The Impact of Race on House Incumbent Evaluations, 68 Stan. L. Rev. 1553 (2016) ................................... 5
Brennan Ctr. for Justice, A 50 State Guide to Redistricting (2011), http://www.bren nancenter.org/publication/50-state-guideredistricting/.............................................. 28
Caliper, Maptitude for Precinct and Election Management (2011), http:// www.caliper.com/PDFs/MaptitudePEBro chure.pdf ................................................... 13
Caliper, Maptitude Software, Data, and Services for Redistricting (2016), http:// www.caliper.com/PDFs/Maptitude%20for %20Redistricting%20Brochure.pdf........... 12

vi
TABLE OF AUTHORITIES—Continued
Page(s)
Caliper, Political Maptitude (2002), http:// www.caliper.com/pdfs/politicalmaptbroch ure.pdf ....................................................... 13
Canvass Results for 2012 Presidential and General Election, Wisconsin Elections Commission (Nov. 6, 2012), http://elec tions.wi.gov/sites/default/files/Amended% 20Percentage%20Results-11.6.12%20Pre sident.pdf................................................... 17
David Carr, Giving Viewers What They Want, N.Y. Times (2013), http://www. nytimes.com/2013/02/25/business/media/f or-house-of-cards-using-big-data-to-guara ntee-its-popularity.html ........................... 20
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L.J. (forthcoming 2017)............................. 34
Jowei Chen & David Cottrell, Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the U.S. House, 44 Electoral Stud. 329 (2016) ........................ 33-34
Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015) .................................................. 34

vii TABLE OF AUTHORITIES—Continued

Page(s)

Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016) .......................................... 34

Cary Coglianese & David Lehr, Regulating by Robot: Administrative Decision Making in the Machine-Learning Era, 105 Geo. L.J. 1147 (2017) ........................passim

Adam B. Cox & Richard T. Holden, Reconsidering Racial and Partisan Gerrymandering, 78 U. Chi. L. Rev. 553 (2011)......................................................... 27, 28

Charles Duhigg, How Companies Learn Your Secrets, N.Y. Times (Feb. 16, 2012), http://www.nytimes.com/2012/02/19/mag azine/shopping-habits.html ...................... 19

Elections, ArcGIS for Loc. Gov’t, http:// solutions.arcgis.com/local-government/el ections/ (last visited Aug. 30, 2017) ......... 13

Christopher S. Elmendorf, From

Educational

Adequacy

to

Representational Adequacy: A New

Template for Legal Attacks on Partisan

Gerrymanders (Feb. 22, 2017), http://

www.ssrn.com/abstract=2916294 ............passim

viii
TABLE OF AUTHORITIES—Continued
Page(s)
Chris Evans, It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age, 13 Minn. J.L. Sci. & Tech. 867 (2012) .................................... 10, 11
Fed. Trade Comm’n, Data Brokers: A Call for Transparency and Accountability (2014), https://www.ftc.gov/system/files/ documents/reports/data-brokers-call-tran sparency-accountability-report-federal-tra de-commission-may-2014/140527databrok erreport.pdf................................................. 20, 21
John N. Friedman & Richard T. Holden, Optimal Gerrymandering: Sometimes Pack, but Never Crack, 98 Am. Econ. Rev. 113 (2008) .................................................. 26, 27
Donald Green, Bradley Palmquist & Eric Schickler, Partisan Hearts and Minds (2002) ......................................................... 5
Donald P. Green, Bradley L. Palmquist, & Eric Schickler, Partisan Stability: Evidence from Aggregate Data, in Controversies in Voting Behavior (Richard G. Niemi & Herbert F. Weisberg eds., 4th ed. 2001) ..................................... 5
Bernard Grofman & Thomas L. Brunell, The Art of the Dummymander: The Impact of Recent Redistrictings on the Partisan Makeup of Southern House Seats, in Redistricting in the New Millennium (Peter Galderisi ed., 2005) ... 29

ix
TABLE OF AUTHORITIES—Continued
Page(s)
David Hawkings, The Incredible Shrinking Split Tickets, Roll Call (Feb. 1, 2017, 7:04 AM), http://www.rollcall.com/news/haw kings/polarized-politics-split-tickets-midt erms ........................................................... 8
Brian Hayes, Built for Speed: Designing Exascale Computers, Topics (Harvard Sch. of Eng’g & Applied Scis., Cambridge, Mass.), Summer 2014, http://www.seas. harvard.edu/news/2014/07/built-for-speeddesigning-exascale-computers.................. 18-19
Max N. Helveston, Consumer Protection in the Age of Big Data, 93 Wash. U. L. Rev. 859 (2016) .................................................. 18
Eitan D. Hersh, Hacking the Electorate: How Campaigns Perceive Voters (2015) ....passim
Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A Social Identity Perspective on Polarization, 76 Pub. Opinion Q. 405 (2012) ...................... 6
Shanto Iyengar & Sean J. Westwood, Fear and Loathing Across Party Lines: New Evidence on Group Polarization, 59 Am. J. Pol. Sci. 690 (2014)................................ 6
Matthew LaGarde, In Re 2012 Legislative Redistricting: Maryland High Court Decision Exemplifies Lackluster Federal Guidance on Redistricting, 74 Md. L. Rev. 653 (2015).......................................... 13

x
TABLE OF AUTHORITIES—Continued
Page(s)
Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm & Evolutionary Computation 78 (2016) ............................. 34
David B. Magleby & Candice Nelson, Independent Leaners as Policy Partisans: An Examination of Party Identification and Policy Views, The Forum, Oct. 2012 . 7
Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312 (2015) ..... 33
Anthony J. McGann et al., Gerrymandering in America (2016)...................................... 3
Glenn J. McLoughlin & Ian F. Fergusson, Cong. Research Serv., RL31175, High Performance Computers and Export Control Policy: Issues for Congress (2003)............. 18
David W. Nickerson & Todd Rogers, Political Campaigns and Big Data, 28 J. Econ. Persp. 51 (2014) .................... 9, 10, 25, 26
Pew Research Ctr., A Deep Dive into Party Affiliation (2015), http://www.people-pre ss.org/files/2015/04/4-7-2015-Party-ID-rele ase.pdf ....................................................... 6-7

xi
TABLE OF AUTHORITIES—Continued
Page(s)
Pew Research Ctr., Partisanship and Political Animosity in 2016 (2016), http://assets.pewresearch.org/wp-content/ uploads/sites/5/2016/06/06-22-16-Partisa n ship-and-animo sity-release.pdf ............ 7
Pew Research Ctr., Political Polarization in the American Public (2014), http://www. people-press.org/files/2014/06/6-12-2014Politi cal-Polarization-Release.pdf ........... 6
Neil M. Richards & Jonathan H. King, Big Data Ethics, 49 Wake Forest L. Rev. 393 (2014) ......................................................... 21
Steven Rogers, National Forces in State Legislative Elections, 667 Annals Am. Acad. Pol. & Soc. Sci. 207 (2016) .............. 8
Laura Royden & Michael Li, Brennan Ctr. for Justice, Extreme Maps (2017) ............. 3, 14
Ira S. Rubinstein, Voter Privacy in the Age of Big Data, 2014 Wis. L. Rev. 861 (2014)... 10
Matthew U. Scherer, Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies, 29 Harv. J.L. & Tech. 353 (2016)............................ 18
Corwin D. Smidt, Polarization and the Decline of the American Floating Voter, 61 Am. J. Pol. Sci. 365 (2017) ................... 5, 6

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TABLE OF AUTHORITIES—Continued
Page(s)
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) ......................................................... 32
Omer Tene & Jules Polonetsky, Big Data for All: Privacy and User Control in the Age of Analytics, 11 Nw. J. Tech. & Intell. Prop. 239 (2013) ............................ 19, 20, 21, 23
Omer Tene & Jules Polonetsky, Privacy in the Age of Big Data: A Time for Big Decisions, 64 Stan. L. Rev. Online 63 (2012) ......................................................... 19
M. Mitchell Waldrop, More than Moore, 530 Nature 144 (2016) ..................................... 18
Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263 (2016) ......................................................... 33

INTEREST OF AMICI1
Amici Curiae are all nationally recognized university research scholars and political scientists whose collective studies on electoral behavior, voter identity, and redistricting in the United States have been published in leading scholarly journals and books. See infra Appendix.
Amici have extensive professional knowledge and experience that will be relevant and helpful to the Court. Amici are among the leading scholars to study the predictability of voter behavior and the mechanisms redistricting mapmakers use to harness data relating to voter behavior and characteristics when preparing redistricting plans. Amici are well positioned to predict how recent developments in the availability of data on voters, the capabilities of mapmaking software, and the capacities of data analysis tools are likely to influence the 2020 redistricting cycle and beyond.
INTRODUCTION AND SUMMARY OF ARGUMENT
The past decade has seen an explosion in data gathering and data analytics. This explosion is poised to have a significant impact on mapmaking and plan analysis in the redistricting context.
Mapmakers have at their disposal more data—and more accurate data—about individual voters than ever before. Mapmakers have access to sophisticated
1 This brief amici curiae is filed with the consent of all parties. No counsel for any party authored this brief in whole or in part. No person other than amici and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

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analytical software and technology allowing them to leverage this data to predict and exploit voter behavior with a high degree of accuracy. These new and enhanced data and tools—coupled with the demonstrated stability of partisan identity and increasing stability of partisan behavior—allow mapmakers seeking to engineer a gerrymander to sort through a vast array of maps and select those that would entrench the most extreme partisan bias, all without violating historical redistricting principles.2 As a result, gerrymandering techniques that were only theoretical in the 2010 redistricting cycle could become commonplace in the 2020 redistricting cycle and beyond.
The most recent redistricting cycle already saw less complex versions of these techniques deployed at the national and local level. The use of these techniques corresponded with the emergence of maps that are durably biased, predictably and consistently favoring the party that controlled the redistricting process. In light of intervening developments, however, voters face a future of gerrymanders that are even more biased and more durable, and yet less irregularlooking than ever before. As a result, district shape will be a less reliable guide for identifying an unconstitutional partisan gerrymander.
Crucially for the courts, the tools that enable mapmakers to draw such precise and durable maps also enable factfinders to diagnose the most extreme examples of bias in redistricting. Just as social science and technology have facilitated and will facilitate
2 A “durable” gerrymander is one in which the gerrymandering party retains control of the legislature for multiple election cycles spanning the entire decennial period following its implementation of the gerrymander.

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partisan gerrymandering, they can be used to identify such gerrymandering when it does occur.

ARGUMENT

I. THIS REDISTRICTING CYCLE HAS

FEATURED

HIGHLY

DURABLE

PARTISAN BIAS

After the 2010 Census, congressional and state legislative maps were redrawn en masse. As a whole, the new maps displayed “a sharp increase in partisan bias” as compared to the prior cycle’s maps. Anthony J. McGann et al., Gerrymandering in America 56, 87, 97 (2016). A subset of the resulting maps have demonstrated extreme and durable partisan bias in favor of one party. See id.; Laura Royden & Michael Li, Brennan Ctr. for Justice, Extreme Maps 1 (2017) (measuring the performance of Congressional maps over the 2012, 2014, and 2016 elections under three measures of partisan asymmetry); J.A. App. SA224 (Expert Report of Simon Jackman). Mapmakers can intentionally engineer this kind of bias through the redistricting process. They have this ability because voter behavior is both predictable and exploitable through a combination of data gathering, data analysis, and map-drawing techniques and technology. Versions of these data, techniques, and technologies were deployed throughout the 2011 cycle in redistricting processes that generated maps with high bias, including Wisconsin’s redistricting process.

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A. Voter Behavior Is Predictable and Exploitable, Permitting Mapmakers to Create Intentionally Discriminatory Maps with Durable Bias
Extreme gerrymanders are made possible by three basic facts, which were never found together in prior redistricting cycles. First, partisan affiliation and voter behavior are highly stable and predictable, making the partisan affiliation of voters a fact that mapmakers can rely on. Second, there is now a wealth of data available to mapmakers about voters that allow them to predict voter behavior with a high degree of accuracy. Third, there are new and advanced statistical and map drawing applications that mapmakers can use to prepare maps.
1. Partisan Identity Is Highly Stable and Predictable
As a general matter—and despite suggestions to the contrary3—the partisan identity of voters is highly stable and does not change from election to election. This allows mapmakers to rely on partisan identity when preparing gerrymandered maps.4
3 See Br. of Amicus Curiae Nat’l Republican Cong. Comm. (“NRCC”) in Supp. of Appellants 42 (“Party affiliation is not set in stone or in a voter’s genes . . . .” (quoting J.S. App. 242a (Griesbach, J., dissenting))); Br. of Amicus Curiae Wis. Mfrs. & Commerce (“WMC”) in Supp. of Appellants 5 (“[P]arty affiliation may be decisive or it may matter very little.”); Br. of Wis. State Senate in Supp. of Appellants 19 (“[E]quating a vote for an individual candidate to a vote for a statewide political party misguidedly assumes that the only factor determining voting behavior is political affiliation.”).
4 To be clear, the literature assessing partisan identity does not suggest that individual voters cannot think for themselves, nor does it suggest that partisan identity is the only factor that

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Voters are “socialized” into a particular party at an early age, and partisan affiliation tends to harden in early adulthood. See Donald Green, Bradley Palmquist & Eric Schickler, Partisan Hearts and Minds 10-11 (2002). Once formed, these “identities are enduring features of citizens’ self-conceptions,” and “remain intact during peaks and lulls in party competition.” Id. at 4-5. Indeed, partisan attachment remains among the strongest predictors of voter preferences, trumping sex, class, religion, and often race. Id. at 3; see also Stephen Ansolabehere & Bernard L. Fraga, Do Americans Prefer Coethnic Representation? The Impact of Race on House Incumbent Evaluations, 68 Stan. L. Rev. 1553 (2016). In addition, the distribution of partisan identities among the electorate “provides powerful clues as to how elections will be decided.” See Donald P. Green, Bradley L. Palmquist, & Eric Schickler, Partisan Stability: Evidence from Aggregate Data, in Controversies in Voting Behavior 356, 356 (Richard G. Niemi & Herbert F. Weisberg eds., 4th ed. 2001).
In recent years, the predictive power of partisan identity has only increased as partisan behavior has become more stable. Based on an analysis of American National Election Studies time-series data, the “observed rate of Americans voting for a different party across successive presidential elections has never been lower.” See Corwin D. Smidt, Polarization and the Decline of the American Floating Voter, 61 Am. J. Pol. Sci. 365, 365-81 (2017). As a result, each party has a
influences votes or that individual voting behavior can be predicted with absolute certainty. The social science does establish that data about partisan identity can be used to predict voter behavior with a very high degree of confidence and that partisan identity is stable over time.

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reliable and predictable “base of party support that is less responsive to short-term forces.” Id.
There also has been a measurable increase in the intensity of party preferences within the electorate, what is popularly referred to as “polarization”; although enthusiasm for partisans’ own parties has remained relatively stable over time, empirical evidence shows that “partisans like their opponents less and less.” Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A Social Identity Perspective on Polarization, 76 Pub. Opinion Q. 405, 412-15 (2012); see also Alan I. Abramowitz & Steven Webster, The Rise of Negative Partisanship and the Nationalization of U.S. Elections in the 21st Century, 41 Electoral Stud. 12 (2016). A Pew Research Report notes that “[t]oday, 92% of Republicans are to the right of the median Democrat, and 94% of Democrats are to the left of the median Republican.” Pew Research Ctr., Political Polarization in the American Public 6 (2014), http://www.people-press.org/files/2014/06/6-12-2014-P olitical-Polarization-Release.pdf. Uniform increases in affective polarization across parties since the 1980s have two important implications: Today’s partisans are less willing “to treat the actions of partisan opponents as legitimate,” and today’s partisan identification “is all encompassing and affects behavior in both political and nonpolitical contexts.” See Shanto Iyengar & Sean J. Westwood, Fear and Loathing Across Party Lines: New Evidence on Group Polarization, 59 Am. J. Pol. Sci. 690, 691, 705 (2014).
Independent voters are not immune from the effects of partisan intensity, since “[m]ost of those who identify as independents lean toward a party.” Pew Research Ctr., A Deep Dive into Party Affiliation 4 (2015), http://www.people-press.org/files/2015/04/4-7-

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2015-Party-ID-release.pdf. Voters who identify as independents but who lean towards a party generally exhibit policy opinions and voting behavior similar to outright partisans. David B. Magleby & Candice Nelson, Independent Leaners as Policy Partisans: An Examination of Party Identification and Policy Views, The Forum, Oct. 2012, Article 6, at 1, 17. Furthermore, independents who lean to one party or another “are far more likely to cite negative than positive factors for why they form their loose partisan ties”—that is, independent voters are likely to lean Democratic or Republican because they view the other party’s policies as harmful to the country. See Pew Research Ctr., Partisanship and Political Animosity in 2016, at 6 (2016), http://assets.pewresearch.org/wpcontent/uploads/sites/5/2016/06/06-22-16-Partisanshipand-animosity-release.pdf.
One metric that coincides with this shift towards increased partisanship is the well-documented decline of split-ticket voting.5 While split-ticket voting was commonly observed in the 1970s and 1980s, the 2012 election featured record high numbers of voters engaged in straight-ticket voting—that is, voting for the candidate for President from one party and voting for House or Senate members from the same party. See Abramowitz & Webster, supra, at 12, 13. The rate of straight-ticket voting in the presidential and House elections in 2012 was approximately 89%, resulting in a relationship between presidential and House election outcomes that was three times stronger than it was in the 1970s. Id. at 13, 18. The rate of straightticket voting in the presidential and Senate elections
5 Split-ticket voting refers to the phenomenon of a voter opting for the candidate from one party in the presidential election and the candidate of another party in the House or Senate elections.

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in 2012 was approximately 90%, resulting in a relationship between presidential and Senate election outcomes that was more than twenty-five times stronger than it was in the 1970s. Id. at 13, 19. This sort of party line voting also applies to statehouses. See, e.g., Steven Rogers, National Forces in State Legislative Elections, 667 Annals Am. Acad. Pol. & Soc. Sci. 207, 207-09, 220-22 (2016).
The decline in split-ticket voting coincides with a decline in split outcomes (i.e., congressional districts carried by a presidential candidate from one party, but won by a House candidate of the opposite party). See David Hawkings, The Incredible Shrinking Split Tickets, Roll Call (Feb. 1, 2017, 7:04 AM), http:// www.rollcall.com/news/hawkings/polarized-politics-sp lit-tickets-midterms.6
Occasional or isolated instances of districts changing party over two election cycles—or split outcomes in a single election cycle—are ultimately immaterial. Regardless of any individual examples of these phenomena,7 the consistency in partisan behavior from election to election, and the decline in split-ticket voting, are both well documented in the social science literature, as discussed above.
The concurrent phenomena of stable partisan identity as an indicator of voting preferences, intensifying partisanship, and the decline of ticketsplitting means that mapmakers are able to rely on
6 Due to the sharp decline of split-ticket voting, knowledge of top-ticket voting is becoming an increasingly useful proxy when assessing how people will vote in a legislative race, further enhancing the reliability of predictive voting models, discussed infra Section I.A.2.
7 See Br. of NRCC 42-44; Br. of WMC 6.

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the predictability of voter behavior when working to maximize the bias and durability of gerrymanders.
2. Mapmakers Have Been Able to Assess Partisan Affiliation Through Publicly Available Records That Provide Granular Indicia of How Particular Voters Will Behave
During the 2010 redistricting cycle, mapmakers had access to a wealth of publicly available information about individual voters.8 The quantity and granularity of voter data that has become available in recent years is unprecedented, and allows mapmakers to assess and predict partisan affiliation more accurately than ever.9 Political campaigns have always tried to predict the partisan affiliation of potential voters, but in recent years, political actors have increasingly relied on statistics and predictive analytics for use in campaigns. See David W. Nickerson & Todd Rogers, Political Campaigns and Big Data, 28 J. Econ. Persp. 51, 59 (2014) (observing that, as recently as a decade or two ago, political campaigns used techniques “to predict the tendencies of citizens [that] appear extremely rudimentary by current standards”). Although campaigns historically possessed considerable information drawn from census information and their
8 There are some variations in the quantity and quality of individual voter data from state to state.
9 Of course, mapmakers in many jurisdictions work with units larger than an individual, and much of redistricting is based on predictions about how groups of voters in small areas will behave. Those predictions, in turn, are based on aggregate data regarding individual voter affiliation and voter behavior in those small areas.

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own volunteers, they lacked the reams of data and computing power made available by modern technology. Id. at 52.
The increase in available public data has coincided with the rise of detailed voter databases, referred to as “augmented voter files,” which compile and curate this data for use by political campaigns. See Eitan D. Hersh, Hacking the Electorate: How Campaigns Perceive Voters 67 (2015). Augmented voter files contain traditional voter registration records that have been processed through data cleaning services and matched with substantial additional information, including but not limited to census data, consumer data compiled and sold by businesses, voter information collected by political campaigns, political contribution history, and even analytic scores designed to predict voters’ particular political characteristics. See id. at 66-69; Chris Evans, It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age, 13 Minn. J.L. Sci. & Tech. 867, 88384 (2012); Ira S. Rubinstein, Voter Privacy in the Age of Big Data, 2014 Wis. L. Rev. 861, 875-78. These types of augmented voter files—which are compiled by companies such as Catalist, Aristotle, and Voter Vault—are increasingly common resources available to political campaigns and mapmakers.10
10 There is anecdotal evidence that individualized voter data contained in augmented voter files may have been used by mapmakers in the 2010 cycle for the purpose of crafting gerrymanders. See Christopher S. Elmendorf, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders 44 n.222 (Feb. 22, 2017), http://www.ssrn.com/abstract=2916294.

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For example, Catalist—which provides augmented voter files predominantly for Democrats and progressive organizations—incorporates 700 different variables in its database, including “data from frequent-buyer cards at supermarkets and pharmacies, hunting-and fishing-license registries, catalog- and magazine-subscription lists, membership rolls from unions, professional associations, and advocacy groups.” Evans, supra, at 883. This information, of course, has uses beyond predicting voter behavior. Campaign clients can input any number of desired variables to make custom lists of voters they can then microtarget through emails, calls, and online political advertising. See Hersh, supra, at 71.
Catalist and other vendors use analytical models to assign a “continuous predictive score” to each citizen, giving clients “a prediction of partisanship and a prediction of turnout likelihood.” Id. at 72. This can be especially useful in determining the potential turnout of independent voters. As Professor Hersh notes:
Suppose a voter is registered independent, but in the analytics sample this voter is listed as likely married to someone else who is a registered Democrat. Catalist might predict that this type of independent voter leans Democratic.
Id. at 71. Catalist and other organizations further improve their predictive accuracy through the proprietary data given to them by clients, such as membership lists:
[I]f someone is registered independent but is a member of a pro-choice group and has told an Obama volunteer that he or she is

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supporting Obama, then Catalist might use these data points to predict that this person, despite being a registered independent, is likely to be a Democratic supporter.
Id. at 72. This combination of volunteered proprietary data and existing census and consumer data as inputs into potent prediction models allows campaigns to determine partisan affiliation and voter preferences at a level of precision that did not exist even in the recent past.
3. Statistical Techniques and Map-Building Technologies Have Provided Mapmakers with the Means to Operationalize Their Knowledge of Voter Behavior and Create Durably Biased Maps
During the 2010 redistricting cycle, mapmakers not only had access to expansive data sets that allowed them to accurately predict voter behavior, but they also had access to new and/or improved redistricting software. This software, combined with modern statistical techniques, allowed mapmakers to tailor durably biased maps.
One of the most popular of these tools is “Maptitude for Redistricting,” a program offered by Caliper Corporation, which advertises that “[i]t is used by a super-majority of the state legislatures, political parties, and public interest groups.” Caliper, Maptitude Software, Data, and Services for Redistricting 1 (2016), http://www.caliper.com/PDFs/Maptitude%20for%20Red istricting%20Brochure.pdf.11 Similar to the data
11 Caliper Corporation offers a complete range of Maptitude products to assist those involved at all stages of the redistricting and electoral process. In addition to “Maptitude for Redistricting,” Caliper offers Political Maptitude for campaigns,

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analytics used by political firms to create voter databases, “Maptitude allows a user to control for virtually every possible factor or outcome affecting or resulting from redistricting, including past election results, compactness, population deviation, race, communities of interest, and past legislative apportionment plans.” See Matthew LaGarde, In Re 2012 Legislative Redistricting: Maryland High Court Decision Exemplifies Lackluster Federal Guidance on Redistricting, 74 Md. L. Rev. 653, 674 (2015).
Maptitude is not the only software available to mapmakers. ESRI produces software that allows its users to leverage geographic and demographic data about voters and prepare biased maps with precision. ESRI’s products are easy to use, and, like Maptitude, even allow novice software users to quickly and easily develop redistricting plans based on customizable data sets, including data that predicts the projected partisan affiliation of voters. See Elections, ArcGIS for Loc. Gov’t, http://solutions.arcgis.com/local-governme nt/elections/ (last visited Aug. 30, 2017).
Mapmakers aligned with Republicans and those aligned with Democrats used similar techniques and technologies in crafting maps in the most recent redistricting cycle. Maptitude, for example, was used in North Carolina’s redistricting process by a consultant retained by the leadership of the state’s
which is used by political campaigns to fine-tune campaign strategy and deploy resources, as well as Maptitude for Precinct and Election Management, which is used by many local government agencies to draw election districts and manage lists of voters. See Caliper, Political Maptitude (2002), http://www. caliper.com/pdfs/politicalmaptbrochure.pdf; Caliper, Maptitude for Precinct and Election Management (2011), http://www. caliper.com/PDFs/MaptitudePEBrochure.pdf.

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Republican Party. See Findings of Fact and Conclusions of Law Filed by the Common Cause Plaintiffs at 8, 40, Common Cause v. Rucho, No. 1:16CV-1026-WO-JEP (M.D.N.C. June 5, 2017). In North Carolina, Maptitude was loaded with past election data, allowing the consultant to view the data, assign to it a color “thematic” that would show “the partisan voting history of a given unit of geographical area, most importantly at the level of a single voter district.” Id. at 8. After color coding Democratic or Republican voter districts and counties, the consultant “then assigned them to districts that were designed to maintain the Republican Party’s 10-3 partisan advantage.” Id. at 40. The maps that emerged from North Carolina’s multiple rounds of redistricting this cycle, including court-ordered redistricting, have displayed substantial and durable bias. See id. at 2-4; Royden & Li, supra, at 1, 6, 9.
Similarly, in Maryland, Democratic party leadership retained NCEC Services, a D.C.-based analyst group, to create a gerrymandered map in the wake of the 2010 census. Memorandum in Support of Plaintiffs’ Rule 65(a) Motion for a Preliminary Injunction and to Advance and Consolidate the Trial on the Merits, or, in the Alternative, for Summary Judgment at 6-7, Benisek v. Lamone, No. 13-cv-3233 (D. Md. May 31, 2017). Using mapping software, census data, and partisan voting algorithms, NCEC Services designed a map with an eye to guaranteeing that at least seven Democrats would be elected each Congressional term. See id. at 12. The team of analysts had access to substantial information when building the map, including precinct-level voter registration, voter turnout, and election results for primary and general elections for each level of government. Id. at 4. The analysts were then able to link these extensive

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data to Maptitude to create different hypothetical districts and gauge potential election results for each configuration. Id. at 7. Each map was evaluated according to its predicted Democratic performance, and the NCEC team created a spreadsheet comparing various map results. Id. at 8, 10. Moreover, any NCEC consultant could manipulate the map in real time and solicit feedback from party leadership based on how the districts shifted and how the projected results varied. Id. at 9-10. Under the maps that emerged from this process, Democrats won seven out of eight of Maryland’s congressional districts. In Maryland’s Sixth congressional district, which was historically a safe Republican seat, the Democrats won by 21-points—the largest redistricting swing of any congressional district in the country. Id. at 27.
B. Wisconsin’s 2011 Assembly Map Is a Product of Contemporary Gerrymandering Techniques
Wisconsin’s Act 43—the subject of this case—was the product of similar techniques and technologies. After the 2010 election, when the voters of Wisconsin elected a Republican majority, the Republican leadership retained a team of lawyers, consultants, and political scientists to redraw Wisconsin’s congressional map. J.S. App. 12a-14a.
Wisconsin’s redistricting team—like many redistricting teams in the most recent cycle—prepared maps using modern redistricting software that made use of demographic and political data. Wisconsin’s redistricting software, AutoBound, like other redistricting software discussed supra Section I.A.3, allows its users to draw different district boundaries with “customized demographic data.” J.S. App. 17a (internal quotation marks omitted). That data included

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a “composite partisan score,” a metric the redistricting team developed to “assess the partisan make-up” of election districts. J.S. App. 17a. These scores were based on the analysis of past election results throughout the state and were “tested . . . against . . . [a] regression model” prepared by a social scientist “to assess the partisanship of . . . Assembly maps.” J.S. App. 14a-17a. Using their “composite score,” the redistricting team was able to “evaluate the statewide maps that they had drawn based on the level of partisan advantage that they provided to Republicans.” J.S. App. 19a. They collected the partisan outcomes of each map in a spreadsheet for comparison purposes. J.S. App. 19a-20a.
In addition, for each potential map, the team computed an “S” curve”12 to “show how each map would operate within an array of electoral outcomes.” J.S. App. 22a. This technique allowed Wisconsin’s redistricting team to test various maps and predict, with a high degree of confidence, whether a map would allow Republicans to retain control of the Assembly even in hypothetical years when Democrats perform well across the state.
The redistricting team presented a series of maps to Republican leadership, who selected what they called the “Team Map”—a map designed to ensure that Republicans would maintain a majority under “any likely voting scenario.” J.S. App. 24a-27a. Under the Team Map, the Republicans “would maintain a 54 seat majority while garnering only 48% of the statewide
12 The “S” curve technique provided a visual depiction of how each party’s vote share in a hypothetical election would translate to the number of Assembly seats that party would secure under the given map scenario. J.S. App. 22a.

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vote. The Democrats, by contrast, would need 54% of the statewide vote to capture a majority.” J.S. App. 27a. The redistricting team believed that they had engineered a map that would entrench Republican control for the decade. As notes prepared by one of the members of the redistricting team for a presentation to the Republican caucus stated, “[t]he maps [the legislature was set to] pass will determine who’s here 10 years from now.” J.S. App. 28a.
In 2012, under the maps that emerged from this process, Democrats won 51.4% of the two-party vote, yet won only 39 seats in the 99 seat legislature (39.4%). See J.A. App. SA184, SA249 (Expert Report of Simon Jackman); Canvass Results for 2012 Presidential and General Election, Wisconsin Elections Commission (Nov. 6, 2012), http://elections.wi.gov/ sites/default/files/Amended%20Percentage%20Results11.6.12%20President.pdf. Republican control has proven to be durable under these maps, as the Republicans have retained and expanded their majority in the subsequent years. See Canvass Results for 2012 Presidential and General Election, supra.
II. PARTISAN GERRYMANDERS WILL ONLY BECOME MORE EXTREME IN THE ABSENCE OF JUDICIAL INTERVENTION
As powerful as current methods are, predictive modeling and other large-scale analytical tools will become even more potent in the near future. New technologies and data sources, such as “augmented” voter files and modern machine-learning algorithms, will make it easier for mapmakers to predict the decision-making habits of Americans to a more nuanced and accurate level than ever before. When applied to the process of redistricting, new data analysis techniques will enable partisan mapmakers

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to create gerrymanders that are even more biased, more durable, and less irregular-looking.
A. Because of Advances in Data Analytics, Corporations and Scientific Researchers Are Able to Predict Individual Human Behavior with Substantial Accuracy
Businesses and scientific researchers provide a salient indicator of how data analytics will be leveraged for political purposes. Like a political party, these entities are interested in predicting the behavior of a large subset of individuals. See Max N. Helveston, Consumer Protection in the Age of Big Data, 93 Wash. U. L. Rev. 859, 869-70 (2016). “Nearly every business and governmental entity collects information that is (or could be) used in” large-scale data analysis, and both groups have been able to generate individualized, predictive models of human behavior of the sort political actors will use. See id.
In recent years, computer performance has improved exponentially as a result of engineering innovation. See M. Mitchell Waldrop, More than Moore, 530 Nature 144, 145 (2016).13 Harnessing this massive
13 While most off-the-shelf desktop computers available to consumers in 2001 could perform up to 6 billion operations per second, the average laptop in 2012 was capable of tackling 50 billion operations in the same fraction of time. Compare Glenn J. McLoughlin & Ian F. Fergusson, Cong. Research Serv., RL31175, High Performance Computers and Export Control Policy: Issues for Congress 3 (2003), with Matthew U. Scherer, Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies, 29 Harv. J.L. & Tech. 353, 375 n.81 (2016). Computer performance continues to improve as different processor “cores” on each microprocessor chip can be put to work on different parts of a single task at the same time. See Brian Hayes, Built for Speed: Designing Exascale Computers, Topics

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improvement in computing power, as well as advances in data mining and analytics, businesses have been able to predict individual consumer behavior with remarkable confidence. See Omer Tene & Jules Polonetsky, Big Data for All: Privacy and User Control in the Age of Analytics, 11 Nw. J. Tech. & Intell. Prop. 239, 239, 245-50, 253-54 (2013) [hereinafter Tene & Polonetsky, Big Data for All]; see also Omer Tene & Jules Polonetsky, Privacy in the Age of Big Data: A Time for Big Decisions, 64 Stan. L. Rev. Online 63, 6465 (2012). For years, corporations have used advanced analytical tools to learn about their customers’ general preferences, to aid in their purchasing decisions, and to gather marketing data. See Tene & Polonetsky, Big Data for All, supra, at 243-50, 253-54. However, corporations can now also predict increasingly subtle attributes of their consumers in order to optimize purchasing decisions. For example, traditional brick and mortar retailers can now study customer foot movements and the time spent in various aisles in order to optimize their store layout, their mix of goods, and the shelf position of their products. Id. at 249. Corporations are now even able to deduce intimate personal details about their customers by comparing their purchasing decisions with those of thousands of other consumers. See Charles Duhigg, How Companies Learn Your Secrets, N.Y. Times (Feb. 16, 2012), http://www.nytimes.com/2012/02/19/magazine/ shopping-habits.html (featuring a Target employee concluding that a customer who bought “cocoa-butter lotion, a purse large enough to double as a diaper bag,
(Harvard Sch. of Eng’g & Applied Scis., Cambridge, Mass.), Summer 2014, http://www.seas.harvard.edu/news/2014/07/builtfor-speed-designi ng-exascale-computers.

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zinc and magnesium supplements and a bright blue rug” has an 87% chance of being pregnant).14 Similarly, scientific researchers have leveraged advances in data analytics to discover unintuitive and nonlinear relationships between data and human behavior. For example, by analyzing over-the-counter sales of healthcare remedies such as cough medicine, health officials are able to anticipate short-term trends in illness transmission. Tene & Polonetsky, Big Data for All, supra, at 246.
Data analytics have grown more potent due to two important developments: (1) greater commercial availability of compiled data about Americans; and (2) more powerful and nuanced data analysis techniques.
First, businesses and other entities have access to a greater amount of raw data about consumers. Corporations can either gather their own data, or work with firms who specialize in gathering and analyzing consumer purchasing information. These “data brokers,” ranging from startups to established entities such as Acxiom, allow a client to purchase vast amounts of their consumers’ personal information. See Fed. Trade Comm’n, Data Brokers: A Call for Transparency and Accountability 7-9 (2014), https:// www.ftc.gov/system/files/documents/reports/data-brok
14 Some corporations base product offerings on predictive modeling. The popular television show House of Cards was created in part because Netflix—its producer—realized that there was a large cross section of viewers who enjoyed works directed by David Fincher, House of Cards’ Executive Director, and Kevin Spacey, the show’s lead actor. See David Carr, Giving Viewers What They Want, N.Y. Times (2013), http:// www.nytimes.com/ 2013/02/25/business/media/for-house-of-cardsusing-big-data-to-gu arantee-its-popularity.html.

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ers-call-transparency-accountability-report-federal-tra de-commission-may-2014/140527databrokerreport.pdf; Neil M. Richards & Jonathan H. King, Big Data Ethics, 49 Wake Forest L. Rev. 393, 404-05 (2014). Data brokers aggregate information about individuals from public sources and then use analytical techniques to discern patterns in consumer behavior. See Fed. Trade Comm’n, supra, at 3; Richards & King, supra, at 404-05. These public sources can include traditional offline records such as criminal records, corporate filings, credit agency reports and the like, but they can also include nontraditional avenues of information. See Fed. Trade Comm’n, supra, at 11-15; Richards & King, supra, at 404 (“To obtain their information, data brokers search through government records, purchase histories, social media posts, and hundreds of other available sources.”). For example, firms are now able to gather information from consumers not only from standard online sources such as “email, video, images, clickstream[s], logs, search queries,” but also from “electric grids, [GPS], roads and bridges” and even from “homes, clothing, and mobile phones.” See Tene & Polonetsky, Big Data for All, supra, at 240.
Second, in addition to having greater access to raw data, new data analysis techniques allow businesses or other research entities to discover new trends and correlations. In particular, a crucial and relatively new analytical method is the use of “machine learning” algorithms. “Machine learning” refers to the ability of a computer to learn from a data set without relying only on a set of pre-existing rules. See Cary Coglianese & David Lehr, Regulating by Robot: Administrative Decision Making in the Machine-Learning Era, 105 Geo. L.J. 1147, 1156-57 (2017). Although machine learning was a term coined in the early 1960s, it has

22
only recently become widely applied to analyze large-scale data sets due to the advances in modern computer power and storage efficiency. See id. at 1149-50, 1166. Machine learning algorithms are able to leverage large amounts of data and numerous variables to make inferences about the behavior of individuals. See id. at 1156-57. When using traditional statistical techniques, scientific researchers or analysts make predictions by designing models based on a specific and limited set of explanatory (or independent) variables and outcome (or dependent) variables. See id. By contrast, machine learning algorithms are able to determine which variables are relevant for predictive purposes, and can make predictions using many more characteristics of individuals than would be possible with traditional statistical methods. See id.
In addition to outperforming traditional methods in predictive accuracy and efficiency, modern machine learning algorithms are particularly suited for analyzing complex data sets. Because they are not reliant on having rigid pre-defined assumptions to forecast a model, machine learning algorithms can be applied to complex data sets to draw conclusions where previous techniques (e.g., relying on human intuition and simpler regression techniques) fall short. See id. at 1158-59. For this reason, companies have relied on machine learning algorithms for core business functions. Many of the features that online shopping and entertainment companies use to “suggest” new products to consumers are based on predictive models created by machine learning algorithms. See id. at 1149, 1160. Machine learning has also been used for other complicated tasks, such as automatically sorting mail by predicting the zip codes

23
written on envelopes or preventing self-driving cars from crashing. Id. at 1160, 1162.
B. The Same Tools Employed in Business and Science Will Be Deployed to Enable Optimal Gerrymandering Schemes That Also Comply with Traditional Redistricting Principles
Advances in the data sciences will not be confined to commerce and science. Armed with the newest wave of analytical tools, partisan mapmakers will be able to make maps that are more biased and more durable than historical mapmakers—all while satisfying historical redistricting principles.
1. Political Parties Will Leverage the Same Developments in Data Analytics That Have Benefitted Commercial and Scientific Enterprises
Like their corporate counterparts, political parties are interested in leveraging advancements in data analytics. It is unsurprising, then, that the same trends behind new data analytical techniques found in business and science—(1) new access to voluminous public information and (2) advanced analytical techniques such as machine learning— are also being deployed to analyze voter behavior. This is made possible by massive increases in computing power and data storage capacity, which have expanded by orders of magnitude the scope of information available and the technological capacity to analyze that information. See Tene & Polonetsky, Big Data for All, supra, at 239.
First, political data vendors are growing increasingly sophisticated in their ability to collect public voter information and create augmented voter

24
files. While it is already common practice for a party or a campaign to aggregate large amounts of voter information, augmented voter files differ from older compilations of data because they are supplemented with nuanced predictions about individual voter behavior and political preferences. See supra Section I.A.2; see also Christopher S. Elmendorf, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders 43 (Feb. 22, 2017), http://www.ssrn. com/abstract=2916294. These augmented files have only recently emerged in part because large-scale, public voter information was not available until the mid-2000s. Neither major political party had completed its first rudimentary voter databases until 2002, and states had not completed their own voter databases until mid-2008. See Hersh, supra, at 67 (noting that Republicans completed their first voter database in 2002, and Democrats in 2004). Political parties have thus only recently been able to analyze information from these compilations.
In future redistricting cycles, augmented voter files will become powerful mapmaking tools because they will allow mapmakers to predict voting patterns at an individualized level. For example, as discussed supra Section I.A.2, variables from detailed public records and proprietary client data can now be used to determine whether individual independent voters previously classified as neutral should instead be classified as leaning toward one party. See id. at 71-72. An augmented voter file may also allow mapmakers to predict information that is not recorded publicly. For example, private vendors can predict a voter’s race with reasonable accuracy by using the voter’s name and the general racial composition of his or her neighborhood. Id. at 127. Vendors are able to

25
draw similar connections across a number of demographic variables. See id. at 127, 169-75. Such accurate, individualized data at the fingertips of mapmakers will only serve to enhance mapmakers’ current abilities to create district maps with extreme partisan bias.
Second, in addition to having access to a greater breadth of information, political vendors are able to deploy data analysis techniques like machine learning, which will allow them to recognize previously undiscovered individual voting patterns. See supra Section II.A. In past campaigns and redistricting efforts, a political party may not have used anything more than basic regression techniques to predict voter behavior. See Nickerson & Rogers, supra, at 59. Basic regression techniques can handle a few variables, but they often struggle when confronted with complicated relationships involving a large number of variables. See id. at 59-60. In the context of voter behavior, relationships between variables are often nonlinear and context-dependent. Id. at 59-61. Any simple regression analysis must account for demographic nuances that affect when certain metrics are useful and when they are not. Id. For example, older voters tend to turn out at a higher rate than younger ones, but this relationship peaks between ages 60 and 70, and for voters older than 70, the turnout gap between them and younger voters begins to narrow. Id. at 61. Accordingly, because of nuances like this, past predictive models of individual voter behavior were less accurate than models that are now available to mapmakers. See id. at 59-61; see also Coglianese & Lehr, supra, at 1158-59 (noting that machine learning algorithms “outperform standard procedures in terms of predictive accuracy and statistical efficiency”).

26
Modern machine learning algorithms, however, do not suffer from these drawbacks. Just as they have altered how businesses can extract the most useful meaning from complicated data sets, machine learning algorithms will be more efficient at modeling political data. See Nickerson & Rogers, supra, at 6061; see also Coglianese & Lehr, supra, at 1158-59. Machine learning algorithms will be better able to process nonlinear nuances within a voting model, such as the above-mentioned relationship between voting and age, and are able to do so with less reliance on the skill of any particular analyst. See Nickerson & Rogers, supra, at 59-61. Moreover, they will be more cost effective to deploy, as they do not need the same intensive customization that traditional regression analysis requires.
2. “Matched-Slice” Gerrymandering Schemes Designed to Maximize Partisan Bias Will Become Possible in the Near Future
Due to augmented voter files and analytical techniques now available to mapmakers, it may soon be possible for mapmakers to prepare maps that are far more biased and durable than historical gerrymanders—including those drawn during the 2010 redistricting cycle. There is already a body of scholarly literature explaining “matched-slice” gerrymanders—a new theoretical technique for crafting gerrymanders in order to maximize partisan bias. See, e.g., John N. Friedman & Richard T. Holden, Optimal Gerrymandering: Sometimes Pack, but Never Crack, 98 Am. Econ. Rev. 113, 134-35 (2008). Historically, matched slicing was not possible because it relies on accurate, individualized knowledge of voter behavior. Elmendorf, supra, at 43-44.

27
In a matched-slice gerrymander, a district is divided optimally from the mapmakers’ perspective if each geographic subdivision within the district contains matched-slice representations, i.e., highly partisan Republican voters are paired with highly partisan Democrat voters, center-right Republicans are paired with center-left Democrats, etc. Id. at 43. Although somewhat counter-intuitive, matched slicing strategies are optimal because they neutralize a party’s most reliable voters. For example, if a group of strong Republicans resides in one particular area, a gerrymander could dilute their power by drawing a map such that the strong Republican base is split up, with each “slice” of strong Republicans being matched with a slightly larger, and equally fervent group of strong Democrats. See Friedman & Holden, supra, at 113, 135. Over time, this “matched slice” strategy will produce optimal partisan results because it most efficiently distributes a party’s base of partisan voters. See id.; see also Adam B. Cox & Richard T. Holden, Reconsidering Racial and Partisan Gerrymandering, 78 U. Chi. L. Rev. 553, 567 (2011).
Historically, partisan redistricting efforts lacked sufficient individualized voter data and the ability to meaningfully process that data into predictive data in order to use matched-slice strategies. See Elmendorf, supra, at 43-44. Instead, mapmakers relied on broader, geographic-based proxies, such as looking at ward-level data of voter preferences. See id. at 44-45.15
15 For example, a district may contain a simple 52% majority of voters siding with the party in control of the mapmaking process, but that majority may be composed of a mix of strong partisan voters and mere moderate voters. This distribution is far less reliable than an “ideal” district containing a 52% majority of only strong partisan voters because the former, “mixed” district is subject to swing voters. See Cox & Holden, supra, at 567.

28
With the proliferation of individualized voter data, future mapmakers using the matched-slice technique will be able to maximize partisan bias and durability.
3. Future Redistricting Efforts Could Result in Maps That Are Even More Durably Biased While Complying with Traditional Mapmaking Principles
Future gerrymanders could be designed to maximize partisan bias and durability while comporting with traditional redistricting principles.16 Consequently, relying on the bizarre shapes of districts to identify partisan gerrymanders would result in a test that is both under- and over-inclusive.17 With advances such as the augmented voter file and machine learning algorithms, aided by new techniques such as the matched-slice gerrymander, mapmakers can form districts that might appear to comport with
Historically, it was not possible to reliably ensure this distribution due to the difficulty in obtaining sufficiently robust and precise data on individual voters. See Elmendorf, supra, at 43-44. Instead, to combat this distribution, historical mapmakers would have to either accept the risk of swing voters or inefficiently move more partisan voters into districts to ensure that the district votes for the mapmaker’s party. See Cox & Holden, supra, at 565-67.
16 Many states have constitutional provisions setting forth redistricting criteria. These criteria may vary widely from state to state and may include, among other things, compactness, contiguity, keeping communities of interest together, and respecting political subdivisions. See Brennan Ctr. for Justice, A 50 State Guide to Redistricting (2011), http://www.brenn ancenter.org/publication/50-state-guide-redistricting/.
17 Contra Br. of NRCC 19-28; Br. of Amicus Curiae Republican Nat’l Comm. in Supp. of Appellants 2-4, 13-22; Br. of Wis. Inst. for Law & Liberty in Supp. of Appellants 22-28.

29
historical districting principles when they are in fact designed to entrench and expand partisan bias.
In future redistricting cycles, mapmakers will be able to leverage recently developed techniques for simulating hypothetical maps in order to achieve particular goals.18 Future mapmakers, who will have access to unprecedented computing power, will be able to prepare thousands of simulated maps and identify the district configurations that can maximize partisan bias and durability while simultaneously comporting with traditional districting principles.
Furthermore, as a result of these advances, practical constraints on gerrymanders that previously may have limited partisan bias will no longer play a significant role. In redistricting cycles prior to the 2010 cycle, gerrymanders had a self-limiting quality, because the more seats the gerrymandering party stacked in their favor, the more vulnerable that party would become in the event of a tide against that party. In other words, seat maximization had a trade-off with risk. See Bernard Grofman & Thomas L. Brunell, The Art of the Dummymander: The Impact of Recent Redistrictings on the Partisan Makeup of Southern House Seats, in Redistricting in the New Millennium 183, 183-84 (Peter Galderisi ed., 2005); see also Davis v. Bandemer, 478 U.S. 109, 152 (1986) (O’Connor, J., concurring). Contemporary and future gerrymanders are not likely to be self-limiting in the same way as historical gerrymanders. See, e.g., Br. of Bernard Grofman and Ronald Keith Gaddie as Amici Curiae in
18 While most academic literature has focused on such simulations as tools to assess partisan bias, see infra Section III.B, these same technological tools could easily be used by mapmakers.

30
Supp. of Neither Party 17 n.5 (explaining that “dummymanders” have become uncommon in part because “the newest, computer-driven redistricting now allows map drawers to make very precise refinements to district lines down to the census-block level. With this sophisticated new technology, map drawers can fashion maps that eliminate meaningful competition for most districts. . . . [G]errymandered victory margins are no longer so thin that they risk disappearing”). The ability to draw biased and durable gerrymanders with more precision, combined with the decline in the number of swing voters, vitiates the traditional trade-off: No plausible tide will overcome the imbalance in districts.
III. SOCIAL SCIENCE PROVIDES OBJECTIVE MEASURES AND RELIABLE TOOLS THAT COURTS COULD USE TO EVALUATE THE PARTISAN BIAS IN MAPS
Even as software and social science techniques equip mapmakers to create maps with extreme and durable partisan bias, these same types of techniques could also help provide a workable judicial solution to the problem of partisan gerrymandering. In the intervening years since the Court last visited these issues in Vieth v. Jubelirer, 541 U.S. 267 (2004) and LULAC v. Perry, 548 U.S. 399 (2006), political scientists have developed a wealth of modern social science techniques that can serve as objective, verifiable, and reliable tools to discern unconstitutional partisan gerrymanders.
In this case, the Court need not endorse one of the many social science measures that are available. Rather, as the Court has done in other redistricting contexts, the Court may set a doctrinal standard that

31
will permit the lower courts to field the best, most current social science evidence to help identify constitutional violations.
For example, in Thornburg v. Gingles, the Court granted lower courts the flexibility to develop the doctrine of impermissible race-based redistricting. See 478 U.S. 30, 58 (1986). In Gingles, the Court determined that an inquiry into racially polarized voting would be an essential component of any vote dilution case in the context of racially motivated redistricting; however, the Court declined to embrace any specific test for the existence of legally significant racially polarized voting, choosing instead to set out “general principles” in order to “provide courts with substantial guidance in determining whether evidence” of racially polarized voting “rises to the level of legal significance under” the Voting Rights Act. Id.
Here, too, the Court could easily set out general principles to guide lower courts in assessing constitutional violations in the context of partisan gerrymandering. See, e.g., Br. of Grofman & Gaddie 10-22 (“There is consensus among social scientists that three discrete concepts are critical to detecting and measuring the extent of an unconstitutional partisan gerrymander: (1) partisan asymmetry, (2) lack of responsiveness of electoral outcomes to changes in voter decisions, and (3) causation.”). With the assistance of expert opinions, lower courts could consider the many analytical and statistical tools that are at their disposal and that could help identify partisan bias in maps. Using those tools in a manner consistent with any principles laid out by the Court, lower courts could distinguish unconstitutional partisan gerrymanders from constitutional maps.

32
Some of these tools involve simple math; others leverage statistics, enhanced data analysis techniques, and/or cutting-edge computing power. What they all have in common, however, is that none of these robust social science techniques had been developed when the Court last considered this question in Vieth and LULAC. In addition, these techniques are far superior to historical approaches that have been relied upon to identify maps that were drawn with unconstitutional intent. For example, the Court has recognized that neither a failure to adhere to traditional districting principles nor the presence of irregular lines is a consistent indicator of plans that were drawn with unconstitutional intent. See Bethune-Hill v. Va. Bd. of Elections, 137 S. Ct. 788, 799 (2017) (“[A] State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”); see also Cooper v. Harris, 137 S. Ct. 1455, 1473-74 (2017). This makes it all the more important for the Court to create a doctrinal space where lower courts could consider advanced social science to provide objective, verifiable, and reliable measures of partisan bias in maps.
A. Contemporary Social Science Provides a Range of Methods to Detect Partisan Bias
The efficiency gap is one metric that could be utilized by courts to detect partisan bias. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 899-900 (2015). A number of courts (including the court below) have already utilized

33
the efficiency gap in order to assess partisan gerrymandering claims. See J.S. App. 159a-176a; see also Common Cause v. Rucho, No. 1:16-CV-1026, 2017 WL 876307, at *3, *11 (M.D.N.C. Mar. 3, 2017).
Other social science tests that can be used include, but are not limited to, the excess seats test (which identifies when the outcome after redistricting was disproportionally in favor of the redistricting party when compared to a simulated seats/votes curve), the lopsided outcomes test (which measures the difference between the share of Democratic votes in the districts that Democrats win and the share of Republican votes in the districts that Republicans win), and the mean-median difference (which identifies when a party’s median vote share is substantially below its average vote share across districts in a state). See, e.g., Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263, 1306-07 (2016); Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312, 328-29 (2015).

B. Computer

Simulations

Provide

Additional Tools to Assess Partisan Bias

Computer simulations can also be used to help identify highly biased maps. Computer simulations can randomly generate a large number of alternative redistricting plans that adhere to traditional redistricting criteria; if the actual plan is more extreme than all or almost all of the plans the computer has drawn, based on one or more social science methods discussed supra Section III.A, lower courts can conclude that the traditional criteria do not explain the plan. See Jowei Chen & David Cottrell, Evaluating Partisan Gains from Congressional

34
Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the U.S. House, 44 Electoral Stud. 329 (2016); Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm & Evolutionary Computation 78 (2016); Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016); Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015); Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L.J. (forthcoming 2017).
A number of courts have relied on computer simulations to assess partisan bias in maps. See Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 344-45 (4th Cir. 2016); City of Greensboro v. Guilford Cty. Bd. of Elections, No. 1:15-CV-559, 2017 WL 1229736, at *6 (M.D.N.C. Apr. 3, 2017).
Just as mapmakers now have access to data analysis tools, statistics, and software to prepare biased and durable gerrymanders, courts now have access to a wealth of social science and technological tools to assist in classifying and identifying gerrymanders. These tools are new—they did not exist when the Court last considered these questions in Vieth and LULAC. These tools have been vetted by scholars, political scientists, and, in some cases, by courts, and are generally regarded as objective, verifiable, and reliable mechanisms to assess partisan bias. See Br. of Grofman & Gaddie 26-32. If the Court

35 sets a doctrinal standard for partisan gerrymandering claims, there will be ample opportunity for lower courts to test the many viable tools that are now available and select the best social science evidence to identify constitutional violations.
CONCLUSION
For the foregoing reasons, amici respectfully urge the Court to affirm the judgment of the District Court.
Respectfully submitted,

September 5, 2017

ROBERT A. ATKINS Counsel of Record
NICHOLAS GROOMBRIDGE ANDREW J. EHRLICH PIETRO SIGNORACCI MICHAEL PERNICK PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 ratkins@paulweiss.com
Attorneys for Amici Curiae

APPENDIX

1a APPENDIX1
Professor Andrew Beveridge is a professor of sociology at Queens College and the Graduate Center at CUNY and CEO of Social Explorer.
Professor Barry Burden is a professor of political science, Director of the Elections Research Center, and the Lyons Family Chair in Electoral Politics at the University of Wisconsin-Madison.
Professor Robert S. Erikson is a professor of political science at Columbia University.
Professor Bernard L. Fraga is an assistant professor of political science at Indiana University Bloomington.
Professor Donald P. Green is a professor of political science at Columbia University.
Professor Justin Grimmer is an associate professor of political science at the University of Chicago.
Professor Lisa Handley is a Visiting Research Academic at Oxford Brookes University.
Professor John A. Henderson is an assistant professor of political science at Yale University.
Professor Eitan D. Hersh is an associate professor of political science at Tufts University.
Professor David C. Kimball is a professor of political science at the University of Missouri-St. Louis.
Professor Marc Meredith is an associate professor of political science at the University of Pennsylvania.
1 Where provided, institutional affiliations are for informational purposes only and are not intended to indicate endorsement by the institution of the views of the individual amicus.

2a
Professor Michael C. Munger a professor of political science and public policy at Duke University.
Professor Clayton M. Nall is an assistant professor of political science at Stanford University.
Professor Douglas Rivers is a senior fellow at the Hoover Institution and a professor of political science at Stanford University.
Professor David Rohde is a professor of political science and Director of the Political Institutions and Public Choice Program at Duke University.
Professor Brian F. Schaffner is a professor of political science at the University of Massachusetts Amherst.
Professor Eric Schickler is a professor of political science at the University of California, Berkeley.
Professor Ariel White is an assistant professor of political science at Massachusetts Institute of Technology.

 
 No. 16-1161
IN THE
BEVERLY R. GILL, et al., Appellants,
v.
WILLIAM WHITFORD, et al., Appellees.
On Appeal from the United States District Court of the Western District of Wisconsin
BRIEF OF PROFESSOR D. THEODORE RAVE AS AMICUS CURIAE IN SUPPORT OF APPELLEES
Donald Theodore Rave III Counsel of Record UNIVERSITY OF HOUSTON LAW CENTER 2402 Calhoun Road Room 142 BLB Houston, Texas 77204 (713) 743-2499 teddy.rave@gmail.com

TABLE OF CONTENTS
TABLE OF CONTENTS ...............................................i
TABLE OF AUTHORITIES........................................ ii
INTEREST OF AMICUS CURIAE .............................1
SUMMARY OF ARGUMENT......................................1
ARGUMENT ................................................................. 3
I. This Court Should Be Skeptical Of Districts Drawn By Incumbents And Should Subject Them To Searching Review. ..................................3
A. Legislators Are Fiduciaries Who Should Not Use Government Power To Entrench Themselves. .....................................................4
B. Conflicted Fiduciaries—Not Challengers —Bear The Burden Of Showing That Their Actions Are Fair. ...................................6
C. Appellants Have Not Shown That The Districts Here Are Fair. ..................................9
II. Recognizing The Justiciability Of Political Gerrymandering Claims And Affirming Here Will Not Require Courts To Review All Redistricting Decisions. .........................................9
A. Courts Can Create Incentives For Legislatures To Adopt Independent Redistricting Processes By Following Corporate Law’s Example.............................10
B. Courts Can Defer To Districts Drawn Through Independent Processes. .................13
CONCLUSION ...........................................................16

ii
TABLE OF AUTHORITIES
Cases Ariz. Minority Coal. for Fair Redistricting v.
Ariz. Indep. Redistricting Comm'n, 208 P.3d 676 (Ariz. 2009) .......................................................14 Baker v. Carr, 369 U.S. 186 (1962)..............................7 Benihana of Tokyo Inc. v. Benihana Inc., 906 A.2d 114 (Del. 2006)................................................11 Cox v. Larios, 542 U.S. 947 (2004).............................15 Harris v. Ariz. Indep. Redistricting Comm'n, 136 S. Ct. 1301 (2016)....................................................14 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ..........6 Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969)..........................................................7 Lewis v. S. L. & E., Inc., 629 F.2d 764 (2d Cir. 1980) ..........................................................................7 Miller v. Johnson, 515 U.S. 900 (1995) .......................8 United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ..............................................................4, 7 Vandermost v. Bowen, 269 P.3d 446 (Cal. 2012) ......14 Veith v. Jubelirer, 541 U.S. 267 (2004) .................2, 10 Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983) ........................................................................10 Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) ................................................................8, 9, 12
Constitutional Provisions Md. Const. of 1776, art. IV...........................................5 Pa. Const. of 1776, art. IV ............................................5 Va. Const. of 1776, § 2 ..................................................5

iii
Statutes Del. Code Ann. tit 8, § 144(a)(1)–(2) ..........................11
Other Authorities Bruce E. Cain, Redistricting Commissions: A
Better Political Buffer?, 121 Yale L.J. 1808, 1842-43 (2012)...................................................13, 15 Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. Rev. 117, 123–25 (2006) ............................................................4 The Federalist No. 46 ...................................................5 Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 64143 (2002) ..................................................................12 Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (2017) ...................................................5 Ethan J. Leib, David L. Ponet & Michael Serota, A Fiduciary Theory of Judging, 101 Calif. L. Rev. 699, 708–09 (2013)............................................4 John Locke, The Second Treatise of Civil Government § 149 (J.W. Gough ed. 1946) (1690) .........................................................................4 Robert G. Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239, 245 n.18 (2007) .........................................................................5 Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077 (2004) ..............5

iv
Robert G. Natelson, The Government as Fiduciary: A Practical Demonstration From the Reign of Trajan, 35 U. Rich. L. Rev. 191, 211–32 (2001) ............................................................4
D. Theodore Rave, Institutional Competence in Fiduciary Government, in Research Handbook on Fiduciary Law 5-6 (Andrew S. Gold & D. Gordon Smith eds. forthcoming 2017), available at https://ssrn.com/abstract=2811302 ..............7, 10, 13
D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671, 713-19 (2013) ............ passim

1
INTEREST OF AMICUS CURIAE
Amicus curiae D. Theodore Rave is an Assistant Professor of Law at the University of Houston Law Center. He is an expert in the areas of election law and public fiduciary law. Amicus has an interest in the proper interpretation of the constitutional limitations on legislative redistricting and their effects on governance. Amicus believes that the U.S. Constitution prohibits incumbent state legislators from manipulating district lines to entrench themselves in power and that this Court is the only institution that can provide a remedy.1
SUMMARY OF ARGUMENT
As this Court, the Framers, and foundational political theory have recognized, elected officials, such as legislators, are fiduciaries who have a duty to loyally serve the interests of the people they represent, not their own interests. This commitment to fiduciary government is embedded deep in the constitutional structure. When fiduciaries act in the face of a conflict of interest—like by drawing the
1 All parties have submitted letters granting blanket consent to amicus curiae briefs. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. The law school employing amicus provides financial support for activities related to faculty members’ research and scholarship, which helped defray the costs in preparing this brief. Otherwise, no person or entity has made a monetary contribution intended to fund the preparation or submission of this brief.

2
electoral districts in which they will run for reelection—they bear the burden of showing that their actions are fair and in the best interest of those they represent.

Appellants did not meet that burden here. As the

district court found, Appellants acted with the intent

to entrench themselves, benefit their political allies,

and frustrate potential challengers when they drew

electoral districts for the Wisconsin legislature. And

the maps they drew had that effect. As Appellees

and their amici have shown, the Wisconsin

legislature

acted

unconstitutionally

in

gerrymandering its own districts.

In Vieth v. Jubelirer, 541 U.S. 267 (2004), several members of this Court raised legitimate concerns about whether the federal courts are well suited to police such an inherently political process. But reaffirming the justiciability of political gerrymandering claims and affirming the district court in this case will not inevitably involve the federal courts in supervising every redistricting decision. The purpose of this brief is to explain how the Court can create incentives for state legislatures to adopt independent redistricting processes to which the federal courts can safely defer.

Courts are no better at reviewing business judgments than political ones. But when faced with the analogous problem of self-dealing directors in corporate law, courts do not just throw up their hands and declare the whole matter nonjusticiable. Instead, corporate law creates a two-track system of judicial review. Decisions made by conflicted

3
fiduciaries are subjected to exacting scrutiny, but corporate law creates a safe harbor for decisions made or ratified through independent processes. When conflicted directors run their decisions through an independent process, the taint of self-dealing is cleansed, and reviewing courts can safely defer to the substantive outcome so long as they ensure that the process was independent.
Finding an unconstitutional political gerrymander in this case will not plunge the federal courts into the political thicket if this Court creates a safe harbor for redistricting decisions made through independent processes, like the independent redistricting commissions in Arizona and California. Instead, the threat of litigation and skeptical judicial review of districts drawn by conflicted state legislatures will create a powerful incentive for those legislatures to adopt independent processes to engage in the complex and delicate task of redistricting without the overwhelming temptation to manipulate district lines to their own advantage. Courts can safely defer to the substantive redistricting decisions of these institutions and confine their review to ensuring that the process was fair and independent— a task for which courts are well suited.
ARGUMENT
I. This Court Should Be Skeptical Of Districts Drawn By Incumbents And Should Subject Them To Searching Review.
Appellants’ amici argue that a redistricting plan is, like any ordinary act of a state legislature, entitled

4
to a presumption of constitutionality and deferential rational basis review. See State of Texas et al. Amici Br. 6–7, 9–13. But this is exactly backwards. No presumption of constitutionality should apply. A redistricting plan is not like ordinary legislation because the incumbent legislators who enact it face a glaring conflict of interest: they will run for reelection in the very districts they draw and will face an inevitable temptation to manipulate district lines to their advantage. As this Court has long recognized, more “exacting judicial scrutiny” is required when legislation “restricts those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation.” United States v. Carolene Prods. Co., 304 U.S. 144, 152–53 n.4 (1938).
A. Legislators Are Fiduciaries Who Should Not Use Government Power To Entrench Themselves.
This Court, the Framers of the Constitution, and longstanding political theory all recognize that elected officials, such as legislators, are fiduciaries for the people they represent. This idea of “political trusteeship” has ancient roots, dating back to Plato and Cicero, and was well accepted in England by the time of John Locke, who described the legislative power as “only a fiduciary power to act for certain ends.” John Locke, The Second Treatise of Civil Government § 149 (J.W. Gough ed. 1946) (1690).2
2 For accounts of how deeply the fiduciary model of government runs throughout history, see Ethan J. Leib, David L. Ponet & Michael Serota, A Fiduciary Theory of Judging, 101

5
The Framers thought about government in fiduciary terms, and their intent to impose fiduciary obligations on public officials permeates the constitutional structure. See generally Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (2017); Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077 (2004). Indeed, the fiduciary theory of government was nearly universally accepted by proponents and opponents of the Constitution alike during the ratification debates.3 Natelson, supra, at 1086. And this Court
Calif. L. Rev. 699, 708–09 (2013); Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. Rev. 117, 123– 25 (2006); Robert G. Natelson, The Government as Fiduciary: A Practical Demonstration From the Reign of Trajan, 35 U. Rich. L. Rev. 191, 211–32 (2001).
3 Noah Webster was the lone dissenter from the idea that public officials acted in a fiduciary capacity. See Robert G. Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239, 245 n.18 (2007). As James Madison explained in The Federalist No. 46, “The federal and State governments are in fact but different agents and trustees of the people.” Similarly, several state constitutions at the time of the Framing explicitly recognized that the delegation of power from the people to government officials imposed fiduciary obligations on those officials. E.g., Pa. Const. of 1776, art. IV (“[A]ll power [is] . . . derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.”); Va. Const. of 1776, § 2 (“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”); Md. Const. of 1776, art. IV (“That all persons invested with the legislative or

6
recognized in Hollingsworth v. Perry, 133 S. Ct. 2652, 2666-67 (2013), that elected state officials are “agents of the people” and owe them “a fiduciary obligation.”
Like private-law fiduciaries, legislators bear a duty of loyalty to those they represent. Thus they cannot put their own interests ahead of the interests of the people they represent. That is, after all, what it means to be a fiduciary. Legislators breach their duty of loyalty when they manipulate the machinery of democracy to entrench themselves in power and frustrate potential challengers. See D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671, 713–19 (2013).
B. Conflicted Fiduciaries—Not Challengers—Bear The Burden Of Showing That Their Actions Are Fair.
Although one of the hallmarks of a fiduciary relationship is the discretion placed in the fiduciary’s hands, the law does not trust fiduciaries to exercise that discretion unsupervised when their own interests are at stake. Thus, as a general rule, fiduciaries must avoid conflicts of interest where possible. So long as they do, courts will not ordinarily second-guess the discretionary judgments of the fiduciary. See, e.g., D. Theodore Rave, Institutional Competence in Fiduciary Government, in Research Handbook on Fiduciary Law 5-6 (Andrew
executive powers of government are the trustees of the public . . . .”); see also Natelson, Public Trust, supra at 1134–36.

7
S. Gold & D. Gordon Smith eds. forthcoming 2017), available at https://ssrn.com/abstract=2811302.
But when a fiduciary acts in the face of a conflict of interest, ordinarily deferential courts apply a much more demanding level of scrutiny to the fiduciary’s actions. See id. at 7. And the burden to show that the self-dealing action was, in fact, fair and in the best interests of the people the fiduciary represents falls squarely on the fiduciary, not the challengers. See, e.g., Lewis v. S. L. & E., Inc., 629 F.2d 764, 768– 69 (2d Cir. 1980). In other words, when a fiduciary’s own interests are at stake, a reviewing court cannot start with the presumption that the fiduciary’s actions are legitimate.
Although it has not used fiduciary language, this Court has long recognized that the ordinary presumption that state legislation is constitutional does not apply to legislation that manipulates the very process by which legislators are elected. See Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 628 (1969) (“The presumption of constitutionality . . . [is] based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.”). This is because we cannot trust conflicted incumbent legislators when their own interests are at stake, nor can we count on the political process to correct their self-dealing. See Baker v. Carr, 369 U.S. 186, 258–59 (1962) (Clark, J., concurring) (finding judicial intervention necessary where an “informed, civically

8 militant electorate” could not force incumbents who benefitted from malapportionment to draw new districts). “More exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” is thus required. Carolene Prods., 304 U.S. at 152–53 n.4.
Appellants’ amici accuse the district court of improperly placing the burden of justifying the districts drawn on the incumbent legislators. State of Texas et al. Amici Br. 14. That is not what the district court understood itself to be doing. The district court held that, assuming the burden was on the plaintiffs, they had satisfied it. Whitford v. Gill, 218 F. Supp. 3d 837, 911 (W.D. Wis. 2016). But the court would have been entirely justified in placing the burden on the fiduciary legislators. Their conflict of interest in drawing their own districts should render any presumption of constitutionality inappropriate. Indeed, it is a reason for the Court to apply heightened scrutiny.4
4 Miller v. Johnson, 515 U.S. 900 (1995), is not to the contrary. There the Court held that the “presumption of good faith that must be accorded to legislative enactments,” evaporated and strict scrutiny applied once the plaintiffs had shown that racial considerations predominated. Id. at 916–20. Here, Appellees have easily shown that partisan considerations predominated, which comes as no surprise given the conflict of interest the incumbent legislators faced.

9
C. Appellants Have Not Shown That The Districts Here Are Fair.
Appellants here have not fulfilled their fiduciary obligation to put the interests of those they represent ahead of their own. In drawing the very districts in which they would run, the incumbent Wisconsin legislators who controlled the process faced a glaring conflict of interest. They made no effort to avoid the conflict or adopt some process that might cleanse the taint of their self-dealing. Instead they hired consultants to help them maximize their own political advantage. Id. at 847, 890–96.
As the district court found, Appellants acted with the intent to entrench themselves in power, benefit their political allies, and frustrate potential challengers. Id. at 843, 898. And the districts they drew had that effect. Id. at 898, 910. This is more than enough to make out a constitutional violation, as Appellees and their amici have shown.
II. Recognizing The Justiciability Of Political Gerrymandering Claims And Affirming Here Will Not Require Courts To Review All Redistricting Decisions.
Appellants and their amici argue that recognizing the justiciability of political gerrymandering claims and affirming the district court here will require massive intervention by the federal courts in practically all state redistricting. See, e.g., Appellant Br. at 2–3; State of Texas et al. Amici Br. 14–15; N.Y. State Senate Amicus Br. 19; Wisconsin Institute for Law & Liberty Amicus Br. 14. This need not be the case. And it is not a reason to

10
declare political gerrymandering a nonjusticiable political question. The Court can create incentives for state legislatures to adopt independent processes for redistricting decisions. And reviewing courts can defer to the redistricting decisions of sufficiently independent bodies, keeping self-dealing incumbents from manipulating district lines and courts from needing to second-guess every redistricting decision.
A. Courts Can Create Incentives For Legislatures To Adopt Independent Redistricting Processes By Following Corporate Law’s Example.
In Vieth v. Jubelirer, 541 U.S. 267 (2004), several members of this Court raised legitimate questions about the federal courts’ institutional competence to review redistricting decisions. There is no doubt that redistricting involves inherently political judgments. But the courts’ apprehension about their competence to handle political issues is not a reason to declare political gerrymandering claims nonjusticiable and give a green light to incumbent manipulation. Instead the Court can look to the strategies that courts have developed in other areas of law to get around their questionable competence to police fiduciary self-dealing. See Rave, Institutional Competence, supra at 5.
The same problem arises in corporate law. Courts are no better suited to make business judgments than political ones, but they still manage to police self-dealing by corporate directors. Corporate law gets around courts’ limited competence with business matters by adopting a two-track

11
system of judicial review. When shareholders challenge a conflicted director’s self-dealing transaction, the reviewing court will closely scrutinize the transaction for “entire fairness,” inquiring into the substance of the deal and the fairness of the bargaining process. See, e.g., Weinberger v. UOP, Inc., 457 A.2d 701, 710–11 (Del. 1983). Supervision by a court of limited competence looks comparatively attractive when the alternative is leaving the decision in the hands of a conflicted fiduciary. But to take some pressure off the reviewing court, corporate law provides safe harbors that can cleanse the taint of self-dealing if the transaction is approved by an independent decisionmaker. Thus, if a majority of the disinterested directors or disinterested shareholders approve the interested-director transaction, the reviewing court will apply the much more deferential “business judgment rule” standard. See, e.g., Del. Code Ann. tit 8, § 144(a)(1)–(2); Benihana of Tokyo Inc. v. Benihana Inc., 906 A.2d 114, 120 (Del. 2006).
By adopting this two-track standard of review, corporate law channels corporate decisions about conflicted transactions into independent processes to which courts can safely defer. This allows reviewing courts to shift their focus from the substantive fairness of the outcome to the adequacy and independence of the process used to approve it—a role that courts are institutionally much better suited to play. Rave, Politicians as Fiduciaries, supra at 703–06.
The Court can make a similar move here. Redistricting decisions made by conflicted state

12
legislators should be subject to skeptical judicial review. See id. 725–28; Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 641–43 (2002). But by creating a safe harbor for redistricting decisions made through independent processes, the Court can provide a powerful incentive for state legislatures to create independent institutions to make redistricting decisions in the first instance. Rave, Politicians as Fiduciaries, supra at 723–24. The federal courts will thus not be forced to review the substantive political fairness of almost every redistricting decision as Appellants claim. Instead, the courts can defer to substantive political judgments of custom-designed independent redistricting institutions and focus their review on ensuring that these alternative linedrawers are not themselves conflicted or captured by conflicted legislators and that they are provided with sufficient information and resources to make intelligent and independent decisions on where to draw district lines. Id. 728–29.
The district court implicitly recognized a safe harbor for districts drawn by independent bodies in its discriminatory intent requirement. Whitford v. Gill, 218 F. Supp. 3d 837, 908 (W.D. Wisc. 2016) (“[I]f a claim of partisan gerrymandering is brought against a court- or commission-drawn district plan with a high [efficiency gap], it will stall when the plaintiffs attempt to make the necessary showing of discriminatory intent.”). This Court should make the safe harbor explicit.
There is no need, however, for the Court to specify at this time the precise form that independent

13
redistricting institutions must take to justify deference. States should be free to experiment with different models. The Court need only direct the lower courts to review these institutions to ensure that they are sufficiently independent from conflicted incumbents to cleanse the taint of self-dealing. Following the corporate law model thus keeps reviewing courts focused on process, not politics. Rave, Politicians as Fiduciaries, supra at 728–29.
B. Courts Can Defer To Districts Drawn Through Independent Processes.
This approach is workable in practice. Of course, not all alternative redistricting processes are created equal—a partisan redistricting commission handpicked by the incumbent legislators would do little to cleanse the taint of self-dealing—and courts will still have to play a role in policing these processes for capture by insiders. But the point is not to take the politics out of inherently political decisions. The point is simply to shift the locus of redistricting decisions away from the most conflicted agents—the incumbents who will run for reelection in those districts. Rave, Institutional Competence, supra at 14.
Successful independent redistricting commissions will likely need to build in roles for partisans on both sides of the aisle and create opportunities for various interest groups to offer input. See Bruce E. Cain, Redistricting Commissions: A Better Political Buffer?, 121 Yale L.J. 1808, 1841–43 (2012). But in order to cleanse the taint of self-dealing, they will need to provide a layer of insulation from conflicted

14
incumbents both in how the commissioners are selected and how the commissions operate. Partisans, lobbyists, interest groups, and other political intermediaries will inevitably struggle and bargain for influence and power in whatever alternative process is set up. But once the reviewing court has determined that the process is fair and independent, it can defer to the substantive outcome of these pluralist clashes and compromises. Rave, Politicians as Fiduciaries, supra at 733–35.
Independent redistricting commissions have been successful in some states, including Arizona and California, and reviewing courts have given the districts they produce great deference. See Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 208 P.3d 676, 685–89 (Ariz. 2009) (scrutinizing whether independent redistricting commission followed mandated procedures, but deferring to substantive outcome); Vandermost v. Bowen, 269 P.3d 446, 484 (Cal. 2012) (after rejecting a legal challenge against districts drawn by independent redistricting commission, holding that if a referendum to override the commission qualified for the ballot, the commission-drawn districts, which were the product of “an open, transparent and nonpartisan redistricting process,” would be used on an interim basis instead of district drawn by the legislature).
Indeed, this Court has, at least implicitly, recognized that independent redistricting commissions are entitled to more deference than conflicted legislatures. In Harris v. Arizona Independent Redistricting Commission, 136 S. Ct.

15
1301, 1305 (2016), the Court rejected a one-personone vote challenge to state legislative districts drawn by an independent redistricting commission. The Court deferred to the commission’s decision to deviate from perfect population equality, even though the district court had found that “partisanship played some role.” Id. at 1306. By contrast in Cox v. Larios, 542 U.S. 947 (2004), the Court showed far less deference when a conflicted legislature made similar deviations from perfect population equality for partisan reasons, and summarily affirmed the lower court’s judgment that the districts violated the Fourteenth Amendment. See also Cain, supra at 1842–43 (“The courts might consider a higher level of deference to redistricting institutions such as independent citizen commissions that are more likely to adopt reasonably imperfect plans.”).
When incumbent state legislators draw their own districts, as in this case, the federal courts should be inherently suspicious and apply searching review. But when redistricting decisions are made through independent processes, the taint of self-dealing is cleansed and courts should apply a more deferential standard of review as this Court did in Harris. This two-track system of judicial review is a workable model that creates incentives for state legislatures to adopt independent processes for redistricting to which courts can defer. It keeps conflicted legislators out of the business of manipulating district lines to their own advantage and courts out of the business of second-guessing political judgments.

16 CONCLUSION
This Court should affirm the decision below.
Respectfully submitted,
Donald Theodore Rave III Counsel of Record
UNIVERSITY OF HOUSTON LAW CENTER 2404 Calhoun Road Room 142 BLB Houston, Texas 77204
(713) 743-2499
teddy.rave@gmail.com

 
 No. 16-1161

IN THE

Supreme Court of the United States
___________

BEVERLY R. GILL, ET AL., v.

Appellants,

WILLIAM WHITFORD, ET AL., ___________

Appellees.

On Appeal from the United States District
Court for the Western District of Wisconsin ___________

BRIEF OF POLITICAL GEOGRAPHY
SCHOLARS AS AMICI CURIAE
IN SUPPORT OF APPELLEES ___________

RICHARD H. PILDES 40 Washington Sq.
South New York, NY 10012 (212) 998-6377
JEFFREY T. GREEN SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000

TACY F. FLINT * JASON G. MARSICO SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 tflint@sidley.com

Counsel for Amici Curiae

September 5, 2017

* Counsel of Record

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT ............................. 4

ARGUMENT ........................................................ 9

I. THE EFFECTS OF POLITICAL GEOGRAPHY CAN BE MEASURED......... 11

A. Districting Simulations Based On Traditional Redistricting Criteria ........... 11

B. Modifying Actual Districts To Measure Effects Of Slight Changes........................ 14

C. Statistical

Modeling:

The “Neighborhood” Approach ................ 15

II. THE PARTISAN ASYMMETRY IN WISCONSIN’S LEGISLATIVE MAP CANNOT BE EXPLAINED BY POLITICAL GEOGRAPHY............................................... 17

A. Reliable Analysis Confirms That Wisconsin’s Political Geography Did Not Cause Its Legislative Map’s Electoral Bias ........................................................... 17

B. Generalized Statements About Political Geography Cannot Explain The Wisconsin Map’s Electoral Bias .............. 21

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

(i)

CASES

ii TABLE OF AUTHORITIES

Page

Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016) ....................................... 3, 12, 13
Vieth v. Jubelirer, 541 U.S. 267 (2004) (Kennedy, J., concurring in the judgment) ............................................... passim
CONSTITUTION
Wis. Const. art. IV, §§ 4–5 ........................... 23
OTHER AUTHORITIES
Jonathan C. Mattingly & Christy Vaughn, Redistricting and the Will of the People (Oct. 29, 2014), https://arxiv.org/abs/ 1410.8796 .................................................. 14
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L.J. (forthcoming 2017), http://www.umich. edu/~jowei/Political_Geography_Wisconsi n_Redistricting.pdf.................................... 12, 19
Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239 (2013) ......................................................... 5
Maria Chikina, Wesley Pegden & Alan Frieze, An analysis of the Act 43 Wisconsin Assembly district map using the √ Test (Sept. 1, 2017), https://arxiv.org/abs/1708.09852 .............. 19

iii
TABLE OF AUTHORITIEScontinued Page
Maria Chikina, Wesley Pegden & Alan Frieze, Assessing significance in a Markov chain without mixing, 114 Proc. of the Nat’l Acad. of Sci. 2860 (2017) .................. 14, 15
Nicholas Eubank & Jonathan Rodden, Who is my Neighbor? The Spatial Efficiency of Partisanship (Aug. 23, 2017), https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3025082...................... 4, 16, 17, 20
Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351 (2016)........................................... 13

INTEREST OF AMICI CURIAE1
Amici are professors in several disciplines who study the effect of political geography on legislative district maps. Using statistical analyses and computer modeling techniques, amici have developed and honed methods for determining whether electoral bias in a State’s legislative map is the natural result of political geography—that is, the geographic clustering of voters for each party—or the deliberate result of invidious gerrymandering. With this brief, amici write to inform the Court of the availability and reliability of the methods they have respectively developed, which enable courts reviewing claims of partisan gerrymandering to test, in a rigorous manner, a State’s assertion that electoral bias in its legislative map can be explained by geography. Works and analyses by amici have been cited and relied upon by federal courts, as well as by Appellants, Appellees, and various amici in this case.2
Parties defending an allegedly gerrymandered redistricting map often argue, as Appellants and their amici do here, that the political geography of a State
1 Counsel for all parties have consented to the filing of this brief. In accordance with Supreme Court Rule 37, amici curiae state that no counsel for a party authored this brief in whole or part and that no party, counsel for a party, or any other person other than amici and their counsel made a monetary contribution to fund the preparation or submission of this brief.
2 See Brief for Appellants at 50–51 (July 28, 2017) (“Appellants Br.”); Brief for Appellees at 18–19, 55–56 (Aug. 28, 2017) (“Appellees Br.”); Brief of the National Republican Congressional Committee at 6–41 (Aug. 4, 2017) (“Br. of the Nat’l Republican Cong. Comm.”); Brief of Bernard Grofman and Ronald Keith Gaddie at 30–31 (Aug. 28, 2017) (“Br. of Grofman and Gaddie”).

2
naturally favors one party and, therefore, a court should not invalidate a legislative map that also favors that party. As relevant here, amici’s work makes it possible to test such claims in light of the particular distribution of voters within that State. Notably, the methods developed by amici are nonpartisan and will sometimes show that a challenged map was not gerrymandered. Appellants recognize as much in citing the work of amici Professors Jowei Chen and Jonathan Rodden. Appellants’ Br. at 50–51.
As detailed below, however, amici’s analyses of the Wisconsin legislative map at issue here confirm beyond a statistical doubt that the map represents an intentional partisan gerrymander. Through computer modeling and statistical analysis, amici have determined that the district lines now before the Court cannot be explained by Wisconsin’s unique political geography. Although Professors Chen and Rodden have concluded in other contexts that maps favoring Republicans can sometimes be explained by political geography rather than intentional gerrymandering, that is simply not the case in Wisconsin.
Amici include Professors Chen and Rodden, as well as Professor Wesley Pegden. Professor Chen is an Associate Professor in the Department of Political Science at the University of Michigan whose pioneering work in analyzing the effects of political geography using computer modeling to create

3
simulated legislative maps has been cited by courts,3 Appellants,4 and amici5 in support of Appellants.6
Professor Rodden is a Professor in the Department of Political Science at Stanford University and the Director of the Spatial Social Science Lab at Stanford University. Along with Professor Chen, Professor Rodden has also used computerized modeling and simulated legislative maps to assess the causes of electoral bias, and his work with Professor Chen has likewise been cited by Appellants and amici here.7 In
3 See Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 344 (4th Cir. 2016).
4 See Appellants’ Br. at 50–51.
5 See; Br. of the Nat’l Republican Cong. Comm. at 6–41, 56–60 (including a criticism of Professor Chen’s work with respect to Wisconsin).
6 Professor Chen’s relevant publications include Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239 (2013); Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015); Jowei Chen & David Cottrell, Evaluating Partisan Gains from Congressional Gerrymandering: Using Computer Simulations to Estimate the Effect of Gerrymandering in the U.S. House, 44 Electoral Studies 329 (2016); and Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L.J. (forthcoming 2017), http://www.umich.edu/~jowei/Political_Geography_Wisconsin_R edistricting.pdf.
7 Professor Rodden’s relevant publications include Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239 (2013); Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015); Ernesto Calvo & Jonathan Rodden, The Achilles Heel of Plurality Systems:

4
addition, Professor Rodden has developed an analytical approach that relies on statistical characterizations to examine how Democrats and Republicans are distributed throughout States, and that draws on cross-State comparisons to assess the effects of partisan geography on each State’s legislative map.8
Professor Pegden is an Associate Professor in the Department of Mathematical Sciences at Carnegie Mellon University whose simulations-based work isolates the effects of political geography in analyzing redistricting maps.9
SUMMARY OF ARGUMENT
It is relatively straightforward for a court to determine that a redistricting plan favors one party over the other. Indeed, so clear is the partisan asymmetry in Wisconsin’s legislative map that, as the district court recounted, it was “undisputed” below that “from 1972 to 2010, not a single legislative map in the country was as asymmetric in its first two elections [as the plan challenged here].” Joint Appendix at 120
Geography and Representation in Multi-Party Democracies, 59 Am. J. Pol. Sci. 789 (2015); and Jonathan Rodden, The Geographic Distribution of Political Preferences, 13 Annual Rev. Pol. Sci. 297 (2010).
8 See Nicholas Eubank & Jonathan Rodden, Who is my Neighbor? The Spatial Efficiency of Partisanship (Aug. 23, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025082.
9 Professor Pegden’s relevant publications include Maria Chikina, Wesley Pegden & Alan Frieze, Assessing significance in a Markov chain without mixing, 114 Proc. of the Nat’l Acad. of Sci. 2860 (2017) (“Assessing Significance”); Maria Chikina, Wesley Pegden & Alan Frieze, An analysis of the Act 43 Wisconsin Assembly district map using the √ Test (Sept. 1, 2017), https://arxiv.org/abs/1708.09852 (“The √ Test”).

5
(July 28, 2017). Yet, even if there is little controversy about the fact that a map will tend to advantage one party over the other, courts face an additional question: Is it possible that such an outcome did not emerge from intentional manipulation by partisan map-drawers? Supporters of one party might be more geographically concentrated than supporters for the other party, such that any good-faith effort to abide by traditional redistricting principles would provide a material advantage to the geographically dispersed party.
Amici Professors Chen and Rodden have referred to this phenomenon as “unintentional gerrymandering.” In a 2013 article, they showed that in many U.S. states, the application of traditional districting principles will produce some level of bias in favor of the Republican Party. Chen & Rodden, supra note 6, at 241–42. This is because, in urbanized states, Democrats tend to cluster in large cities that they win by huge majorities. “As a result, when districting plans are completed, Democrats tend to be inefficiently packed in homogenous districts.” Id. at 241. While Professors Chen and Rodden were hardly the first to recognize this feature of America’s political geography, see, e.g., Vieth v. Jubelirer, 541 U.S. 267, 309 (2004) (Kennedy, J., concurring in the judgment), they advanced the study of the issue by examining it quantitatively. Specifically, the power of technology today enabled them, through computer simulations, to generate hundreds of hypothetical alternative districting plans for any State that were drawn without any partisan consideration. In doing so, they found that “in general,” the neutrally drawn hypothetical maps often reflected a “pro-Republican partisan bias.” Chen & Rodden, supra note 6, at 242.

6
For a legislature that stands accused of impermissible partisan gerrymandering, this phenomenon of political geography is a potential defense. A legislature controlled by one party can always attempt to make a claim that the “packing and cracking” of voters of the other party was a matter of mere partisan geography rather than malicious cartography. Indeed, Appellants and the Wisconsin legislature have offered such a defense here. See Appellants Br. at 50–51 (citing Unintentional Gerrymandering for the proposition that “Wisconsin is hardly unusual” in presenting “‘Republican-favoring efficiency gaps’”); Brief for Wisconsin State Senate and Wisconsin State Assembly at 32–35 (Aug. 4, 2017) (“Br. for Wis. State Senate and Wis. State Assembly”). But—as the work of amici has shown—unintentional gerrymandering does not explain the existence or the extent of partisan asymmetry in every State’s legislative map. It is possible to determine whether unintentional gerrymandering explains some or all of the electoral bias in any given State’s map, and this determination must be based on the unique features of that State’s political geography.
This amicus brief demonstrates that the means now exist for courts to do just that—and to do it in a rigorous, scientific manner. Through the use of the powers of modern computers and statistical analysis, the field of political geography has developed the capacity to test, in replicable fashion, whether the extent to which a legislative map advantages one party over the other can be explained as a result of the relevant State’s political geography—or whether it cannot. The brief explains three related techniques, and uses the lower chamber in the state of Wisconsin as an example, to demonstrate how these techniques can be used to reliably evaluate partisan

7
gerrymandering. In determining whether judicially manageable standards now exist for effectively identifying partisan gerrymanders, this Court should be aware of the emergence of these tools that now enable accurate, consistent, and objective identification of whether a districting plan is a partisan gerrymander and to what extent.
First, the same technique that led Professors Chen and Rodden to describe “unintentional gerrymandering” in the first place—automated districting simulations—can identify the extent to which the partisan advantage built into a specific redistricting plan goes beyond what would be expected if traditional redistricting criteria, along with other legal requirements such as Voting Rights Act, had been the only considerations. Key features of an enacted or proposed plan can be contrasted with a distribution of simulated plans that were drawn without partisan intent. In the case of Wisconsin, it is clear from these simulations that the partisanship of the State legislative districting plan under review here is far outside what could be expected through the application of neutral districting criteria—such that political geography cannot explain the outcomes associated with the enacted map.
Second, computerized simulations can also be used to test the existing map by making small changes to the map, and examining the effect of those changes. This technique makes a series of small modifications of existing district lines—for example, choosing a ward on the boundary of a district and assigning it instead to a neighboring district—while preserving neutral redistricting criteria. Repeatedly making these small changes to the map creates a trajectory of modified district maps, each different from the previous

8
modification by a single ward swap. The statistical work of Professors Maria Chikina, Wesley Pegden, and Alan Frieze translates results about these sequences of modified maps into quantifiable statements about the unusualness of the map in question against the set of all possible districting plans satisfying basic criteria (e.g., one person, one vote, contiguity, etc.) in that State. Applying this technique to Wisconsin’s district map showed that the Act 43 map had greater partisan bias than roughly 99.99999% of the simulated maps on the random trajectory. Together with the statistical work of Professors Chikina, Pegden, and Frieze, this implies that Act 43 is an outlier against all valid districting plans for Wisconsin (not just the simulated maps); specifically, a typical map of Wisconsin would have less than a 1/1000 chance of scoring as gerrymandered as Act 43’s map. The partisan asymmetry in the existing map, therefore, was carefully and deliberately created, not a result of the natural clustering of voters in Wisconsin.
Both of these approaches focus on computerized simulations of alternative ways of redistricting a State. A third approach is closely related, but relies on simple statistical characterizations of each State’s partisan geography rather than redistricting simulations, and it draws explicitly on cross-State comparisons. This approach enables the court to answer a crucial question: given a State’s overall partisanship and the geographic distribution of the voters for the two parties, what seat shares should the parties expect? In the event that a redistricting plan demonstrates an unusually high level of partisan asymmetry, this approach allows courts to evaluate the plausibility of the claim that the partisan advantage is driven by an especially advantageous geographic distribution of that party’s voters. It is easy

9
to demonstrate that such claims cannot be sustained in Wisconsin.
While Appellants and their amici vaguely point to political geography as a possible explanation for the stark partisan asymmetry present in Wisconsin’s legislative map, the Court need not—and should not— accept that unsubstantiated assertion. The effects of political geography can be, and have been, quantitatively tested using the techniques described here. This is precisely what statistical analysis is designed to achieve: To illuminate the likelihood that a particular outcome is caused by one factor (political geography) or another (partisan manipulation). Previously, it was not technically feasible to undertake such quantitative analysis of legislative maps, because redistricting is a complex task that requires hundreds of individual decisions about district design. But the immense power of modern computers and the methods discussed here have made reliable statistical analysis of the causes of partisan advantage in district maps possible.
Empirical examination of Wisconsin’s political geography confirms that it does not explain the challenged map. These results—along with the copious documentary evidence of legislative intent put forth by Plaintiffs and reviewed by the district court—compel affirmance of the district court’s conclusion that Act 43 represents an invidious and unconstitutional partisan gerrymander.
ARGUMENT
A judicially manageable standard for addressing partisan gerrymandering claims must be able to look past a map’s effects and discern the intent of a mapdrawer: it must be able to tell whether “the

10
classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Without clear, reliable evidence shedding light on a legislature’s intent in redistricting, “the results from one gerrymandering case to the next would likely be disparate and inconsistent.” Id. at 308.
Although four members of the Court in Vieth were willing to abandon the search for a workable, reliable standard for assessing partisan gerrymanders, five were not. The lack of a standard at that time, Justice Kennedy wrote, “should not be taken to prove that none will emerge in the future.” Id. at 311. Technological and analytical advances inevitably would be developed to enable courts to identify partisan gerrymanders in a consistent and objective manner, as Justice Kennedy recognized: “new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose,” which would “facilitate court efforts to identify and remedy th[ose] burdens.” Id. at 312–13.
This brief describes just such “new methods of analysis”—methods that shed strong light in an area that was previously marked by murkiness. The methods developed by amici and other scholars rely on a combination of recently developed computational power and techniques of data analysis to determine whether electoral bias in a State’s legislative map results from the State’s natural political geography or through a partisan gerrymander. Using these tools, the Court can confidently determine when an intentional political gerrymander has occurred under

11

legislative acts like Wisconsin’s 2011 redistricting law, Act 43.

I. THE

EFFECTS

OF

POLITICAL

GEOGRAPHY CAN BE MEASURED.

It is a straightforward process to determine that a districting map has produced partisan asymmetry— that is, where votes translate more effectively into seats for one party than for the other. Measures like the efficiency gap, the median-to-mean ratio, and partisan bias provide this insight. See, e.g., Appellees’ Br. at 11–13 & n.5; Br. of Grofman and Gaddie at 26– 28; Brief of Heather K. Gerken, et al. at 13–17 (Aug. 30, 2017). But, as Appellees agree, such measures are not the end of the story. See Appellees’ Br. at 2–3. An asymmetry in the transformation of votes to seats can alert a court that a partisan gerrymander might have occurred, but it cannot necessarily rule out political geography as a neutral explanation for partisan asymmetry.

As Justice Kennedy hypothesized in Vieth, new techniques developed using modern computer simulations and statistical analysis now permit courts to reliably determine when partisan asymmetry in an electoral map arises from invidious gerrymandering rather than pure geography. The three related techniques described below permit courts—in a rigorous, objective, and replicable manner—to assess whether partisan asymmetry in an electoral map results from partisan geography or malicious cartography.

A. Districting Simulations Based On Traditional Redistricting Criteria.

The same technique that led to the initial exposition of “unintentional gerrymandering” by Professors Chen

12
and Rodden in 2013 can be also used to identify when political geography is, in fact, responsible for a given map’s disproportionate results. At bottom, the logic of this simulation-based technique is that “if a computer randomly draws five hundred redistricting plans following traditional redistricting criteria, and the actual enacted plans fall completely outside the range of what the computer has drawn, one can conclude that the traditional criteria do not explain that enacted plan.” Raleigh Wake Citizens Ass’n, 827 F.3d at 344.
Professor Chen’s process for analyzing a potentially gerrymandered districting map begins with a computer generating hundreds of simulated districting maps for a state. Chen, supra note 6, at 6. In drawing the simulated legislative boundaries, the computer can be programmed, as appropriate to the analysis in question, to optimize several traditional districting criteria relevant to the State at issue, such as population equality (to conform to the principle of one person, one vote), preservation of county and municipal boundaries, and geographic compactness.10 Id. at 7–9. The simulations are drawn to optimize on these neutral traditional redistricting criteria, so they are devoid of any partisan strategy. Then, using actual election results, the partisan effects of these simulated maps are compared to the partisan effects of the actual map. Id. at 11. If the enacted plan exhibits greater partisan asymmetry than a large majority or all of the simulations, courts can conclude, to a statistical certainty, that traditional principles and political
10 Additionally, where a state has districts in which a racial minority group makes up a majority of the voters in those districts, Dr. Chen’s methodology allows for keeping such districts intact across the simulations if appropriate to the analysis in question. Id. at 10.

13
geography alone cannot explain the map’s disproportionate partisan advantage, and that the results were instead obtained through invidious cartography. See Raleigh Wake Citizens Ass’n, 827 F.3d at 344.11
Notably, Dr. Chen’s simulation-based methodology is derived from the same procedures that allowed Dr. Chen and Dr. Rodden to explain how and why even neutrally drawn plans sometimes exhibit partisan asymmetry. See Appellants’ Br. at 51–52. The fact that both sides recognize the validity of the principles and logic underlying Dr. Chen’s approach is not surprising. It is a nonpartisan methodology that does not rest on any assumption that proportional representation is required.
Indeed, Dr. Chen’s methodology will sometimes show that at least some electoral advantage for one party is natural, given the political geography of a state, and not the result of invidious means—just as Appellants argue is the case here. Id. at 50–51 (citing Dr. Chen and Dr. Rodden’s work and arguing that Republican-favoring political geography is “part of [the] political landscape” in Wisconsin); see also Br. for Wis. State Senate and Wis. State Assembly at 32–34. Dr. Chen’s approach enables courts to confidently address such an argument by distinguishing between
11 Like Professors Chen and Rodden, Professors Wendy Tam Cho and Yan Y. Liu also analyze the effects of political geography by using automated simulations to create a large number of hypothetical districts for comparison. See Wendy K. Tam Cho & Yan Y. Liu, Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans, 15 Election L.J. 351, 355–56 (2016). Professors Cho and Liu harness the power of a supercomputer to conduct a similar analysis on a larger set of alternative maps. See id. at 354–55.

14
cases in which the partisan advantages produced by a plan could have been anticipated purely from human geography and cases in which the extent of partisan advantage can only be the result of intentional partisan manipulation. When political geography does not explain partisan asymmetry, Dr. Chen’s approach is powerful evidence of intentional gerrymandering.
B. Modifying Actual Districts To Measure Effects Of Slight Changes.
Like Professor Chen’s analysis, a related approach developed by Professors Maria Chikina, Wesley Pegden, and Alan Frieze also uses computer simulations. But, instead of generating alternative maps from scratch as Professor Chen does, their method starts with the actual legislative map and examines the effects of billions of small changes to the existing district lines, which permits them to compare the actual map to all possible maps that satisfy traditional districting criteria.
Mechanically, their approach works by beginning with the actual legislative map, and then generating a long sequence of new maps by changing the district membership a single ward at a time.12 Using an algorithm they developed in earlier work, Assessing Significance, supra note 9, their model ensures that traditional districting criteria are preserved: for example, a ward can only be changed so long as each district after the change remains contiguous and
12 The mechanical approach used by Professors Chikina, Pegden, and Frieze—that is, starting with actual districts and making many small changes to them to measure effects of partisan asymmetry—has also been applied by other academics in other States. See generally Jonathan C. Mattingly & Christy Vaughn, Redistricting and the Will of the People (Oct. 29, 2014) (preliminary version), https://arxiv.org/abs/1410.8796.

15

geometrically reasonable and the one-person, one-vote principle is followed. Id. at 4.

Using voting patterns for the voters within each ward, Professors Chikina, Pegden, and Frieze then simulate the outcomes of elections for each map generated by their algorithm. They compare results under the actual map to results of these billions of simulated elections to assess whether the actual map is an outlier. If the actual map does create substantially more partisan asymmetry than the set of randomly generated maps, then intentional gerrymandering can be inferred.

Finally, Professors Chikina, Pegden, and Frieze apply a statistical theorem that they have developed to the set of billions of randomly generated maps to draw conclusions about how the actual legislative map compares with the set of all possible maps (not merely the simulated maps they create) that comply with legal requirements such as contiguity, Voting Rights Act requirements, and one-person-one-vote principles. They calculate the statistical likelihood that a randomly generated map within the set of all possible valid maps would be as biased as or more biased than the actual map. If the actual map is a dramatic outlier from the set of all possible maps, the conclusion of intentional gerrymandering follows.

C. Statistical

Modeling:

“Neighborhood” Approach.

The

A third related approach statistically analyzes each state’s political geography to answer the same question as the above two techniques: if a party has a disproportionately large seat share given its vote share, to what extent is this driven by advantageous political geography? This approach, developed by Professors Nicholas Eubank and Jonathan Rodden,

16
uses statistical analysis of detailed electoral data (instead of redistricting simulations) to reliably measure the extent to which one party’s natural political geography is superior to the other’s. Eubank & Rodden, supra note 8. Like the simulation-based techniques described above, this technique helps discern when a districting plan provides a party with an advantage unexplained by natural political geography.
Professors Eubank and Rodden’s approach quantifies how efficiently voters of a party are dispersed for purposes of maximizing legislative seat wins—or, said differently, the natural packing and cracking of a party’s voters. Id. at 2–3. To do so, the technique focuses on how closely each individual voter in a state is situated, geographically, to other voters of each party. Using precinct-level election results, it generates a “neighborhood” for each voter that corresponds to the size of legislative districts. Id. at 15–16. Each voter’s “neighborhood,” therefore, is analogous to a district drawn without regard to any partisan factors. These “neighborhoods” then can be analyzed to determine what share of each voter’s nearest neighbors are members of his or her own party—a measure of natural packing—and what share of each party’s voters live in “neighborhoods” where his or her party is a majority—a measure of natural cracking. Id.
These measures lie at the heart of unintentional gerrymandering. To illustrate, consider a party that has a statewide support level of around 45%. But imagine that a large share of its voters—60%—live in “neighborhoods” where the party constitutes a local majority at the scale of state legislative districts. If the other party enjoys statewide support of around

17

55% but has a less advantageous geographic spread of voters—such that only half of its supporters live in neighborhoods where the party is a local majority13— the first party would win seats well beyond its vote share in legislative elections. The greater the share of a party’s voters living in party-majority “neighborhoods,” the better a party will perform in legislative elections relative to its overall vote share, and the greater the likelihood that natural political geography explains disproportionate election results under a districting map. Id. at 16–17.

This technique enables courts to see—and quantify—the signs of partisan gerrymandering. Put simply, in some states, the party in control of the redistricting process wins seats far beyond what would be expected based on their overall voter support and their voters’ geographic distribution as measured by their statistical “neighborhoods.” When that happens, a court can rule out political geography and conclude that those disproportionate results likely arose through invidious means.

II. THE PARTISAN ASYMMETRY IN

WISCONSIN’S

LEGISLATIVE

MAP

CANNOT BE EXPLAINED BY POLITICAL

GEOGRAPHY.

A. Reliable Analysis Confirms That Wisconsin’s Political Geography Did Not Cause Its Legislative Map’s Electoral Bias.

After Wisconsin’s Republican-controlled state government passed Act 43, its effects were immediate.

13 For example, if the second party’s voters were largely citydwellers.

18
In the 2012 state legislative election (the first after Act 43’s new map went into effect), Republicans won a supermajority of 60 of 99 seats in the State Assembly, despite winning just 48.6% of the statewide, two-party vote. Appendix of Appellants at 148a (Mar. 24, 2017). Republicans widened their majority in 2014, winning 63 of 99 seats in 2014 on 52% of the vote. Id. Appellants sued in 2015, alleging that Act 43’s map was an unconstitutional gerrymander, and a threejudge panel of the Western District of Wisconsin held that it was. Id. at 1a–4a.
After finding that Act 43’s map was intended to impair, and actually impaired, the effectiveness of votes based on party affiliation, the court found that the map was not explained by “legitimate state prerogatives and neutral factors that are implicated in the districting process.” Id. at 178a–180a. In addressing Appellees’ “primary argument” on justification for the map—that “Wisconsin’s political geography naturally favors Republicans because Democratic voters reside in more geographically concentrated areas”—the court found that Republicans’ natural advantage “simply [did] not explain adequately the sizeable disparate effect seen . . . under Act 43.” Id. at 180a.
The three-judge court’s finding on justification was correct. It is true, as Appellants argued below and they and their amici continue to argue now, that Wisconsin Democrats are somewhat concentrated in Milwaukee and Madison, resulting in a small natural Republican advantage based on political geography (though, as noted below, this effect is limited). Id. at 180a–181a; Appellants’ Br. at 50–51; Br. of the Nat’l Republican Cong. Comm. at 6–9. But political geography falls far short of explaining the highly disproportionate

19
election results under Act 43. The computer-based modeling techniques developed by Dr. Chen, Drs. Chikina, Pegden, and Frieze, and Drs. Eubank and Rodden allow this conclusion to be drawn beyond any statistical doubt.
In applying his methodology, which involves creating simulated districts based on actual Wisconsin voter data from the 2012 presidential election and traditional districting criteria, Dr. Chen found that Act 43 produced election results that were more than two-and-a-half times as disproportionate as the single most biased simulated map. Chen, supra note 6, at 3– 4. More specifically, 72% of his simulations showed minimal partisan advantage when Wisconsin districts were drawn on the basis of traditional districting principles; 28% exhibited a slight Republican advantage, with efficiency gaps between 3% and 6% in Republicans’ favor. Id. at 3. But Act 43’s efficiency gap was 15.1% in favor of Republicans. Id. at 13. Thus, he found, any “natural electoral bias” inherent in Wisconsin’s political geography “pale[s] in comparison to the much more extreme electoral bias” of Act 43. Id.
Drs. Chikina, Pegden, and Frieze’s computer-based method of applying many small modifications to the existing map shows the same thing. In their analysis of Wisconsin, The √ Test, supra note 9, they evaluated election outcomes for more than 1 trillion maps, each produced by a sequence of small changes to the initial map. They observed that the Act 43 map is an extreme outlier among these randomly generated maps, with an efficiency gap more favorable to Republicans than 99.99999% of the maps derived from making small random changes to the initial map. Then, applying their statistical theorem, Professors Chikina, Pegden, and Frieze concluded that the Act 43 map is an outlier

20
not just among the maps they generated, but among the set of all possible valid maps (those with districts that are contiguous, satisfy one-person, one-vote, preserve majority-minority districts, etc.) for Wisconsin at a statistical significance of less than .001. In other words, there is less than a one in one thousand chance that a random map would appear as biased as the Act 43 map.
So too with Dr. Eubank and Dr. Rodden’s spatial statistical model. Using their “neighborhood” approach, they found that in several States, Republicans do have an advantage because of political geography—that is, in those States, Republicans can expect to win a higher percentage of legislative seats than their percentage of statewide vote share because Democrats are inefficiently clustered in large cities. Eubank & Rodden, supra note 8, at 2. But Wisconsin is not one of those states. Id. In Wisconsin, “Democrats are dispersed relatively efficiently across mediumsized cities.” Id. Because “the spatial distribution of Democrats in Wisconsin is not especially inefficient, . . . the Republican seat prediction for Wisconsin is lower than for other states with similar Republican statewide support”—yet the actual Republican seat share “is higher than the model prediction by over 12 percentage points.” Id. at 30. In other words, Democrats’ spatial distribution does not support a conclusion that political geography caused the partisan asymmetry in Act 43’s map, raising a strong inference of partisan gerrymandering. Id. at 30–31.
In this case, therefore, each of the analytical methods described for measuring the effect of political geography uniformly supports one conclusion: that Act 43 is an extreme, intentional partisan gerrymander.

21
B. Generalized Statements About Political Geography Cannot Explain The Wisconsin Map’s Electoral Bias.
Appellants and their amici argue that measures of partisan asymmetry do not, by themselves, show that an intentional partisan gerrymander has occurred because political geography may give rise to naturally occurring asymmetry even in a neutrally drawn map. See Appellants’ Br. at 48–53; Br. of the Nat’l Republican Cong. Comm. at 6–9; Br. for Wis. State Senate and Wis. State Assembly at 34–36. Appellees do not dispute this point: They agree that to find intentional partisan gerrymandering, a court “must conclude that there is no valid justification” for a map’s partisan asymmetry, such as naturally occurring packing or cracking of one party’s voters as a result of political geography. See Appellees’ Br. at 2–3.
The techniques described in Part I.A go directly to this prong of the test for finding invidious gerrymandering—enabling a determination of whether partisan asymmetry is explained by the neutral factor of political geography. The computerbased techniques described in Part I.A test—indeed, show to a statistical certainty—whether the partisan distribution of seats under an enacted redistricting plan is explained by a particular State’s natural political geography or instead was obtained through a process of intentional partisan gerrymandering
Because these techniques permit reliable testing of whether political geography in a particular State causes partisan asymmetry, a biased map cannot be explained based merely on the possibility that political geography is the cause. Nor can a biased map be explained through an argument that political

22
geography leads to partisan asymmetry in other States.
Yet that is the approach taken by Appellants and their amici. Appellants cite Professors Chen and Rodden’s Unintentional Gerrymandering—which does not discuss Wisconsin—in order to suggest that Wisconsin should be lumped in with other States whose political geography does create a significant pro-Republican bias. Appellants Br. at 50–51. Appellants amicus the National Republican Congressional Committee likewise relies on Unintentional Gerrymandering and “examples from other states” to argue that the Wisconsin map’s electoral bias is caused by political geography. Br. of the Nat’l Republican Cong. Comm. at 7. This argument cannot be sustained. The effects of a State’s political geography must be measured based on that State’s political geography. Whether the partisan asymmetry in Wisconsin’s legislative map is driven by political geography cannot be determined based on generalizations or analyses of other States. Indeed, when amici and their colleagues examined the specific facts of Wisconsin’s political geography using the three methods discussed in Part I.A, each determined to a statistical certainty that political geography cannot explain the electoral bias reflected in the Act 43 map.
Amici curiae the Wisconsin State Senate and Assembly cite evidence specific to Wisconsin, but they do so only at a level of generality so high that it does not permit any reliable conclusion. See Br. for Wis. State Senate and State Assembly at 32–34. They assert vaguely that “[w]hile Democratic voters are uniquely packed in urban centers like Milwaukee and Madison, Republicans are more evenly dispersed throughout the State.” Id. at 33 (citation and internal

23
quotation marks omitted). And they cite individual election results to assert that “Republican voters are becoming more dispersed throughout Wisconsin, while Democratic voters are becoming more concentrated.” Id.; see also Br. of the Nat’l Republican Cong. Comm. at 8–9; Brief of the Wisconsin Institute for Law & Liberty at 12–14 (Aug. 4, 2017). Without quantitatively analyzing the effects of Wisconsin’s voter distribution as the amici political geographers have done, however, these generic statements are not informative. Saying that Democrats are “packed” while Republicans are “dispersed” does not tell the Court (a) whether the voter distribution is sufficiently disparate to create a pro-Republican bias, (b) if so, the degree of any pro-Republican bias, or (c) most importantly, whether any naturally occurring proRepublican bias is of sufficient scope to explain the electoral bias represented in Wisconsin’s legislative map.
Nor is any other criticism of the techniques described here persuasive. Amicus the National Republican Congressional Committee asserts, for example, that “[t]here are several problems” with Professor Chen’s analysis of Wisconsin’s political geography—but none of the asserted “problems” holds up. The Committee states first that “the paper never addressed incumbency, which is a key traditional neutral redistricting criterion.” Br. of the Nat’l Republican Cong. Comm. at 57. But the protection of incumbents as a redistricting criterion is a state-bystate matter, and indeed, it is not part of the traditional criteria in Wisconsin. See Wis. Const. art. IV, §§ 4–5. The Committee also argues that Professor Chen erred in “us[ing] Mitt Romney’s share of the November 2012 two party presidential vote” to assess partisan bias because it is supposedly “both out of date

24
and not reflective of the vote in assembly or congressional voting districts.” Br. of the Nat’l Republican Cong. Comm. at 58. This, too, is incorrect. In fact, the evidence in this case showed that “Wisconsin voting patterns have been remarkably stable over time,” and that presidential and Assembly voting is highly correlated. See Appellees’ Br. at 49– 50 (citing evidence). Finally, the Committee argues that it “has never contended, and do[es] not contend here, that political geography is the only reason for the make up of Wisconsin’s current redistricting plan.” Br. of the Nat’l Republican Cong. Comm. at 59. But the Committee never offers any alternative explanation for the legislative map’s electoral bias.
And there is none. Each of the techniques described above is, taken alone, powerful evidence of the invidious intent behind Wisconsin’s districting map. Taken together, these techniques uniformly and unambiguously support the same conclusion: that Wisconsin’s political geography does not explain the partisan asymmetry that characterizes its redistricting plan. The additional evidence of legislative intent to gain partisan advantage marshaled by Appellees leads ineluctably to the same result. This Court can thus conclude with great confidence that, as the district court held, Wisconsin’s Act 43 is an invidious partisan gerrymander.

25

CONCLUSION

As Justice Kennedy suggested at the time of Vieth,

“new technologies” have “produce[d] new methods of

analysis that make more evident the precise nature” of

gerrymandering. Vieth, 541 U.S. at 312–13 (Kennedy,

J., concurring in the judgment). This brief presents

three such methods, all of which demonstrate

Wisconsin’s districting map was a partisan

gerrymander,

specifically

designed

to

“burden . . . [the] representational rights” of

Wisconsin Democrats. Id. The Court should affirm.

Respectfully submitted,

RICHARD H. PILDES 40 Washington Sq.
South New York, NY 10012 (212) 998-6377
JEFFREY T. GREEN SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000

TACY F. FLINT * JASON G. MARSICO SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 (312) 853-7000 tflint@sidley.com

Counsel for Amici Curiae

September 5, 2017

* Counsel of Record

 
 No. 16-1161

IN THE
Supreme Court of the United States
____________________

BEVERLY R. GILL, ET AL., Appellants,
v. WILLIAM WHITFORD, ET AL.,
Appellees. ____________________

On Appeal from the United States District Court for the Western District of Wisconsin
____________________

BRIEF FOR THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW AS AMI-
CUS CURIAE IN SUPPORT OF APPELLEES
____________________

WENDY R. WEISER MICHAEL C. LI DANIEL I. WEINER BRENT FERGUSON THOMAS P. WOLF THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW 120 Broadway, Suite 1750 New York, N.Y. 10271 (646) 292-8310

ANTON METLITSKY (Counsel of Record)
ametlitsky@omm.com O’MELVENY & MYERS LLP Times Square Tower 7 Times Square New York, N.Y. 10036 (212) 326-2000
BRADLEY N. GARCIA SAMANTHA M. GOLDSTEIN O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 (202) 383-5300

Attorneys for Amicus Curiae

i TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .......................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................ 2
ARGUMENT ............................................................. 7
I. JUDICIALLY MANAGEABLE STANDARDS EXIST TO GUIDE AND CONSTRAIN COURTS IN IDENTIFYING UNCONSTITUTIONAL, EXTREME PARTISAN GERRYMANDERING ..................... 7
A. Appellees Have Provided A Discernible And Manageable Standard ............................ 8
B. Two Straightforward Criteria—SingleParty Control Of Redistricting, And A Recent History Of Competitive Statewide Elections—Are Strongly Correlated With Intentional, Extreme, And Durable Partisan Bias, And Provide Useful Evidence For Assessing And Limiting Partisan-Gerrymandering Claims ........................................................... 11
C. Wisconsin’s Map Is Plainly Unconstitutional........................................... 19
II. EXTREME PARTISAN GERRYMANDERING OFFENDS FUNDAMENTAL CONSTITUTIONAL PRINCIPLES, PLACING IT OUTSIDE OF NORMAL AND ACCEPTABLE LEGISLATIVE CONDUCT AND WARRANTING JUDICIAL INTERVENTION............................................... 21

ii
TABLE OF CONTENTS (continued)

Page

A. Extreme Partisan Gerrymandering Undermines Legislatures’ Accountability To The People ...................... 21
B. Extreme Partisan Gerrymandering Creates Legislatures That Are Not Representative Of The Electorate ............... 27
C. Extreme Partisan Gerrymanders Violate The First Amendment Rights To Political Expression And Association That Are Vital To Representative Democracy .................................................... 33
CONCLUSION ........................................................ 37

iii
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................34
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015)......................2, 7, 24, 31, 33
Baker v. Carr, 369 U.S. 186 (1962)..............................................26
Brown v. Thomson, 462 U.S. 835 (1983)..............................................11
Burdick v. Takushi, 504 U.S. 428 (1992)..............................................33
Bush v. Vera, 517 U.S. 952 (1996)................................................3
Carrington v. Rash, 380 U.S. 89 (1965)................................................34
Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290 (1981)........................................34, 35
Cook v. Gralike, 531 U.S. 510 (2001)..............................................29
Davis v. Bandemer, 478 U.S. 109 (1986)..............................................10
Elrod v. Burns, 427 U.S. 347 (1976)..............................................34
Evenwel v. Abbott, 136 S. Ct. 1120 (2016)....................................30, 32

iv
TABLE OF AUTHORITIES (continued)
Page(s)
Gaffney v. Cummings, 412 U.S. 735 (1973)................................................3
Johnson v. De Grandy, 512 U.S. 997 (1994)..............................................22
Kusper v. Pontikes, 414 U.S. 51 (1973)..........................................34, 35
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)......................................passim
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964)..............................................30
McConnell v. FEC, 540 U.S. 93 (2003)................................................22
McCutcheon v. FEC, 134 S. Ct. 1434 (2014)..........................................35
O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712 (1996)..............................................34
Police Dept. of City of Chi. v. Mosley, 408 U.S. 92 (1972)................................................33
Powell v. McCormack, 395 U.S. 486 (1969)..............................................24
Reynolds v. Sims, 377 U.S. 533 (1964)......................................passim
Rogers v. Lodge, 458 U.S. 613 (1993)..............................................26

v
TABLE OF AUTHORITIES (continued)
Page(s)
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986)..............................................35
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)........................................23, 29
U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977)..................................................27
United States v. Carolene Prods., Co., 304 U.S. 144 (1938)..............................................25
Vieth v. Jubelirer, 541 U.S. 267 (2004)......................................passim
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)..................................10, 16, 18
Wesberry v. Sanders, 376 U.S. 1 (1964)..................................................29
Other Authorities
Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 Am. Pol. Sci. Rev. 541 (1994) ......................................16
Anthony J. McGann, et al., Gerrymandering in America (2016) ............ passim
36th Cong., 2d Sess. app. 749 (1842)........................29

vi
TABLE OF AUTHORITIES (continued)
Page(s)
Daniel R. Ortiz, Federalism, Reapportionment, and Incumbency: Leading the Legislature to Police Itself, 4 J.L. & Pol. 653 (1988) .............................27
Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (2014) ...................................................27
Federalist No. 10 (James Madison)....................24, 26
Federalist No. 54 (James Madison)..........................29
Federalist No. 55 (James Madison)....................28, 29
Federalist No. 59 (Alexander Hamilton)..................28
Federalist No. 61 (Alexander Hamilton)..................28
G. Bingham Powell, Jr., Elections As Instruments of Democracy (2000) .......................23
Gordon E. Baker, The Unfinished Reapportionment Revolution, in Political Gerrymandering and the Courts 11 (Bernard Grofman ed., 1990) .....................................................................26
Gordon S. Wood, The Creation of the American Republic, 1776-1787 (1969)....................................................................28
Guy-Uriel Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Calif. L. Rev. 1209 (2003) ....................................34

vii
TABLE OF AUTHORITIES (continued)
Page(s)
James Madison, Notes of the Debate in the Federal Convention of 1787 (1987)....................................................................28
Joel Francis Paschal, The House of Representatives: ‘Grand Depository of the Democratic Principle’?, 17 L. & Contemp. Problems 276 (1952) ...........................23
John Adams, Thoughts on Government: Applicable to the Present State of the American Colonies; In a Letter from a Gentleman to his Friend (Apr. 1776) ...........................................................32
Keith E. Whittington, The Federalist Society’s Article I Initiative: The Place of Congress in the Constitutional Order, 40 Harv. J.L. & Pub. Pol’y 573 (1987) .......................................28
Laura Royden & Michael Li, Brennan Ctr. for Justice, Extreme Maps (2017)..............................................................14, 15
Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Geo. L.J. 491 (1997) ........................23
Michael P. McDonald, A Comparative Analysis of Redistricting Institutions in the United States, 2001-02, 4 State Pol. & Pol’y Q. 371 (2004) ....................12, 16

viii
TABLE OF AUTHORITIES (continued)
Page(s)
Neil Gorsuch & Michael Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State-Imposed Term Limitations, 20 Hofstra L. Rev. 341 (1991)...................................31
Presidential Election Results, N.Y. Times (Aug. 9, 2017) ............................................13
II Records of the Federal Convention of 1787 (M. Farrand rev. 1966) ...............................24
III Records of the Federal Convention of 1787 (M. Farrand ed. 1911) (1937 revised ed.) ...........................................................30
Robert B. McKay, Reapportionment: The Law and Politics of Equal Representation (1965) .........................................28
U.S. Const., art. I, § 2..........................................22, 30
U.S. Const., art. I, § 2, cl. 3.................................22, 30
U.S. Const., art. I, § 2, cl. 4.......................................22
U.S. Const., art. I, § 3..........................................22, 30
U.S. Const., art. IV, § 4 .............................................24

INTEREST OF AMICUS CURIAE1
Amicus curiae the Brennan Center for Justice at N.Y.U. School of Law (“Brennan Center”) is a notfor-profit, non-partisan think tank and public interest law institute that seeks to improve the systems of democracy and justice. The Brennan Center was founded in 1995 to honor the extraordinary contributions of Justice William J. Brennan, Jr. to American law and society. Through its Democracy Program, the Brennan Center seeks to bring the ideal of representative self-government closer to reality, including through work to protect the right to vote and ensure fair and constitutional redistricting practices. The Brennan Center conducts empirical, qualitative, historical, and legal research on electoral practices and redistricting and has participated in a number of voting rights cases before this Court.
The Brennan Center has a significant interest in this case because appellants ask this Court to rule on the constitutionality of extreme partisan gerrymandering, an especially rare but pernicious redistricting tactic that deeply offends the constitutional principles that form the foundation of our representative democracy. On the basis of its own research and studies undertaken by others, the Brennan Center can apprise the Court of readily discernible evidentiary signposts that can help it accurately
1 No counsel for any party has authored this brief in whole or in part, and no person other than amicus curiae, its members, or its counsel have made any monetary contribution intended to fund the preparation or submission of this brief. This brief does not purport to convey the position of the New York University School of Law. The parties’ letters consenting to the filing of this brief have been filed with the Clerk’s office.

2
differentiate between lawful redistricting and the type of unlawful partisan gerrymandering that has almost certainly occurred in a handful of the congressional maps this redistricting cycle. The Brennan Center hopes that its perspective will help the Court define a partisan gerrymandering cause of action that reliably targets extremely biased and deeply constitutionally offensive maps, limits the range of plausible claims in ways easily understandable by courts and potential litigants, vindicates bedrock constitutional rights and values, and respects states’ lawful political processes.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case involves an extreme and particularly harmful, but relatively rare, form of gerrymandering: a political party’s intentional manipulation of the redistricting process to give itself a large legislative majority and to insulate that majority from future changes in voter preferences. This Court has already recognized that such extreme partisan gerrymanders are “incompatible with democratic principles.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (decrying “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power”). Indeed, when this Court faced a partisan gerrymander challenge in Vieth v. Jubelirer, 541 U.S. 267 (2004), every Justice agreed that “an excessive injection of politics is unlawful.” Id. at 293 (plurality op.).
The problem in prior cases, however, was that the Court struggled to find a standard that would allow

3
courts to invalidate invidiously discriminatory maps, while at the same time avoiding judicial interference with the large number of maps drawn with ordinary and lawful political considerations in mind. The Brennan Center submits this brief to explain that the pernicious form of extreme gerrymandering at issue in this case is both rare—likely occurring in only a handful of the congressional maps this redistricting cycle—and easily distinguishable from the types of “ordinary” political considerations this Court has suggested are tolerable in the redistricting process, such as attempts to “achieve a rough approximation of the statewide political strengths” of each party, Gaffney v. Cummings, 412 U.S. 735, 752-53 (1973), or to “avoid[] contests between incumbent[s],” Bush v. Vera, 517 U.S. 952, 964 (1996) (quotation omitted) (second alteration in original).
The Court can construct a cause of action that reliably flags extreme partisan gerrymanders, while placing meaningful constraints on judicial intervention. Appellees’ proposed standard for a partisangerrymandering cause of action—which one court has already embraced and the Brennan Center fully endorses—provides a sound model for the Court. Appellees’ standard is trained at precisely the type of discriminatory and anti-democratic action the Constitution prohibits, and will compel courts to distinguish a party’s impermissible effort to entrench itself in power from the more benign political considerations this Court has said are permissible.
The courts have at hand additional clear and objective criteria that they can use in conjunction with appellees’ standard to draw those distinctions and further narrow the range of viable cases. This brief

4
highlights two readily observable criteria that— when they appear in a given state—are in fact highly correlated with extreme partisan gerrymanders: (a) single-party control of the redistricting process, and (b) a recent history of close statewide elections. The first factor is a prerequisite for a governing majority to entrench itself in power. And the second factor provides the motive to take advantage of that opportunity and engage in extreme partisan gerrymandering.
These intuitions are confirmed by the empirical evidence drawn from elections under this cycle’s congressional maps: Each of the maps with statistically high levels of partisan bias were drawn in states that experienced single-party control over the redistricting process and, with one partial exception, that recently featured close statewide races. This is true in states controlled by either of the major parties. By contrast, maps drawn by commissions, courts, and split-control state governments exhibited much lower levels of partisan bias, and none had high levels of bias persisting across all three of the elections since the 2011 round of redistricting.
This result is unsurprising. When a single party takes control of the redistricting process in a state with a recent history of competitive statewide elections, the majority is more likely to intentionally seize the opportunity to entrench itself, that attempt is more likely to work, and any proffered justification for the state’s actions is less likely to be plausible. The presence of these two factors is therefore strong evidence of an unconstitutional gerrymander, and their absence should usually lead a court to reject a partisan-gerrymandering challenge. Courts can use

5
these indicia—in conjunction with statistical evidence and other easily identified deviations from normal legislative processes, such as unusual secrecy or speed—to readily distinguish rare, invidious partisan gerrymanders from “normal politics.” Prospective plaintiffs, in turn, will be able to use these indicia as ex ante guidance to the probable viability of their claims, thus limiting the likelihood of meritless litigation burdening the dockets of district courts moving forward.
The record in this case proves the point. Wisconsin is essentially evenly divided between Republicans and Democrats, as statewide elections have repeatedly demonstrated. Yet during the last redistricting cycle, following a wave election, Republicans happened to control both the Governorship and the Legislature. They therefore had the opportunity to manipulate Wisconsin’s district lines to guarantee themselves large legislative majorities into the future, even if they were to lose a majority of the statewide vote. And they seized it. They shut Democrats, and even rank-and-file Republicans, out of the map-drawing process, and acted with unusual speed and secrecy to push through maps that were intentionally designed to, and effectively did, entrench Republicans in power. That conduct transgressed the boundaries of normal politics, and because it was carried out in a closely divided state by a party enjoying sole control over the redistricting process, this Court should be highly skeptical of appellants’ attempted justifications of the resulting maps.
By following appellees’ test—particularly when guided by the objective indicia mentioned above—

6
courts will be able to more easily identify and target those especially harmful redistricting practices that (a) contravene basic, clear, and time-honored constitutional values that should otherwise define and constrain democratic lawmaking and (b) necessarily warrant judicial intervention. Fundamental principles—reflected throughout the Constitution’s text, structure, and history—require government to be accountable to the electorate, to represent the people through the legislature, and to safeguard the political equality of all citizens. Extreme partisan gerrymandering—which insulates a faction that happens to be a majority at the time of redistricting from removal by voters, renders the legislature unrepresentative of the polity as a whole, and discriminates against voters based on their partisan affiliation— violates each of these principles, placing it firmly outside of normal, acceptable politics. Moreover, precisely because extreme partisan gerrymandering subverts normal politics, it cannot be addressed by normal politics. Under these circumstances, the need for a judicial corrective to the enduring subversion of the political process is at its height.
Authorizing courts to police such extreme abuses of the redistricting process in the ways discussed will amount to a limited, constitutionally-mandated license for judicial intervention to protect our representative form of government. It will not permit courts to interfere in the mine run of redistricting processes. This Court should endorse appellees’ standard and affirm the judgment below.

7
ARGUMENT
I. JUDICIALLY MANAGEABLE STANDARDS EXIST TO GUIDE AND CONSTRAIN COURTS IN IDENTIFYING UNCONSTITUTIONAL, EXTREME PARTISAN GERRYMANDERING
This case involves an extreme partisan gerrymander, meaning “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature, 135 S. Ct. at 2658. “[T]his Court has recognized” that such severe “[p]artisan gerrymanders … [are incompatible] with democratic principles.” Id. (quoting Vieth, 541 U.S. at 292 (plurality op.)) (second alteration in original).
Indeed, every Justice in Vieth agreed that “an excessive injection of politics is unlawful.” 541 U.S. at 293 (plurality op.). Both this Court and individual Justices, moreover, have on several other occasions specifically identified actions that entrench a political party as constitutionally impermissible. See, e.g., League of United Latin Am. Citizens v. Perry (“LULAC”), 548 U.S. 399, 419-20 (2006) (expressing concern with map “that entrenches an electoral minority” and seeking “a standard for deciding how much partisan dominance is too much”); Vieth, 541 U.S. at 365 (Breyer, J., dissenting) (“The bottom line is that courts should be able to identify the presence of one important gerrymandering evil, the unjustified entrenching in power of a political party that the voters have rejected.”). Appellants do not even dispute that severe partisan gerrymanders violate the Constitution.

8
Judicially manageable standards exist that will permit courts to intervene in redistricting disputes in a focused and limited way to stamp out extreme partisan gerrymanders. Appellees have already offered one such standard, which is specifically defined to address the precise problem of entrenchment posed by these pernicious gerrymanders. Appellees’ standard is compatible with certain basic, objective, empirically grounded indicia that can further structure limited judicial action in the redistricting space. Under these circumstances, the Court can move confidently, but surgically, to eliminate the worst partisan-gerrymandering abuses.
A. Appellees Have Provided A Discernible And Manageable Standard
Appellees’ three-pronged test—which is rooted in longstanding constitutional precedents—targets extreme partisan gerrymandering and the constitutional harms that it inflicts.2 First, challengers must show that a plan is intended “to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation.” Appellees’ Br. 2 (quotation omitted). That is, plaintiffs must demonstrate that the party in power sought to “make the political system systematically unresponsive to a particular segment of the voters based on their political preference.” JSA117a.
2 In particular, it is designed to address this Court’s concern with entrenchment, which is itself easily discernible, completely aligned as it is with the values of the Framers, the text and structure of the Constitution, and centuries of this Court’s constitutional case law. See Section II, infra.

9
The second prong of appellees’ standard is discriminatory effect: whether a plan exhibits a partisan imbalance that is both “sizable” and “likely to persist throughout the decennial period.” Appellees’ Br. 2 (quotation omitted). In other words, the effect prong helps courts determine whether the party controlling redistricting has actually succeeded in entrenching itself.
The third and final prong of appellees’ standard is justification: whether the plan’s partisan effect can be explained “by the legitimate state prerogatives and neutral factors that are implicated in the districting process.” Id. at 2-3 (quotation omitted). The justification element of appellees’ standard ensures that maps will “not be struck down if their partisan imbalances can be explained by neutral factors,” rather than invidious motives. Id. at 43.
So defined and limited, appellees’ standard will not permit courts to interfere in simply any redistricting processes. Rather, it allows judicial intervention only where there is credible direct and circumstantial evidence that the state intentionally, effectively, and without adequate justification entrenches a majority for one political party at the expense of other parties.
Appellees’ standard is also judicially manageable. Indeed, each of the standard’s three prongs can be adjudicated based on readily observable and measurable evidence that courts regularly consider in other contexts.
Discriminatory intent, this Court has recognized, can be established where, as here, “voluminous material ‘evidenced an intentional effort … to disad-

10
vantage Democratic voters.’” Id. at 44 (quoting Davis v. Bandemer, 478 U.S. 109, 116, 127 (1986) (plurality op.)); cf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (finding of “invidious discriminatory purpose” can be based on “such circumstantial and direct evidence of intent as may be available”). In LULAC, for example, “Justice Kennedy had little trouble concluding that ‘[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority.’” Appellees’ Br. 44 (quoting 548 U.S. at 417).
Nor will courts have difficulty analyzing the effect prong of appellees’ standard. As appellees explain, “the magnitude of a plan’s partisan skew may be demonstrated through election results as well as measures of partisan asymmetry like partisan bias and the efficiency gap,” and the durability “of a plan’s skew, in turn, may be shown through … sensitivity testing that both sides’ experts endorsed” in this case. Id. at 33 (citing JSA149a, 176a).3 These measures of partisan asymmetry are “widely accepted,” and their results “are rarely contested.” Id. at 46.
The standard’s justification prong is likewise judicially manageable. Indeed, it “is drawn verbatim from the Court’s one person, one vote cases,” where
3 Social scientists have developed a variety of widely accepted tools to gauge partisan asymmetry in electoral maps. These tools include, but are not limited to, the efficiency gap metric that appellees deployed in the proceedings below. See, e.g., Br. of Bernard Grofman & Ronald Keith Gaddie 26-31; Br. of Heather K. Gerken, et al., 18-21.

11
it has been used “for more than five decades” to “separate plans where large population deviations are justified by legitimate factors from maps where malapportionment cannot be properly explained.” Id. at 45 (citing Brown v. Thomson, 462 U.S. 835, 843 (1983)).
In short, appellees’ proposed standard is easily administrable, and is no different in kind than legal standards courts routinely employ in other contexts. Moreover, as shown in the next section, two easily identified criteria can help supplement and guide courts’ application of this standard, training their focus even more narrowly on a limited subset of cases involving the worst kinds of politically biased redistricting.
B. Two Straightforward Criteria—SingleParty Control Of Redistricting, And A Recent History Of Competitive Statewide Elections—Are Strongly Correlated With Intentional, Extreme, And Durable Partisan Bias, And Provide Useful Evidence For Assessing And Limiting PartisanGerrymandering Claims
There are two straightforward, objective criteria that are highly correlated with extreme, intentional, and durable partisan gerrymanders: (i) single-party control of the redistricting process, and (ii) a recent history of competitive statewide elections. See Anthony J. McGann, et al., Gerrymandering in America 148, 150, 157-58, 173-74 (2016). These criteria are intuitive indicators that a party has the motive and opportunity to successfully engage in an extreme partisan gerrymander, and empirical data confirm

12
that they in fact correlate very strongly with unconstitutional state action. Using these indicia to help evaluate partisan-gerrymandering challenges will not only help courts more easily identify potentially problematic redistricting processes, however. It will also help both courts and prospective litigants narrow their focus to the most biased, constitutionally offensive maps, leaving the vast majority of redistricting processes untouched.
1. The first factor—single-party control—is a logical precondition for a party to engage in an extreme partisan gerrymander. The incentive to excessively gerrymander districts means little if a party lacks the means to actually do so. See id. at 147. Legislative majorities are more likely to attempt a severe seat-maximizing gerrymander, and more likely to succeed, when a single party controls the process. See id. at 147-48; cf. Michael P. McDonald, A Comparative Analysis of Redistricting Institutions in the United States, 2001-02, 4 State Pol. & Pol’y Q. 371, 377 (2004) (explaining that “[w]hen there is unified party control of state government, or when one party has a veto-proof majority in the state legislature, the process is streamlined and a plan is usually adopted quickly”). Similarly, when a single party completely controls the process, there is little or no opportunity for the minority party to influence the outcome.
The second criterion—a recent history of close statewide elections—also correlates with extreme gerrymanders. See McGann, supra, at 148-49. Close competition provides powerful incentive—and opportunity—for a party to undertake a severe, enduring gerrymander. See id. Absent gerrymandering, the normal ebb and flow of politics in a closely divided

13
state would likely see power shift between the parties over the course of a decade. This is because highly competitive states with closely fought elections also tend to have a fairly, if not perfectly, even geographic distribution of partisans across much of the state, making it unlikely—absent deliberate intervention—that one party or another would have a lopsided and durable majority. See, e.g., Presidential Election Results, N.Y. Times (Aug. 9, 2017), https://www.nytimes.com/elections/results/president (displaying county-level returns for 2016 presidential election). This relatively even geographic spread of partisans produces many precincts that are closely split between the parties, and districts drawn without careful attention to how individual precincts perform would be susceptible to the same kind of competition seen at the statewide level. On the other hand, strategically joining precincts together can help a majority party engineer and entrench an advantage.
By contrast, in overwhelmingly Republican or Democratic states, there is no need for the dominant party to surgically draw districts in order to establish and entrench its majority: Districts in these states will naturally favor the dominant party regardless of whether the lines are drawn with the goal of entrenchment or any degree of care. See, e.g., McGann, supra, at 147 (explaining that “[w]hen a party is overwhelmingly popular in terms of federal elections in a state, adopting a biased plan brings no benefit and may even be counterproductive”). Consequently, while it might be possible for the dominant party in states like these to contort maps to capture an additional seat or two, it will be geo-

14
graphically challenging and the added effort produces comparatively low marginal benefits. Id. at 14750.
2. Empirical data confirm those intuitions. To identify the markers of extreme partisan gerrymandering and to determine its magnitude, the Brennan Center studied congressional election results from this decade’s races to assess the extent and the durability of “partisan bias”—the degree of systematic advantage one party receives over another in turning votes into seats. Laura Royden & Michael Li, Brennan Ctr. for Justice, Extreme Maps 1, 3 (2017).4 According to this analysis, just seven states account for almost all of the bias in this decade’s congressional maps. Id. at 1, 2, 14. And, importantly here, the most biased districting maps of this decade, in both Republican- and Democrat-controlled states, share the two objective features discussed above. Id. at 1, 2, 6, 9, 15.
These findings confirm the intuition that singleparty control is virtually a precondition for there to be extreme partisan bias. See id. at 15.5 While this case involves a gerrymander by Republicans, partisan gerrymandering is not a one-party problem. Id. at 2, 6, 9, 25, 28. Indeed, the congressional maps in
4 https://www.brennancenter.org/sites/default/files/ publications/Extreme%20Maps%205.16_0.pdf.
5 To be sure, there may be instances where a political party has the power to block a map that is bad for the party but chooses not to do so for one political consideration or another. But those circumstances are, unsurprisingly, exceedingly rare. Whether they also are constitutionally problematic is not before the Court in this case.

15
Maryland and Massachusetts exhibited meaningful partisan bias under Democratic control. Id. at 6, 9. The existence of large levels of bias in states where either Republicans or Democrats had sole control of the congressional redistricting process strongly suggests that much of that bias stems from deliberate manipulation of maps. Id. at 8. By contrast, maps drawn by commissions, courts, and split-control state governments exhibited much lower levels of partisan bias. Indeed, such states had an efficiency gap skew of well under one seat in all three elections since 2012. Id. at 6-8. And none had high levels of bias persisting across all three of the elections since the 2011 round of redistricting under multiple measures of such bias. Id. at 2, 8, 23-24. This strongly suggests that the maps’ partisan bias in sole-control states is not happenstance, but rather the result of deliberate effort. Id. at 8.
The data confirm that a state’s recent history of competitiveness is also highly correlated with extreme partisan gerrymandering. All of the most biased maps are in states with a recent history of closely contested statewide elections, or—in the case of Texas—a closely divided state legislature as recently as 2010. Id. at 2, 14. Partisan bias was likewise more durable in such states across the three elections studied. See id. at 22, 25, 28.
These conclusions are supported by studies of the maps of the current redistricting cycle that were conducted with smaller data sets over a more limited time span. See McGann, supra, at 57, 158 (analyzing 2012 congressional electoral returns under one measure of partisan bias). They are also supported by prior studies examining the links between control

16
over redistricting and the partisan performance of the resulting maps. Cf. McDonald, supra, at 388 (“When one party controlled the 2001-02 redistricting process … that party usually produced a redistricting plan favoring itself.”); Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 Am. Pol. Sci. Rev. 541, 543 (1994) (concluding based on an analysis of statelegislative election results from 1968 to 1988 that “on average, redistricting favors the party that draws the lines more than if the other party were to draw the lines,” and that “the effect is substantial and fades only very gradually over the following 10 years”).
3. The fact that these two factors correlate very strongly with extreme partisan gerrymandering alleviates lingering concerns that claims of unconstitutional partisan gerrymandering are simply too hard to adjudicate. These two criteria are easily measured and helpful guideposts for courts. The first factor is objective and readily identifiable—either a single party controls the districting process, or not. The second factor likewise can be demonstrated in a variety of straightforward ways, such as a recent string of closely contested races for statewide elected offices or close parity in registration throughout much of the state. Cf. Vill. of Arlington Heights, 429 U.S. at 267 (“The historical background of the decision is one evidentiary source [that might] reveal[] a series of official actions taken for invidious purposes.”). Courts thus can and should use these two criteria to guide their assessment of the parties’ evidence on the three prongs of appellees’ standard—making that standard all the more judicially manageable. If

17
the factors are present, trial courts can confidently be skeptical of the defendants’ evidence on all three prongs of the analysis. If one or both factors are absent, judicial intervention is far less likely to be appropriate. These two factors, in other words, offer precisely the type of additional, objective criteria this Court has sought to guide courts’ partisan gerrymandering inquiries. See, e.g., Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (seeking “rules to limit and confine judicial intervention”); id. at 343 (Souter, J., dissenting) (“the issue is one of how much is too much [partisanship] ... [and] the Court’s job must be to identify clues, as objective as we can make them, indicating that partisan competition has reached an extremity of unfairness”).
The criteria are likewise practically connected to the three-part analysis appellees propose. The intent prong is far more likely to be satisfied when these criteria exist because a governing majority is far more likely to have the motive to entrench itself to an excessive degree if it has complete control over the redistricting process and knows that it has an unusual opportunity to protect itself in future, otherwise-competitive elections. A governing majority in an otherwise competitive state is also significantly more likely to achieve this result, thus satisfying the effects part of the test. And when a state that should be competitive but happens to be controlled by one party at redistricting time draws a map that entrenches that party’s control into the future, the state is significantly less likely to be able to establish a plausible neutral justification for that effort.
4. These two criteria will not only aid courts in applying the three parts of appellees’ standard, but

18
they will also serve as an objective metric limiting judicial intervention to only those states where partisan gerrymandering causes the most serious antidemocratic problems. Indeed, contrary to the protestations from appellants and their amici that recognizing a partisan-gerrymandering cause of action would license “unprecedented levels of federal intrusion” into the country’s maps by a “virtually limitless universe of plaintiffs,” these indicia would train courts’ focus on at most a small subset of all maps. See, e.g., Br. of Wis. State Senate 9-10. In the current congressional redistricting cycle, sixteen maps were drawn under single-party control. Of those, fewer than ten are generally regarded as competitive states. An extreme partisan-gerrymandering challenge brought in the other forty states would likely be unmeritorious.
This is not to say that these are the only relevant metrics that courts should consider in determining whether an unconstitutional partisan gerrymander has occurred. Other types of activities that are both readily identifiable and easily distinguished from “normal politics” may also be helpful for flagging extreme gerrymanders meriting closer judicial scrutiny. For example, where redistricting is conducted by the majority party’s leadership in secret, the maps are drawn quickly, the governing party changes redistricting rules (including by rolling back oversight mechanisms), and/or there is an unusually large amount of outside spending on the mapmaking process, courts’ suspicions that there had been an unlawful partisan gerrymander would rightly be heightened. Cf. Vill. of Arlington Heights, 429 U.S. at 267-68 (recognizing that “[t]he specific sequence of

19
events leading up [to a] challenged decision,” “[d]epartures from the normal procedural sequence,” and “[t]he legislative or administrative history,” among other things, could be relied upon to show improper purpose). These factors, too, are reliable indicators of foul play, and are all means of identifying deviations from the normal political processes.
5. In addition to helping courts, these factors also provide meaningful, ex ante guidance to prospective plaintiffs. Single-party control and statewide competitiveness refer to basic facts of the political life of a state, and they are no more difficult for plaintiffs to assess than for judges. By strongly signaling the facial validity of a claim, the indicia empower prospective plaintiffs to assess the viability of their claims realistically and thereby prevent potentially frivolous litigation.
In short, single-party control is a prerequisite for, and historical-competitiveness is at least very highly probative of, an unconstitutional partisan gerrymander. When these two criteria are satisfied, and especially when combined with the other types of evidence just described, a court need not be concerned that it is intruding into ordinary political processes by invalidating a biased plan. Likewise, reliance on these criteria can greatly reduce the number of maps that could be reasonably subject to constitutional challenge.
C. Wisconsin’s Map Is Plainly Unconstitutional
The facts of this case confirm that appellees’ standard—especially when considered in conjunction with the various criteria described above—is well-

20
suited to weed out unconstitutional partisan gerrymandering, without drawing courts into the ordinary political thicket. Wisconsin has long been a closely divided swing state. In 2010, for the first time in over forty years, the voters of Wisconsin elected a Republican majority in the Assembly, a Republican majority in the Senate, and a Republican Governor. Appellees’ Br. 5; JSA12a. This unusual monopoly over state government happened to occur just prior to the decennial redistricting cycle, providing the Republican leadership a unique incentive, and rare opportunity, to maximize and lock in their control.
Rather than follow normal districting practices, the Republican leadership seized the opportunity to entrench itself, devising and carrying out a plan to win as many seats as possible and to extend their temporary majority control through at least the decennial period. Appellees’ Br. 4-10; JSA12a-29a, 126a-140a. The leadership, moreover, executed that plan in secret—without the input of Democrats, or even that of rank-and-file Republican legislators. Appellees’ Br. 5; JSA12a-29a. And, as the court below put it, “[i]t is clear that the drafters got what they intended to get,” JSA146a—“secur[ing] for Republicans a lasting Assembly majority” by “allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%,” id. at 145a; see also Appellees’ Br. 10-17; JSA145a166a. While the federal courts should be hesitant to interfere with ordinary inter-party politics, what is at issue here—and what is likely to be at issue in any case where a temporarily governing majority seeks to entrench itself in a perennially competitive

21
state—is not normal, but extraordinary and deeply anti-democratic.
II.EXTREME PARTISAN GERRYMANDERING OFFENDS FUNDAMENTAL CONSTITUTIONAL PRINCIPLES, PLACING IT OUTSIDE OF NORMAL AND ACCEPTABLE LEGISLATIVE CONDUCT AND WARRANTING JUDICIAL INTERVENTION
A partisan-gerrymandering cause of action as described above does not simply help courts target the limited set of extreme gerrymanders that may arise in a redistricting cycle. It also allows courts to target cases that offend key constitutional principles.
Extreme partisan gerrymanders, such as the one that occurred in Wisconsin, violate three related constitutional norms, all of which lie at the heart of our constitutional democracy: government accountability, legislative representativeness, and neutral treatment of political expression and association. As a result, extreme partisan gerrymandering stands far outside the bounds of legitimate democratic governance. These gerrymanders thus warrant judicial intervention to vindicate core constitutional principles and rights.
A. Extreme Partisan Gerrymandering Undermines Legislatures’ Accountability To The People
As this Court explained in Reynolds v. Sims, 377 U.S. 533 (1964), the “right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Id. at 555. Our “[d]emocracy … is premised on responsiveness,”

22
McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring), and the franchise is meant to ensure that representative government is comprised of “bodies which are collectively responsive to the popular will,” Reynolds, 377 U.S. at 555. That responsiveness is why the Court has long placed faith in and been deferential to the “‘pull, haul, and trade’” of politics as a means of ensuring electoral accountability. See, e.g., LULAC, 548 U.S. at 507 (Roberts, C.J., concurring in part and dissenting in part) (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)).
Extreme partisan gerrymandering, however, runs contrary to this Court’s precedents and the underlying constitutional values they reflect. By locking in legislative majorities that can withstand even severe swings in public sentiment, extreme partisan gerrymanders undercut the mechanisms of accountability, rendering the “pull, haul, and trade” of politics futile and judicial intervention essential.
1. Numerous constitutional provisions reflect the foundational importance of government responsiveness to the electorate. For example, the Constitution requires reallocation of House seats every ten years, U.S. Const., art. I, § 2, cl. 3, because the House was meant to be a “numerous and changeable body” whose membership would reflect shifting popular will, Federalist No. 63 (James Madison). The Constitution also mandates that members of both the House and Senate be periodically re-elected by “the people,” and imposes time limits on their terms in office. U.S. Const., art. I, §§ 2, 3; see also id., art. I, § 2, cl. 3 (providing for decennial enumeration and establishing minimum population of House districts); id., art. I, § 2, cl. 4 (requiring House vacan-

23
cies to be filled by elections, not appointments); Federalist No. 51 (James Madison) (to ensure dependence of government on the people, which is “the primary control on the government,” the Constitution “divide[s] the legislature into different branches; and … render[s] them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit”).
Further, the Constitution “denie[s] Congress the power to impose additional qualifications upon its members … for fear that congressmen would endeavor to entrench themselves in office.” Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Geo. L.J. 491, 498 n.45 (1997). It likewise disallows state-imposed qualifications on legislators, because that, too, would violate the “basic principle” that “the right to choose representatives belongs not to the States, but to the people.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 820 (1995). As Madison put it, “republican liberty seems to demand ... not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people.” Federalist No. 37 (James Madison).6
6 See also Joel Francis Paschal, The House of Representatives: ‘Grand Depository of the Democratic Principle’?, 17 L. & Contemp. Problems 276, 281 (1952) (describing 1842 statute mandating use of single-member districts that was intended to prevent states from, through the general-ticket system, “convert[ing] the House … to an assemblage of the states and not the people as originally intended”); G. Bingham Powell, Jr., Elections As Instruments of Democracy 47 (2000) (“The citi-

24
The Constitution, moreover, “guarantee[s] to every State in [the] Union a Republican Form of Government.” U.S. Const., art. IV, § 4. As Hamilton put it: “The true principle of a republic is[] that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked.” Powell v. McCormack, 395 U.S. 486, 540-41 (1969) (quotation omitted). The guarantee of a republican form of government implies that elected officials must remain responsive to the people, and cannot be allowed to insulate themselves or their allies from electoral challenge. Cf. Federalist No. 10 (James Madison) (“To secure the public good and private rights against the danger of … a [majority] faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”).
The Elections Clause likewise was “intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate.” Ariz. State Legislature, 135 S. Ct. at 2672. “As Madison urged, without the Elections Clause, ‘[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.’” Id. (quoting II Records of the Federal Convention 241 (M. Farrand rev. 1966)) (alteration in original). South Carolina’s delegates, in fact, sought “to strike out the federal [Elections
zens’ ability to throw the rascals out” is “fundamental to … representative democracy.”).

25
Clause] power … because South Carolina’s coastal elite had malapportioned their legislature, and wanted to retain the ability to do so.” Id. In response, “Timothy Pickering of Massachusetts similarly urged that the Clause was necessary because the State governments may abuse their power, and regulate ... elections in such manner as would be highly inconvenient to the people.” Id. (quotation omitted). He also aptly described the Clause as a way to “ensure to the people their rights of election.” Id. (quotation omitted).
2. This Court’s precedents similarly reflect the foundational importance of government’s responsiveness to the people. The Court’s equal protection jurisprudence has long recognized that judicial intervention into legislative action is particularly necessary when legislatures are likely to become unresponsive. As the Court explained in United States v. Carolene Products, Co., 304 U.S. 144 (1938), for example, “more exacting judicial scrutiny” is fitting for “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” Id. at 152 n.4. That is, judicial intervention is particularly justified when government action makes it difficult for voters to translate their desired outcomes into legislative results.
The value of government responsiveness also is reflected in this Court’s one person, one vote jurisprudence. Before Reynolds held that “vote-diluting discrimination … accomplished through the device of districts containing widely varied numbers of inhabitants” is unconstitutional, 377 U.S. at 563, extreme disparities in ratios of voters to representatives

26
abounded. Now, however, the Court’s one person, one vote jurisprudence ensures that people have a right not merely to vote, but to “an equally effective voice in” elections. Id. at 565; see also Gordon E. Baker, The Unfinished Reapportionment Revolution, in Political Gerrymandering and the Courts 11, 11 (Bernard Grofman ed., 1990); cf. Rogers v. Lodge, 458 U.S. 613, 625 (1993) (one constitutional harm of racial gerrymandering is that it allows legislators to be “unresponsive and insensitive to the needs of the black community”).
3. By producing legislative entrenchment, extreme partisan gerrymanders restrict the electoral accountability that Madison and other Framers sought to create and that this Court’s precedents aim to protect. Severe partisan gerrymanders call out for judicial intervention, because without judicial review, the serious accountability problems biased maps produce will endure. Cf. Federalist No. 10 (James Madison) (to prevent abuses by a majority faction, the majority “must be rendered … unable to concert and carry into effect schemes of oppression”). Extreme partisan gerrymanders create “locked-in” or “safe” seats, and legislators “elected from such safe districts need not worry much about the possibility of shifting majorities” and “have little reason to be responsive to the political minorities within their district.” LULAC, 548 U.S. at 470-71 (Stevens, J., concurring in part and dissenting in part); see also Reynolds, 377 U.S. at 570, 576 (decrying “a minority strangle hold on the State Legislature” and “frustration of the majority will”); Baker v. Carr, 369 U.S. 186, 258-59 (1962) (Clark, J., concurring) (noting lack of “practical opportunities” for the “majority of

27
the people” to correct malapportionment at the polls). We have “a system of government that relies upon the ebbs and flows of politics to ‘clean out the rascals.’” U.S. Trust Co. v. New Jersey, 431 U.S. 1, 45 (1977) (Brennan, J., dissenting); see also Daniel R. Ortiz, Federalism, Reapportionment, and Incumbency: Leading the Legislature to Police Itself, 4 J.L. & Pol. 653, 675 (1988) (representatives in gerrymandered districts can “pursue their self-interests at the expense of their constituents’ interests with less fear of being unseated”). But a legislature essentially held hostage by one party or the other is not the responsive body the Constitution envisions. Judicial intervention is not merely warranted, but necessary to preclude that unconstitutional result.
B. Extreme Partisan Gerrymandering Creates Legislatures That Are Not Representative Of The Electorate
Extreme partisan gerrymandering also locks in a legislative delegation that comes nowhere close to reflecting the partisan diversity of the state’s populace, thereby undermining another core value undergirding our democratic system of government: legislative representativeness. Representativeness is critically important not only in and of itself, but also because it guarantees that the legislature will be accountable to all of the people it purports to represent.
1. Since the time of the Revolution, it was understood that a proper legislative assembly should closely resemble the society from which it was drawn. See Eric Nelson, The Royalist Revolution: Monarchy and the American Founding 71-75 (2014). The

28
Framers’ views on representation reflected their rejection of the political values of the British system of government, particularly the concept of “virtual representation.” For the British, equality of actual representation was of no concern because, the theory went, “the English people … were essentially a unitary homogenous order with a fundamental common interest.” Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 174 (1969).
The American founding generation, by contrast, understood the necessity of actually representative government, and the corollary that government works best when it is closest to the people themselves. See Federalist Nos. 59, 61 (Alexander Hamilton). When it came time to draft the Nation’s new Constitution, ensuring real representation was among the Framers’ primary goals. See Robert B. McKay, Reapportionment: The Law and Politics of Equal Representation 16 (1965). For them, “[a] properly designed constitutional system would match representation and policymaking authority.” Keith E. Whittington, The Federalist Society’s Article I Initiative: The Place of Congress in the Constitutional Order, 40 Harv. J.L. & Pub. Pol’y 573, 579 (quoting James Madison, Notes of the Debate in the Federal Convention of 1787, at 39 (1987)); see also Federalist No. 55 (James Madison) (legislature should have sympathy “with the feelings of the mass of the people”).
Based upon these principles, there was protracted debate over how to allocate congressional representation among states and, after that issue was resolved, over the proper size of congressional districts. James Madison called this question the most “wor-

29
thy of attention” in the entire Constitution. Federalist No. 55 (James Madison). In the end, with “full and equal” representation as the common goal, the Framers all came to the same conclusion: for the House of Representatives, “[n]umbers … ‘are the only proper scale of representation.’” Wesberry v. Sanders, 376 U.S. 1, 15 (1964) (quoting Federalist No. 54 (James Madison)). The Framers thus sought to make the House not only accountable to, but also representative of, the people. See, e.g., U.S. Term Limits, 514 U.S. at 821 (“the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly … by the people”); see also Cook v. Gralike, 531 U.S. 510, 528 (2001) (Kennedy, J., concurring) (“[F]reedom is most secure if the people themselves, not the States as intermediaries, hold their federal legislators to account for the conduct of their office.”).7
Many of the Founders emphasized that state legislatures, too, should be representative of the people they governed. James Wilson, for example, wrote that “[i]n [state legislatures] there ought to be a representation sufficient to declare the situation of every county, town and district, and if of every individ-
7 These concerns were echoed when Congress passed the Apportionment Act of 1842, which ended the unrepresentative practice of at-large congressional elections. As Senator William Graham of North Carolina explained, the law’s requirement of single-member districts would guarantee the “personal and intimate acquaintance between the representative and constituent which is the very essence of true representation.” Cong. Globe, 36th Cong., 2d Sess. app. 749 (1842).

30
ual, so much the better, because their legislative powers extend to the particular interest and convenience of each[.]” III Records of the Federal Convention of 1787, at 160 (M. Farrand ed. 1911) (1937 revised ed.); see also Evenwel v. Abbott, 136 S. Ct. 1120, 1124, 1130 (2016) (explaining Court’s jurisprudence requiring “jurisdictions [to] design … statelegislative districts with equal populations, and … regularly reapportion districts to prevent malapportionment,” and that “the constitutional scheme for congressional apportionment rests in part on the same representational concerns that exist regarding state and local legislative districting”); Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 749 (1964) (Stewart, J., dissenting) (arguing for “effective representation in the State’s legislature ... of the various groups and interests making up the electorate”).
The Framers ultimately sought in multiple constitutional provisions to ensure government representativeness and keep government close to the people it represented. Article I, § 2, cl. 3 of the Constitution, for example, requires reallocation of House seats every ten years. Such periodic reallocation, as explained, helps ensure government responsiveness, see supra at 22-23—but it also fosters legislative representativeness by allowing maps to “take into account population shifts and growth,” Reynolds, 377 U.S. at 583. Indeed, it especially would have done so in a fast-changing, highly mobile society like that of the early Republic.
Similarly, the Constitution mandates that legislators be regularly reelected. See U.S. Const., art. I, §§ 2, 3. This requirement, too, ensures not just responsiveness (supra at 23), but also representative-

31
ness: Frequent elections allow legislative bodies to reflect population changes, and thus remain representative of the electorate over time. See, e.g., Neil Gorsuch & Michael Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State-Imposed Term Limitations, 20 Hofstra L. Rev. 341, 348 (1991).
2. This Court has likewise repeatedly emphasized the constitutional value of ensuring legislative representativeness. For example, in Reynolds, 377 U.S. at 562, 565-66, the Court emphasized that “the basic aim of legislative apportionment” is “the achieving of fair and effective representation for all citizens.” The Court explained that “[l]egislators represent people, not trees or acres. ... As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.” Id. at 562.
In Arizona State Legislature, 135 S. Ct. at 2672 n.24 (quotation omitted), the Court reiterated that the “fundamental principle of our representative democracy” is “that the people should choose whom they please to govern them.” As the Court explained, “Our Declaration of Independence … drew from Locke in stating: ‘Governments are instituted among Men, deriving their just powers from the consent of the governed.’ And our fundamental instrument of government derives its authority from ‘We the People.’” Id. at 2675.

32
Likewise, in Evenwel, 136 S. Ct. at 1127-28, the Court recognized that the drafters of the Fourteenth Amendment settled on using total population for apportionment, because, for them, government was truly representative only if it accounted for—and was accountable to—all of its constituents. That is what Lincoln meant when he recommitted the reborn Nation to a “government of the people, by the people, for the people.” Reynolds, 377 U.S. at 56768. And, the Court has said, “the same representational concerns … exist regarding state and local legislative districting.” Evenwel, 136 S. Ct. at 1130.
3. Severe partisan gerrymandering undermines government representativeness. When the governing majority of the day permanently entrenches itself in power, the legislature no longer “think[s], feel[s], reason[s], [or] act[s] like” the people at large. John Adams, Thoughts on Government: Applicable to the Present State of the American Colonies; In a Letter from a Gentleman to his Friend (Apr. 1776). States that may have vibrant political cultures with diverse perspectives are left with one-note legislatures. The debates held in the state house and the policies legislators enact into law bear little resemblance to the fuller conversations among voters in homes and public spaces throughout the state. Most importantly, these legislatures lack a sufficient volume of dissenting voices to act as a check on legislative caprice, further limiting the ability of the people to hold their representatives to account.
To be sure—as appellants and their amici unrelentingly, if misguidedly, reiterate—the Constitution does not require precise proportionality of the Nation’s legislatures or that every voter be able to elect

33
the candidate of her choice. But that does not mean the opposite is true, that the legislature should bear little resemblance to the polity it represents. Simply put, the Constitution does not permit legislators to structure their maps and pick their voters in any way they choose. It demands at the very least that there not be a gross disconnect between a legislature and the people it purports to represent. That kind of gross disconnect is the product of entrenchment, and tolerating it ignores our Nation’s foundational precept that “the voters should choose their representatives, not the other way around.” Ariz. State Legislature, 135 S. Ct. at 2677 (quotation omitted).
C. Extreme Partisan Gerrymanders Violate The First Amendment Rights To Political Expression And Association That Are Vital To Representative Democracy
Extreme partisan gerrymandering also transgresses crucial First Amendment limits on legislative decision-making.
1. The First Amendment requires the government to remain neutral regarding its citizens’ ideological affiliations. “[A]bove all else,” the Court has held, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.” Police Dept. of City of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (emphasis added).
That neutrality principle has particular force in the context of elections, as the political acts of voting and associating to advance political candidates are quintessential exercises of First Amendment rights. See, e.g., Burdick v. Takushi, 504 U.S. 428, 433-34

34
(1992) (noting regulation of voting burdens First Amendment rights); Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (recognizing rights of voters “to cast their votes effectively” and “to associate for the advancement of political beliefs”). These two rights are related, allowing individuals to band together for purposes of advancing their candidates through the ballot. See Guy-Uriel Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Calif. L. Rev. 1209, 1248-49 (2003) (citing Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 296 (1981); Kusper v. Pontikes, 414 U.S. 51, 57 (1973)).
2. Extreme partisan gerrymandering—the government’s intentional burdening of the efficacy of citizens’ votes “because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views,” Vieth, 541 U.S. at 314 (Kennedy, J., concurring) (emphasis added)—is plainly irreconcilable with those First Amendment principles. It is governmental action to disadvantage people “on account of their political [expression or] association” which, this Court has recognized, contravenes the First Amendment. O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712, 717 (1996); see also, e.g., Elrod v. Burns, 427 U.S. 347, 356 (1976) (political patronage in public employment unlawful both because it burdens political belief and because it enlists government authority for partisan purposes, thereby “tip[ping] the electoral process in favor of the incumbent party”); Carrington v. Rash, 380 U.S. 89, 94 (1965) (holding Texas could not disqualify from voting in state elections members of the U.S.

35
military who moved to the state while in active service, because “[f]encing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible” (quotation omitted)).
The First Amendment harms caused by extreme partisan gerrymanders are even more damaging because they undercut legislative accountability and representativeness. By selectively impacting the expressive and associational rights of one group, severe partisan gerrymandering limits legislators’ “responsive[ness] to the political minorities within their district,” locking out of political processes the party that is in the minority when the maps are drawn (much like racial minorities are locked out as a result of a racial gerrymander). LULAC, 548 U.S. at 470-71 (Stevens, J., concurring in part and dissenting in part); see also McCutcheon v. FEC, 134 S. Ct. 1434, 1441-42 (2014) (plurality op.) (“those who govern should be the last people to help decide who should govern”); id. at 1462 (“responsiveness” to constituent views “is key to the very concept of self-governance through elected officials”). And by undermining voters’ foundational right to associate to further their political beliefs through the “pull, haul, and trade” of ordinary politics, extreme partisan gerrymandering negates their ability to choose a government that represents their diverse needs and interests. See, e.g., Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986); Citizens Against Rent Control, 454 U.S. at 296; Kusper, 414 U.S. at 57.
Taken together, the constitutional harms generated by “severe partisan gerrymanders” explain why such gerrymanders are “incompatib[le] … with dem-

36
ocratic principles” and must be held unlawful by this Court. Vieth, 541 U.S. at 292 (Kennedy, J., concurring). Severe partisan gerrymanders are intentional actions to reduce the responsiveness and representativeness of the legislature with respect to a large segment of constituents, specifically because of those constituents’ chosen political affiliation. Such actions undermine principles of popular sovereignty, governmental accountability, and equal treatment that are embodied in the First and Fourteenth Amendments and lie at the heart of our Constitution and our system of democracy.
***
Recognizing that extreme partisan gerrymanders are irreconcilable with the U.S. Constitution, this Court has long sought a standard courts could use to provide a reliable and limited answer to the question: “[h]ow much political motivation and effect is too much?” Id. at 297 (plurality op.). Appellees have put forth just such a standard. Appellees’ standard—particularly when supplemented with the evidentiary indicia discussed herein—effectively identifies those rare maps that are intended to and actually do durably entrench a political party in power. The conditions that generate those maps are unusual and easily identified. Those maps cause the political system to become unresponsive to a particular segment of voters on the basis of their political affiliation. Those maps make the legislature grossly unrepresentative of the state’s populace as a whole. And those maps impair voters’ First Amendment rights to equal political expression and association. Those maps, in other words, subvert our democratic system of government, all while stripping voters of

37

their ability to protect themselves through the electoral process. The Court should adopt appellees’ standard and hold Wisconsin’s partisan gerrymandering unconstitutional here.
CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

WENDY R. WEISER MICHAEL C. LI DANIEL I. WEINER BRENT FERGUSON THOMAS P. WOLF THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW 120 Broadway, Suite 1750 New York, N.Y. 10271 (646) 292-8310

ANTON METLITSKY (Counsel of Record)
ametlitsky@omm.com O’MELVENY & MYERS LLP Times Square Tower 7 Times Square New York, N.Y. 10036 (212) 326-2000
BRADLEY N. GARCIA SAMANTHA M. GOLDSTEIN O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 (202) 383-5300

September 5, 2017

 
 No. 16-1161 IN THE

BEVERLY R. GILL, et al., v.

Appellants,

WILLIAM WHITFORD, et al.

Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF OF AMICI CURIAE LAW PROFESSORS IN SUPPORT OF APPELLEES
Pamela S. Karlan Counsel of Record
Jeffrey L. Fisher David T. Goldberg STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305 (650) 725-4851 karlan@stanford.edu

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ ii
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT................................................................ 4
I. The absence of a judicially enforced constraint on partisan gerrymandering has not prevented, and will not prevent, federal courts from facing decades of redistricting litigation driven by partisan concerns ................. 6
II. The absence of a straightforward mechanism for adjudicating claims of unconstitutional partisan gerrymandering has led to troubling distortions of other constraints on redistricting................................ 20
A. The absence of a straightforward partisan gerrymandering claim has distorted one-person, one-vote ..................... 20
B. The absence of a straightforward partisan gerrymandering claim has distorted doctrines designed to address racial discrimination in redistricting........... 27
III. Recognizing a judicially enforceable claim against partisan gerrymandering will not unjustifiably constrain states' redistricting choices.................................................................. 31
CONCLUSION .......................................................... 34

111
Connor v. Finch, 431 U.S. 407 (1977)................................................ 26
Cooper v. Harris, 137 S. Ct. 1455 (2017).................................... passim
Cox v. Larios, 542 U.S. 947 (2004) .......................................... 13, 23
Davis v. Bandemer, 478 U.S. 109 (1986) ............................................ 5, 14
Easley v. Cromartie, 532 U.S.234 (2001) ................................................. 16
Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ............................................. 8
Fortson v. Dorsey, 379 U.S. 433 (1965) ...................................... 4, 20, 28
Gaffney v. Cummings, 412 U.S 735 (1973) ................................... 5, 7, 20, 33
Georgia v. Ashcroft, 539 U.S. 461 (2003)............................................... 29
Harris v. Ariz. Indep. Redistricting Comm'n, 136 S. Ct. 1301 (2016)............................................ 23
Hulme v. Madison County, 188 F. Supp. 2d 1041 (S.D. Ill. 2001) .................... 23
Hunt v. Cromartie, 526 U.S. 541 (1999) ................................................ 15
Karcher v. Daggett, 462 U.S. 725 (1983) ................................. 7, 8, 21, 26
Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) (threejudge court), summarily aff'd, 542 U.S. 947 (2004) .......................................................... 12, 13, 23

lV
Lucas v. Forty-Fourth Gen. Assembly,
377 U.S. 713 (1964) ................................................ 20
LULAC v. Perry, 549 U.S. 399 (2006) .............................. 17, 18, 32,34
Mo. State Conference of the NAACP v. Ferguson-Florissant Sch. Dist., 201 F. Supp. 3d 1006 (E.D. Mo. 2016)................... 30
Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978), cert. denied, 446 U.S. 951 (1980) ....................................................... 21
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.1, 551 U.S. 701 (2007) ................................................ 28
Patino v. City ofPasadena, 230 F. Supp. 3d 667 (S.D. Tex. 2017), stay denied pending appeal, 677 F. App'x 950 (5th Cir. 2017) ................................................................ 30
Perez v. Abbott, SA-11-CV-360, 2017 WL 1450121 (W.D. Tex. Apr. 20, 2017) (three-judge court) ................... 23, 24
Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) (threejudge court), summarily afl'd, 506 U.S. 801 (1992) ...................................................................... 14
Radogno v. Ill. State Bd. ofElections, 2011 WL 5025251 (N.D. Ill. 2011) (three-judge court) ...................................................................... 19
Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016).................................. 23
Reynolds v. Sims, 377 U.S. 533 (1964) ................................ 7, 20, 21, 25

v
Rogers v. Lodge, 458 U.S. 613 (1982)................................................ 10
Thornburg v. Gingles, 478 U.S. 30 (1986).................................................. 10
Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. 2004) (threejudge court), vacated and remanded in light of Vieth v. Jubelirer, 543 U.S. 941 (2004) ........... 17, 29
Shaw v. Hunt, 517 U.S. 899 (1996) .......................................... 15, 27
Shaw v. Reno, 509 U.S. 630 (1993) .................................... 15, 27, 32
Tennant v. Jefferson Cty. Comm'n, 567 U.S. 758 (2012) .............................................. 7, 8
Terrazas v. Slagle, 821 F. Supp. 1162 (W.D. Tex. 1993) (threejudge court) ............................................................ 17
United States v. Hays, 515 U.S. 737 (1995) .................................................. 9
Vieth v. Jubelirer, 541 U.S. 267 (2004) ........................................ passim
Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (M.D. Pa. 2002) (threejudge court) ............................................................ 22
Vieth v. Pennsylvania, 195 F. Supp. 2d 672, 675 (M.D. Pa. 2002) (three-judge court), appeal dismissed as moot, 537 U.S. 801 (2002) ............................................ 8, 21
Vieth v. Pennsylvania, 241 F. Supp. 2d 478 (M.D. Pa. 2003) (threejudge court), affd, 541 U.S. 267 (2004) ................. 22

Vll
Pildes, Richard H., Tbe Supreme Court, 2003 Term-Foreword: Tbe Constitutionalization ofDemocratic Politics, 118 Harv. L. Rev. 28,
67 (2004)................................................................. 32

INTEREST OF AMICI CURIAE1
Amici are law professors who study legal regulation of the political process. They are among the many scholars who have spent a considerable amount of time thinking, writing, and teaching issues related to redistricting and fair representation.
Based on this expertise, and on careful review of this Court's decisions, amici argue in this brief that the Court should hold that partisan gerrymandering claims are justiciable. Amici join this brief solely on their own behalf and not as representatives of their universities. Amici are:
Samuel R. Bagenstos Frank G. Millard Professor of Law University of Michigan Law School
Richard Briffault Joseph P. Chamberlain Professor ofLegislation Columbia Law School
Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of
Law University of California, Berkeley School of Law
Henry L. Chambers, Jr. Austin E. Owen Research Scholar & Professor of Law University of Richmond School of Law
1 Pursuant to Rule 37.6, counsel for amici states that no counsel for a party authored this brief in whole or in part, and that no person other than amici or its counsel made a monetary contribution to the preparation or submission of this brief. Appellants and appellees have each filed letters of consent with the Clerk of the Court.

2
Joshua A. Douglas Robert G. Lawson & William H. Fortune Associate
Professor of Law University of Kentucky College ofLaw
Joseph Fishkin Professor of Law University of Texas, Austin Rebecca Green Professor of Practice William & Mary Law School
Michael Halberstam Independent Scholar
Michael S. Kang Thomas Simmons Professor of Law Emory University Law School
Pamela S. Karlan Kenneth and Harle Montgomery Professor of Public
Interest Law Stanford Law School
Franita Tolson Professor of Law University ofSouthern California Gould School ofLaw
SUMMARY OF ARGUMENT
The question posed by this case is not whether excessively partisan redistricting maps violate core constitutional principles. They do, and this Court has already said as much. Rather, the question is what courts should do when faced with such maps.
Notwithstanding this Court's reluctance to impose a direct judicially enforceable constraint on

3
partisanship, partisan gerrymandering claims are being litigated all the time. They simply get litigated under other causes of action, whether it is one-vote, one-person doctrine; racial gerrymandering doctrine under the Equal Protection Clause; or vote dilution doctrine under the Voting Rights Act. In the course of adjudicating these claims, courts often cannot escape the need to evaluate the partisan intent and effect of a challenged plan.
Having litigants route their complaints about partisan gerrymandering through these adjacent doctrines inevitably distorts these other areas of law. Using minor population deviations to adjudicate partisan disputes wastes judicial resources and decreases public confidence. Forcing what are fundamentally partisan disputes to be litigated as claims about race discrimination inflicts the very harm (excessive race consciousness) the Sbaw doctrine was designed to combat. And it can undermine effective enforcement of the Voting Rights Act. Worse yet, to the extent jurisdictions advance a politics-notrace defense to Sbaw claims, the lack of a justiciable partisan gerrymandering claim puts courts in the unseemly position of affirmatively upholding unconstitutional activity. Recognizing a straightforward claim for unconstitutional partisan gerrymandering would serve interests in doctrinal coherence and integrity.
Finally, recogmzmg a claim for excessive partisan gerrymandering would not strip states of their proper role in drawing legislative districts. States will still have more than enough discretion in drawing districts. But excessive partisanship is not a

4
goal that states should be permitted, or encouraged, to embrace.
ARGUMENT
There has been "time enough" to consider whether districting plans that "operate to minimize or cancel out the voting strength" of "political elements of the voting population" justify judicial intervention. Fortson v. Dorsey, 379 U.S. 433, 439 (1965). This Court has already "recognized" that excessive partisan gerrymanders "'[are incompatible] with democratic principles."' Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (plurality opinion));2 see also Gaffney v. Cummings,
2 All nine Members of the Vieth Court accepted the proposition that excessive partisan gerrymandering violates the Constitution. Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas formed the plurality whose opinion contained the statement quoted in Arizona Independent Redistricting Commission.
Justice Kennedy, concurring in the judgment, wrote that an apportionment statute drawn "so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles" would "surely" violate the Constitution. Vieth, 541 U.S. at 312.
The four dissenting Justices in Vieth not only took the position that excessive partisan gerrymanders can violate the Constitution and are justiciable, but concluded that the Pennsylvania congressional districting plan before the Court involved such a violation. Justice Stevens stated that when "the predominant motive of the legislators who designed" a district is "to discriminate against a political minority, that invidious purpose should invalidate the district." Id. at 336 (Stevens, J., dissenting). Justice Souter, joined by Justice Ginsburg, stated

5
412 U.S 735,753-54 (1973) (what is done by "those who redistrict and reapportion" to "allocate political power" cannot be "wholly exempt from judicial scrutiny" if political groups have their voting strength "invidiously minimized").
The question posed by this case is what to do about a violation of core constitutional principles. The history of litigation, both before and after this Court's decisions in Davis v. Bandemer, 478 U.S. 109 (1986), and Vieth, shows that other doctrines governing redistricting make it impossible for courts to stay out of the process. In the absence of a decision from this Court setting out how to adjudicate claims ofexcessive partisan gerrymandering as such, litigants driven by partisan concerns have been channeling into other doctrinal pigeonholes their attacks on plans that disadvantage them. And it is abundantly clear that they will continue to do so. The incentives to litigategiven the gains to be had from obtaining a politically favorable map-are simply too great.
This Court's reluctance to articulate the contours of a justiciable partisan gerrymandering claim has distorted constraints on redistricting designed to protect other interests and to solve other problems. By
that "[h]owever equal districts may be in population as a formal matter," if "unfairness" in how the votes of different groups are "minimized or maximized" is "sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality." Id. at 343 (Souter, J., dissenting). And Justice Breyer concluded that "political gerrymandering" that "entrenches a minority party in power violates basic democratic norms" and "gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution's Equal Protection Clause." Id. at 361-62 (Breyer, J., dissenting).

7
1. Federal law imposes a series of constraints on redistricting that are widely available to litigants. This includes litigants whose real disagreement with a plan centers on the "substantial political consequences" that a district plan "inevitably has and is intended to have," Gaffney v. Cummings, 412 U.S. 735, 753 (1973). Much of the time, and without regard to whether they can challenge a plan directly for being unconstitutionally partisan, there is no shortage of "displeased voter[s]" who "can file a lawsuit in federal court" that, if they win, will require redrawing a substantial part of"the entire map," Br. for Appellants 2.
First, actors upset with the partisan consequences of a particular plan may be able to challenge the plan as violating constitutional principles of one-person, one-vote articulated in Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) (required for congressional districts by Article I, section 2) and Reynolds v. Sims, 377 U.S. 533, 577 (1964) (required for state and local electoral districts by the Equal Protection Clause). Any voter who lives in an overpopulated district has standing to bring such a suit.
For congressional districts, it may be quite easy for a litigant to use one-person, one-vote to tie up a state's plan in litigation. This Court has held that, with respect to congressional districts, the Constitution requires that a state ''justify population differences between districts that could have been avoided by 'a good-faith effort to achieve absolute equality."' Tennant v. Jefferson Cty. Comm'n, 567 U.S. 758, 759 (2012) (per curiam) (quoting Karcher v. Daggett, 462 U.S. 725, 730 (1983) and Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969)). Given modern

8
districting software, plaintiffs will find it easy to show that virtually any deviation of more than a dozen or so people can be avoided. See, e.g., Vieth v. Pennsylvania, 195 F. Supp. 2d 672, 675 (M.D. Pa. 2002) (three-judge court) (although the challenged map had a deviation of only 19 persons between the largest and smallest districts, the challengers were able to draw a map "which had a minimum possible deviation-districts that differ by only one person"), appeal dismissed as moot, 537 U.S. 801 (2002). If the deviation, however small, is avoidable, then "the burden shifts to the State to 'show with some specificity' that the population differences 'were necessary to achieve some legitimate state objective."' Tennant, 567 U.S. at 760 (quoting Karcher, 462 U.S. at 741, 740). At this justification phase, reviewing courts have considerable leeway in deciding whether a particular deviation was in fact necessary or legitimate. See infra p.24.
With respect to state, county, and municipal elections, plaintiffs face a somewhat higher burden because jurisdictions have greater leeway in achieving numerical equality. Usually, jurisdictions need not justify their plan unless the plaintiffs show that the population deviation between the largest and the smallest district exceeds ten percent of the size of an ideal district. See Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016) (citing Brown v. Thomson, 462 U.S. 835, 842-43 (1983)). But faced with claims of excessive partisanship, some courts have recently begun to demand justifications for, and strike down as malapportioned, plans whose deviations fell below ten percent. See infra pp. 22-24.
No one actually can feel their vote is "debased" when congressional districts deviate from the ideal by

9
19 people. But ifthat is the only hook those injured by partisan gerrymandering can use to try to invalidate a plan, they will use it. As a realistic matter, it is far more likely-given the relatively small population deviations in most contemporary redistricting plansthat a concern other than sheer mathematical equality in district populations drives the decision to file most twenty-first century one-person, one-vote lawsuits. Quite often, that concern involves the partisan consequences of a challenged plan.
Second, it may be possible for groups or individuals upset with the partisan consequences of a particular plan to challenge the plan as an unconstitutional racial gerrymander. Any individual who "resides in a racially gerrymandered district" can bring suit to challenge that district. United States v. Hays, 515 U.S. 737, 745 (1995).
Plaintiffs in such cases must show "that race was the predominant factor motivating the legislature's decision to place a significant number ofvoters within or without a particular district." Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 797 (2017) (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)). If plaintiffs show that "racial considerations predominated over others, the design of the district must withstand strict scrutiny." Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017). The only justification this Court has so far accepted as potentially satisfYing this standard is that taking race into account to such a degree was necessary in order to comply with the Voting Rights Act. See Bethune-Hill, 137 S. Ct. at 801.
Because "racial identification is highly correlated with political affiliation" in some jurisdictions, Cooper v. Harris, 137 U.S. at 1473, when plaintiffs in those

10
jurisdictions have no way to bring a straightforward political gerrymandering claim, they face an incentive to bring racial gerrymandering claims instead. This demands they couch what are fundamentally partisan political conflicts as racial ones.
Third, it may be possible for groups or individuals upset with the partisan consequences of a particular plan to challenge the plan by claiming that the plan involves impermissible racial vote dilution. Any voter who is a member of the protected group and who lives in a part of the state where minority voting strength has allegedly been diluted may bring a racial vote dilution lawsuit.
Both the Equal Protection Clause and Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, prohibit jurisdictions from drawing districts that give minority citizens "less opportunity" than other citizens "to participate in the political processes and to elect legislators oftheir choice." "White v. Regester, 412 U.S. 755, 766 (1973). Because plaintiffs are required to show that the jurisdiction acted with a discriminatory purpose to establish a violation ofthe Equal Protection Clause, see Rogers v. Lodge, 458 U.S. 613, 616-18 (1982), plaintiffs asserting claims of racial vote dilution have generally had their claims resolved under Section 2, which does not require proof of a discriminatory purpose. See Tbornburg v. Gingles, 478 U.S. 30, 50 (1986). Plaintiffs suing under Section 2 need show only that the challenged plan has a racially discriminatory "result[]" under the "totality of circumstances." 52 U.S.C. §10301(a), (b).
Given these various potential causes of actionnot to mention state-law constraints in many jurisdictions-it is not surprising that most states find

11
themselves in some form of litigation or another over their congressional or state legislative districts. See Morgan Cullen & Michelle Davis, 5 Trends Shaping Redistricting, State Legislatures Mag. (Oct./Nov. 2012), http://tinyurl.com/16-1161-tsacA (reporting that "[s]ince 2010, 193 court cases have been filed, and 68 are still active"; that this "is far more than the 149 cases (40 states) filed in the 2000s and the 150 cases (41 states) filed in the 1990s"; and that "[c]ourts have redrawn plans in Colorado, Connecticut, Kansas, Minnesota, Mississippi, New Mexico, Nevada, New York, Texas and Wisconsin"); Justin Levitt, Litigation in the 2010 Cycle, All About Redistricting, http://redistricting.lls.edu/cases.php (last visited Aug. 31, 2017) (providing an interactive map and links to the documents in post-2010 cases).
2. Recent history is replete with examples of political disputes being litigated not only as claims of unconstitutional partisan gerrymandering but also under one of these other rubrics. Indeed, the case now before this Court is typical of how, in many jurisdictions, "decennial litigation [has become] just as much a feature of the political scene as [is] decennial redistricting." Baldus v. Members of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840, 843 (E.D. Wis. 2012) (three-judge court).3
3 The case now before the Court is the second major challenge to the post-2010 Wisconsin state legislative apportionment. Baldus was the first. One of the plaintiff groups in Baldus originally brought a partisan gerrymandering claim, but abandoned that claim at trial. See Baldus, 849 F. Supp. 2d at 848. Another group, composed of legislator-intervenors, pursued the claim, but the court rejected it because the intervenors had

12
a. Georgia's post-2000 state legislative redistricting provides an example of how one-person, one-vote claims get deployed to address partisan gerrymanders.
In the Georgia Legislature, Democrats controlled the redistricting process. "The creators of the state plans did not consider such traditional redistricting criteria as district compactness, contiguity, protecting communities of interest, and keeping counties intact. Rather, they had two expressly enumerated objectives: the protection of rural Georgia and inner-city Atlanta against a relative decline in their populations compared with that of the rest of the state and the protection of Democratic incumbents." Larios v. Cox, 300 F. Supp. 2d 1320, 1325 (N.D. Ga. 2004) (threejudge court), summarily afl'd, 542 U.S. 947 (2004). To achieve these goals, the plan drawers deliberately underpopulated majority-Democratic districts while packing additional residents into majority-Republican ones (stopping just short of the 10% maximum deviation line). They also drew districts pairing a disproportionate number of Republican incumbents against one another. Id. at 1329-30.
Plaintiffs challenged the plan as an unconstitutional political and racial gerrymander. See Larios, 300 F. Supp.2d at 1357-58. The district court rejected the partisan gerrymandering claim, id.; see also id. at 1351 (stating that "[t]oday, we have no
failed to offer a workable standard. See id. at 860. Ultimately, that court held that the configuration of state assembly districts in Milwaukee violated Section 2 of the Voting Rights Act because it diluted the voting strength of Latino citizens, see id. at 854-58, but rejected all of the plaintiffs' other claims, see id. at 859-60.

13
occasiOn to consider the limits of partisan gerrymandering"), and it denied the racial gerrymandering challenge as moot, "as the relief sought by the plaintiffs is granted for other reasons," id. at 1358. Instead, the court ruled for the Republican plaintiffs on their one-person, one-vote claim. Id. at 1357. It held that even though the State had stayed below a total population deviation of 10%, its plan violated principles of one-person, one-vote because the population deviations were "bound up inextricably," id. at 1352, with impermissible efforts "to allow rural and inner-city Atlanta regions of the state to hold on to their legislative influence (at the expense of suburban Atlanta)" despite population shifts and "to protect incumbents in a wholly inconsistent and discriminatory way," id. at 1342. The court expressly reserved the question "whether or when partisan advantage alone mayjustify deviations in population." Id. at 1352.
This Court affirmed summarily. Cox v. Larios, 542 U.S. 947 (2004). Justice Stevens, joined by Justice Breyer, concurred to note that the plan was evidence that "an impermissible partisan gerrymander is visible to the judicial eye and subject to judicially manageable standards." Id. at 950 (Stevens, J., concurring).4
'1 This decade, Georgia is again facing litigation over its redistricting. Earlier this year, the Georgia Conference of the NAACP and five individual voters who identify themselves as both African Americans and registered Democrats brought suit alleging that two of Georgia's state house districts are both unconstitutional racial gerrymanders and unconstitutional partisan gerrymanders; they also allege that the plan violates the

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b. The long-running saga of North Carolina's congressional map-only last Term one of its districts made "its fifth(!) appearance before this Court," Cooper v. Harris, 137 S. Ct. at 1472-shows how partisan disputes get litigated within the Shaw framework.
After the 1990 census, Democrats drew congressional districts with "very contorted" lines to protect their party's incumbents despite a declining share of the vote. Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C. 1992) (three-judge court), summarily afl'd, 506 U.S. 801 (1992). Republicans initially brought a straightforward challenge to the plan as an impermissible partisan gerrymander. Despite recognizing that the plaintiffs had sufficiently alleged "anti-Republican bias" in the plan, id. at 397, the district court felt that its hands were tied by this Court's precedents. Thus, it dismissed the complaint for failure to state a claim, id. at 399, in light of this Court's requirement, in Davis v. Bandemer, 478 U.S. 109 (1986), that plaintiffs show that they had "essentially been shut out of the political process," id. at 139. Republicans could not make such a showing, the district court held, because the plan contained some Republican districts. Pope v. Blue, 809 F. Supp. at 397.
Shortly after this Court affirmed the decision shutting the doors to a partisan gerrymandering
Equal Protection Clause's prohibition on intentional racial vote dilution and Section 2's results test. See Complaint for Injunctive and Declaratory Relief 91911-4, Ga. State Conference of the NAACP v. Georgia, No. 1:17-cv-01427-TCB (N.D. Ga. Apr. 24, 2017), 2017 WL 1457270.

15
claim, it opened the doors to a round of litigation challenging the plan as an impermissible racial gerrymander. See Sbaw v. Reno, 509 U.S. 630 (1993); Shaw v. Hunt, 517 U.S. 899 (1996). Although this Court held that two of the districts violated the prohibition on excessive use of race, it acknowledged that "partisan politicking was actively at work in the districting process." Shaw v. Hunt, 517 U.S. at 907. And not only in the districting process, but in the litigation itself: The plaintiffs from the partisan gerrymandering suit reappeared in the Sbaw litigation, this time claiming the constitutional infirmity in the plan involved race, not politics. It was "plain that these intervenors [were] using their allegations of impermissibly race-based districting to achieve the same substantive result that their previous, less emotionally charged partisan gerrymandering challenge failed to secure." Id. at 920 (Stevens, J., dissenting).
After this Court's decision in Sbaw v. Hunt, the State redrew its districts. This prompted yet a third round of litigation, also involving allegations that the State's plan was an unconstitutional racial gerrymander. In Hunt v. Cromartie, 526 U.S. 541 (1999), the Court reversed the district court's grant of summary judgment for the plaintiffs. In light of the "high correlation between race and party preference," id. at 552, and the State's claim that the challenged plan had been drawn to protect incumbents and maintain a partisan balance, the Court held that a trial was required to determine whether "race was the State's predominant motive" in crafting the plan, id. at 554. On appeal after the trial, the Court held that the plaintiffs had failed to show that "race, rather than

16
politics, predominantly account[ed]" for the configuration of the plan. Easley v. Cromartie, 532 U.S. 234, 257 (2001). Put differently, the plan this Court upheld "was the result of a political gerrymander-an effort to engineer, mostly 'without regard to race,' a safe Democratic seat." Cooper v. Harris, 137 S. Ct. at 1465 (quoting Easley, 532 U.S. at 245).
Following 2010, Republicans controlled North Carolina congressional redistricting. But once again, the State's plan was the subject of a Shaw challenge. The State countered by defending its plan as a '"strictly' political gerrymander." Cooper v. Harris, 137 S. Ct. at 1473. This Court recognized that "[g]etting to the bottom of a dispute like this one poses special challenges for a trial court" especially when "'racial identification is highly correlated with political affiliation."' Id. (quoting Easley, 532 U.S. at 243)). In the case before it, the Court affirmed the district court's conclusion that race impermissibly served as the predominant motive for the challenged districts' configurations.
But litigation over North Carolina's congressional districts is hardly over. When the state legislature redrew the map, it went out of its way to characterize the new map as a partisan gerrymander, purportedly crafted to entrench the Republican "partisan advantage" first achieved "under the map held unconstitutional in [Cooper v.] Harris." Common Cause v. Rucho, 2017 WL 876307, at *2 (M.D.N.C. 2017) (three-judge court) (denying the defendants' motion to dismiss). As with the plan struck down in the Cooper v. Harris litigation, the new plan packs Democratic voters (many of whom are African

17
American) into the First and Twelfth Congressional districts, leaving the remammg districts disproportionately Republican.
c. Texas congressional districting provides an example of how litigation over fiercely partisan gerrymanders occurs in the context of Section 2 racial vote dilution cases.
After the 1990 census, Democrats controlled the redistricting process in Texas. "[D]raw[ing] district lines with artful precision, the legislature enacted a plan later described as the 'shrewdest gerrymander of the 1990s."' LULAC v. Perry, 549 U.S. 399, 410-11 (2006) (opinion of Kennedy, J.) (quoting M. Barone, R. Cohen, & C. Cook, Almanac of American Politics 2002, at 1448 (2001)). The plan allowed the Democrats to control a significant majority of Texas's seats even though Republican candidates garnered 59% of the vote statewide. Nevertheless, a claim that the plan represented an unconstitutional partisan gerrymander failed. See Terrazas v. Slagle, 821 F. Supp. 1162, 1175 (W.D. Tex. 1993) (three-judge court).
Because of divided control of the Texas Legislature, the State was unable to draw a new congressional map immediately after the 2000 census. But in 2003, Republicans gained control of both houses. They then drew a new map, "the singleminded purpose" of which "was to gain partisan advantage." Session v. Perry, 298 F. Supp. 2d 451, 470 (E.D. Tex. 2004) (three-judge court), vacated and remanded in light of Vieth v. Jubelirer, 543 U.S. 941 (2004).
The ensuing lawsuit presented claims of both an unconstitutional partisan gerrymander and violations

18
of Section 2 of the Voting Rights Act. This Court rejected the various theories as to why the plan involved constitutionally excessive partisanship, but held that the State's configuration ofHouse District 23 violated Section 2 of the Voting Rights Act. An "increasingly powerful Latino population" was "threaten[ing] to oust" an incumbent Republican congressman, Henry Bonilla. LULAC, 548 U.S. at 423 (majority opinion). Republicans reconfigured his district (and necessarily several adjacent ones) to reduce the Latino share of the citizen voting-age population and thereby serve the "dual goal of increasing Republican seats in general and protecting Bonilla's incumbency in particular." Id. at 425. (Eliminating Latino voters' ability to elect the representative of their choice in the district drawn to protect Bonilla required the State to draw "an offsetting" majority-minority district elsewhere, id. at 429, in order to obtain preclearance of its plan; the district it drew-House District 25-"combine[d] two farflung" heavily Latino areas, id. at 433. This Court expressed its disapproval of that new district.)
This Court explained that the new district "took away the Latinos' opportunity [to elect the representative of their choice] because Latinos were about to exercise it. This bears the mark ofintentional [racial] discrimination that could give rise to an equal protection violation." LULAC, 548 U.S. at 440. Thus, even if "the State's action was taken primarily for political, not racial, reasons," it was impermissible. Id. Because the Court struck down House District 23 on Section 2 grounds, it was unnecessary to address the plaintiffs' claims "that the use of race and politics in drawing that district violate[d] the First Amendment

21
be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment."). The individual analysis at the heart of one-person, one-vote is thus distinctive from the outcomedependent claim that a group of voters are unable to elect their preferred candidates, because the focus of the latter type of case is "not on population-based apportionment but on the quality of representation." Whitcomb v. Chavis, 403 U.S. 124, 142 (1971); see Nevett v. Sides, 571 F.2d 209, 215-16 (5th Cir. 1978) (distinguishing between the two types of claims), cert. denied, 446 U.S. 951 (1980).
Given this analytic distinction, it is no surprise that the remedy available in a one-person, one-vote case is a hit-or-miss way of addressing the qualitative harm of partisan gerrymandering. A plaintiff who wins a one-person, one-vote claim is entitled only to a new map with more equipopulous districts. Reynolds, 377 U.S. at 586. But while deviations from population equality once offered a useful tool for obtaining partisan advantage, "rapid advances in computer technology" often make it possible for line drawers to create equipopulous districts while also furthering other "secondary goals," such as partisan advantage. Karcher v. Daggett, 462 U.S. 725, 733 (1983). Thus, proving a violation of one-person, one-vote may do nothing to alleviate the political consequences that led the plaintiff to sue in the first place.
Vieth v. Jubelirer, 541 U.S. 267 (2004), proves the point. Initially, Democratic voters brought and won a one-person, one-vote challenge based on a maximum population deviation of nineteen people. Vieth v. Pennsylvania, 195 F. Supp. 2d 672, 675, 678 (M.D. Pa. 2002) (three-judge court), appeal dismissed as moot,

22
537 U.S. 801 (2002). After the legislature drew a remedial plan, voters immediately filed another challenge on the grounds of both malapportionment and excessive partisan gerrymandering. This time, the district court upheld the plan, despite the fact that, "like its predecessor," the plan drawers had "jettison[ed] every other neutral non-discriminatory redistricting criteria that the Supreme Court ha[d] endorsed." Vieth v. Pennsylvania, 241 F. Supp. 2d 478, 483 n.3 (M.D. Pa. 2003) (three-judge court), affd, 541 U.S. 267 (2004). The court found it irrelevant that the plan was allegedly "rigged to guarantee that thirteen of Pennsylvania's nineteen congressional representatives will be Republicans" despite the two major parties enjoying "nearly equal support in the Commonwealth," Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 546, 536 (M.D. Pa. 2002) (three-judge court); see Vieth v. Pennsylvania, 241 F. Supp. 2d at 485 (reaffirming this analysis). The reason? This time, the population deviations were minimized.
2. Despite the conceptual mismatch, lower courts are increasingly using one-person, one-vote as a mechanism for striking down plans essentially because the courts conclude that excessive partisanship is at work.
Until recently, the "general matter" seemed to be that a plan with "a maximum population deviation under 10%" involved deviations "insufficient to make out a prima facie case." Brown v. Thomson, 462 U.S. 835, 842 (1983).
But faced with "the sense that legislative restraint was abandoned," Vieth, 541 U.S. at 316 (Kennedy, J., concurring in the judgment), federal courts seem increasingly willing to strike down plans with these

23
previously safe population deviations. Amici have already described Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) (three-judge court), summarily aff'd, 542 U.S. 947 (2004), where the district court struck down such a plan because of its "systematic favoring of Democratic incumbents," id. at 1353. See supra pp. 12-13; see also Hulme v. Madison County, 188 F. Supp. 2d 1041, 1051 (S.D. Ill. 2001) (invalidating highly partisan plan as "unquestionably tainted with arbitrariness and discrimination").
More recently, courts have taken as an authorization to strike down plans for excessive partisanship this Court's suggestion that plaintiffs can attack plans for violating one-person, one-vote if they show that "it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors," Harris v. Ariz. Indep. Redistricting Comm'n, 136 S. Ct. 1301, 1307 (2016). Thus, in Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016), the court of appeals struck down local electoral districts on the grounds that it was "more probable than not that the population deviations at issue here reflect the predominance of a[n] illegitimate reapportionment factor-namely an 'intentional effort' to create 'a significant ... partisan advantage."' Id. at 345 (citation omitted) (quoting Larios, 542 U.S. at 94749 (Stevens, J., concurring)). And in Perez v. Abbott, SA-11-CV-360, 2017 WL 1450121 CW.D. Tex. Apr. 20, 2017) (three-judge court), a court struck down several state legislative districts in a plan with less than 10% total deviation. Two districts were unconstitutional because the motives for the otherwise-minor population deviations "were exceedingly political and

24
racial." Id. at *74. Similarly, another district was unconstitutional because the population deviation w "not the result of any legitimate redistricting considerations, and instead [was] driven only by the partisan objective of re-electing" a Republican incumbent. Id. at *69.
3. The practical problems with this emerging use of one-person, one-vote are several.
First, without guidance from this Court on when partisan considerations are illegitimate-the core question in this case-lower federal courts are likely to take divergent positions when they get to the justification phase ofmalapportionment suits. Judges will disagree on the degree of partisanship sufficient to render population deviations illegitimate. And because lower court decisions diverge, many courts faced with such a claim expend significant time and attention on trying to figure out the law. See, e.g., Perez, 2017 WL 1450121, at *60-*74.
In Anne Arundel County Republican Central Committee v. State Administrative Board of Election Laws, 781 F. Supp. 394 (D. Md. 1991) (three-judge court), summarily affd, 504 U.S. 938 (1992), the district court split 2-1 over the constitutionality of a congressional map with a maximum deviation of ten people (from ideal districts of 597,683.5 people each). Id. at 395. The majority required the State to justify the deviation, but upheld the plan because it believed the State's interests were sufficiently legitimate "to warrant the very small numerical variance among the congressional districts seen here." Id. at 396-97. In dissent, Judge Niemeyer took issue with both prongs of the majority's analysis. He doubted that any "policy or consideration" would be "served by shifting three or

25
four persons from one district to another or needs to be advanced for failing to shift them." Id. at 402. That being said, he argued that the plan was unconstitutional because it could not be justified by legitimate, neutral districting principles. See id. at 408-10.
Moreover, absent guidance from this Court, jurisdictions cannot intelligently assess their litigation risk with respect to plans whose deviations realistically have no effect on the mathematical equality of any individual voter's ballot. This deprives them of the "play in [the] joints," Reynolds, 377 U.S. at 577 n.57 (citation omitted), that led this Court to reject a strict population equality standard for state and local electoral districts. Jurisdictions may be reluctant to deviate even minimally for wholly legitimate reasons given the risk of litigation and the cost of defending themselves. Redistricting law would work better if this Court once again gave those who draw state and local districts some flexibility with respect to district populations. By articulating a standard for judicial review ofpartisan gerrymandering claims, the Court could relieve the pressure on courts to engage one-person, one-vote "issues" as a tool for addressing the real constitutional infirmity.
In addition, when the real impetus for a oneperson, one-vote lawsuit is partisan consequences, there may be gamesmanship with respect to the timing of litigation. Absent some change in the identity or interests of the people who draw the new lines, plaintiffs who win a malapportionment suit will likely find themselves confronted with an equally partisan new map. Litigation will therefore get brought, and the pace will be set, by the parties' sense

26
of whether, if the map is struck down, control over redrawing the lines will shift to actors who share the plaintiffs' political interests or will deadlock, leaving the task of setting district boundaries to the court. Because "political gerrymandering, a purely partisan exercise, is inappropriate for a federal court drawing a congressional redistricting map," Balderas v. Texas, No. 6:01CV158, 2001 WL 36403750, at *4 (E.D. Tex. Nov. 14, 2001) (three-judge court), summarily affd, 536 U.S. 919 (2002), the lines in the new plan will likely be more politically neutral. See Connor v. Finch, 431 U.S. 407,415 (1977). The upshot ofthese practical considerations is that lawsuits may be brought well into the decade, by which time the ostensible population deviations no longer reflect any reality on the ground, see Karcher v. Daggett, 462 U.S. 725, 732 (1983) (pointing to "the well-known restlessness of the American people [that] means that population counts for particular localities are outdated long before they are completed").
Finally, whenjudicial decisions strike down plans based on minuscule numerical differences in district populations, courts risk the public perception that they are being disingenuous. See, e.g., Terry Madonna & Michael Young, Opinion, Is Court Changing Rules on Redrawing Political Maps?, Morning Call (Allentown, Pa.) (Apr. 26, 2002), http://tinyurl.com/161161-tsacB (suggesting that "[a]rcane statistics" about population deviations were not the district court's real concern in the first round of Vieth, but that the court was motivated by "the partisan nature of the Republican plan").

27
B. The absence of a straightforward partisan gerrymandering claim has distorted doctrines designed to address racial discrimination in redistricting.
The absence of a partisan gerrymandering standard has had the "perverse consequence[]" of incentivizing litigants in multiracial or multiethnic jurisdictions to "squeeze all claims of improper manipulation of redistricting into the suffocating category of race." Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 630-31 (2002). This dynamic creates a harmful and unnecessary fixation on race and fosters cynicism about the Voting Rights Act, undermining the national commitment to ensuring that all citizens, regardless of race, are able to elect candidates of their choice. And the problems that come from doctrinal entanglement has only grown more complex over time.
1. Twenty years ago, Justice Stevens presciently warned that Shaw claims might become "useful less as a tool for protecting against racial discrimination than as a means by which state residents may second-guess legislative districting in federal court for partisan ends." Shaw v. Hunt, 517 U.S. 899, 920 (1996) (Stevens, J., dissenting).
Like reapportionment itself, litigation over reapportionment "is one area in which appearances do matter." Shaw v. Reno, 509 U.S. 630, 647 (1993). Packaging political disputes as impermissible racial gerrymanders "reinforces the perception," id., that race lies at the heart of American politics and threatens to "exacerbate" the racial polarization that antidiscrimination law is designed to combat, id. at 648. Such packaging creates a "corrosive discourse" in

28
which "race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process." Parents Involved in Cmty. Scb. v. Seattle Scb. Dist. No. 1, 551 U.S. 701, 797 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
2. Not only does the absence of a clear path for attacking excessive partisanship create an incentive for plaintiffs to cry intentional racial discrimination when their real objection is political, but it gives jurisdictions an incentive to defend themselves by asserting that instead of committing one violation of constitutional principles by excessively relying on racial considerations, they actually committed another: they sought to "minimize or cancel out the voting strength" of "political elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439 (1965). This incentive lay at the heart of North Carolina's defense in Cooper v. Harris, 137 S. Ct. 1455, 1476-77 (2017). The availability of an "'it was really politics' defense," id. at 1481, encourages a sort of litigation shell game that reinforces public suspicion that race and politics are interchangeable. For example, faced with challenges to its post-1990 congressional districts, Texas legislators defended against a partisan gerrymandering claim by asserting that they were motivated by race, and against a racial gerrymandering claim by asserting that they were motivated by politics. Busb v. Vera, 517 U.S. 952, 970 (1996) (plurality opinion).
Even worse, if courts uphold redistricting plans based on the "blame it on politics" defense and do not articulate any limits on partisan considerations, they become complicit in potential constitutional violations.

29
Far from simply declaring challenges to partisan gerrymandering nonjusticiable, courts that accept the defense are actually giving judicial imprimatur to partisan gerrymanders.
By contrast, adopting a judicially enforceable limit on the permissible degree of partisanship would reinforce democratic principles and dissuade states from justifying redistricting plans by claiming that they were deliberately trying to cancel out citizens' ability to elect public officials responsive to their needs. Moreover, adopting such a limit would authorize lower courts to resolve partisan gerrymandering cases without unnecessarily focusing on race.
2. Shoehorning partisan disputes into Section 2 claims creates cynicism about the Voting Rights Act, threatening the national commitment to providing all citizens with an equal opportunity to elect representatives of their choice.
The central goal of the Act "is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race." Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). But until partisan disputes can be litigated openly, "the party out of power [will attempt] to stretch the protective cover of the Voting Rights Act, urging dilution of critical standards that may, if accepted, aid their party in the short-run but work to the detriment of persons now protected by the Act in the long-run." Session v. Perry, 298 F. Supp. 2d 451, 474 (E.D. Tex. 2004) (three-judge court), vacated and remanded in light ofVieth v. Jubelirer, 543 U.S. 941 (2004). When courts perceive that a proportion of Section 2 claims are nothing more than disputes

30
between the major political parties, doctrines may emerge that make it harder for minority communities whose voting strength has actually been diluted to enforce the statute.
This is a serious problem given that "voting discrimination still exists; no one doubts that." Shelby County v. Holder, 133 S. Ct. 2612, 2619 (2013). Even today, Section 2 is vital to addressing electoral districts that deny minority voters equal opportunities to elect candidates of their choice. See, e.g., Patino v. City ofPasadena, 230 F. Supp. 3d 667,674 (S.D. Tex. 2017) (finding Section 2 violation involving intentional discrimination against Latino voters), stay denied pending appeal, 677 F. App'x 950, 953 (5th Cir. 2017); Mo. State Conference of the NAACP v. FergusonFlorissant Sch. Dist., 201 F. Supp. 3d 1006, 1082 (E.D. Mo. 2016), appeal docketed, No. 16-4511 (8th Cir. Dec. 21, 2016). By enabling courts to address partisan gerrymandering head on, this Court can preserve Section 2 for cases where minority voters are denied the ability other citizens have to elect representatives of their choice. Those cases may overlap cases in which unconstitutional partisanship played a role, but they are not identicaP
5 This Court generally encourages avoiding constitutional questions-such as unconstitutional partisanship-when a case can be resolved on statutory grounds. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). But questions of race are sometimes so fraught that there may be situations in which it is appropriate to resolve the constitutional claim that a plan involves a blatant partisan gerrymander without first addressing the Section 2 claim. Establishing a standard for excessive partisanship would provide a neutral alternative to unnecessarily fixating on race.

32
partisan effects. All they would need to do differently is use that information to stay within constitutional bounds rather than to maximize partisan advantage.
Moreover, requiring some modicum of political fairness does not require line drawers to walk the kind of tightrope they face in complying with other sorts of constraints on districting. Consider, for example, the role of race in the apportionment process. Section 2 of the Voting Rights Act often requires taking race into account in order to ensure that district configurations do not deny minority voters an equal opportunity to elect representatives oftheir choice. At the same time, this Court's Shaw jurisprudence forbids taking it into account too much. Jurisdictions that guess wrong about what the Act requires may produce a plan that gets struck down because race has played too great a role, see, e.g., Cooper v. Harris, 137 S. Ct. 1455 (2017), or because they have failed to draw majority-minority districts where such districts are required, see, e.g., LULAC v. Perry, 548 U.S. 399 (2006).
No such tension exists in the case of partisanship. "There are no comparable affirmative legal obligations that require states to take partisanship into account." Richard H. Pildes, The Supreme Court, 2003 TermForeword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 67 (2004). The fact that states with independent redistricting commissions often expressly forbid partisan considerations proves the point. To the extent that this Court restricts legislatures' options in announcing a justiciable limit on partisan considerations, it simply reins in "a system in which the representatives choose their constituents, rather than vice-versa." Vieth v. Jubelirer, 541 U.S. 267, 332 (2004) (Stevens, J., dissenting) (citation

33
omitted). That some jurisdictions may draw plans that forgo a permissible amount of partisanship is a small price to pay for restoring coherence to redistricting doctrine and preventing egregious gerrymandering.
2. Placing some judicially enforceable restriction on the degree of permissible partisanship in drawing electoral district boundaries does not usurp states' proper authority over redistricting.
The Legislative Amicus Brief argues that imposing a judicially enforceable limit on partisan gerrymandering runs afoul of this Court's concern that redistricting not be '"recurringly removed from legislative hands and performed by federal courts."' Wisconsin Legislative Amicus Br. 4 (quoting Gaffney v. Cummings, 412 U.S. 735, 749 (1973)). But that quotation has been ripped out of context. It appears in a paragraph discussing the Gaffney plaintiffs' oneperson, one-vote claims. This Court was doing nothing more than expressing an aversion to judicial "displacement of otherwise appropriate state decisionmaking in the name of essentially minor deviations from perfect census-population equality that no one, with confidence, can say will deprive any person of fair and effective representation in his state legislature." Gaffney, 412 U.S. at 749.
This case involves a very different sort of claim. As appellees explain, Wisconsin's plan deprives the roughly half the State's electorate that supports Democratic candidates of its right to fair and effective representation in the state legislature. See Appellees' Br. 14-17. And the reason this Court recognizes that nakedly partisan line drawing is "incompatible with democratic principles," Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658

34
(2015) (alterations omitted) (quoting Vieth, 541 U.S. at 292 (2004) (plurality opinion)), is precisely because it does threaten these representational injuries.
"While legislatures, in most states, clearly have the "primary role" in redistricting, this Court's "precedents recognize an important role for the courts when a districting plan violates the Constitution." LULAC, 548 U.S. at 415 (2006) (opinion of Kennedy, J.). It should make clear that this role extends to situations where a districting plan violates constitutional constraints on excessive partisanship.

CONCLUSION The judgment of the district court should be affirmed.
Respectfully submitted,

September 5, 2017

Pamela S. Karlan Counsel ofRecord
Jeffrey L. Fisher David T. Goldberg
STANFORD LAW SCHOOL
SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way Stanford, CA 94305 (650) 725-4851 karlan@stanford.edu

 
 No. 16-1161

IN THE
Supreme Court of the United States
___________

BEVERLY R. GILL, ET AL.,

Appellants, v.

WILLIAM WHITFORD, ET AL., _____________

Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin _____________

BRIEF OF SENATORS JOHN McCAIN AND SHELDON WHITEHOUSE IN SUPPORT
OF APPELLEES _____________

Kathryn Cahoy COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94065 (650) 632-4700
KeAndra Barlow COVINGTON & BURLING LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067 (424) 332-4800

Mark W. Mosier Counsel of Record
Ryan Mowery Alec Webley COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 mmosier@cov.com (202) 662-6000
Counsel for Amici Curiae

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................2
ARGUMENT ...............................................................5
I. Partisan Gerrymandering Has Become A Tool For Powerful Interests To Distort The Democratic Process. .............................................5 A. Vieth Opened The Door To Extreme Partisan Gerrymandering............................6 B. Dark Money Fuels Partisan Gerrymandering On Both Sides Of The Aisle. ....................................................11 C. Partisan Gerrymandering Produces Uncompetitive And Unrepresentative Districts That Have A Corrosive Effect On Our Democracy. .........................16
II. The Court Should Curb The Rise Of Partisan Gerrymandering By Affirming The District Court’s Decision. ...........................21
CONCLUSION ..........................................................25

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................23

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ...................................... 3, 22

Benisek v. Lamone, 2017 WL 3642928 (D. Md. Aug. 24, 2017) ............................................................... 10, 11

Comm. for a Fair and Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563 (N.D. Ill. 2011)....................10

Davis v. Bandemer, 478 U.S. 109 (1986)..............................................24

Gaffney v. Cummings, 412 U.S. 735 (1973)..............................................22

League of United Latin Am. Citizens v. Perry (LULAC), 543 U.S. 399 (2006)...................25

Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..........................................25

Powell v. McCormack, 395 U.S. 486 (1969)..............................................17

iii

Reynolds v. Sims, 377 U.S. 533 (1964)..............................................21
Vieth v. Jubelirer, 541 U.S. 267 (2004) ...................................... passim
Other Authorities
Bill Allison & Sarah Harkins, Sunlight Found., Fixed Fortunes: Biggest Corporate Political Interests Spend Billions, Get Trillions (Nov. 17, 2014), https://sunlightfoundation.com/2014/11/17/ fixed-fortunes-biggest-corporate-politicalinterests-spend-billions-get-trillions/ ..................16
America Votes (last accessed Aug. 31, 2017), https://americavotes.org/about/ ...........................15
Americans Across Party Lines Oppose Common Gerrymandering Practices, The Harris Poll (Nov. 7, 2013), http://www.theharrispoll.com/politics/Ame ricans_Across_Party_Lines_Oppose_Com mon_Gerrymandering_Practices.html .......... 19, 20
Emily Bazelon, The New Front in the Gerrymandering Wars: Democracy vs. Math, N. Y. Times Mag. (Aug. 29, 2017) .................. 2, 11, 20
Richard Berman, The Democrats’ Dark Money Hypocrisy, The Hill (May 5, 2016).......................15
iv

Nathan S. Catanese, Note, Gerrymandered Gridlock: Addressing the Hazardous Impact of Partisan Redistricting, 28 Notre Dame J. L. Ethics & Pub. Pol’y 323 (2014) ..... 8, 11
Laurence Cockroft & Anne-Christine Wegener, Unmasked (2017).................................16
Betsy Cooper, et al., PRRI, The Divide Over America’s Future: 1950 or 2050? Findings From the 2016 American Values Survey (Oct. 25, 2016), https://www.prri.org/research/poll-1950s2050-divided-nations-direction-postelection/ ................................................................19
Dave Daley, How Democrats Gerrymandered Their Way to Victory in Maryland, The Atlantic (June 25, 2017), https://www.theatlantic.com/politics/archive/2017/06/howdeep-blue-maryland-shows-redistrictingis-broken/531492/ ........................................... 10, 14
Fred Dews, A Primer on Gerrymandering and Political Polarization, Brookings (July 6, 2017), https://www.brookings.edu/blog/brookings-now/2017/07/06/aprimer-on-gerrymandering-and-politicalpolarization/ ................................................... 18, 20
Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Perspectives on Politics, no. 3, Sept. 2014................19
v

Matea Gold, Wealthy Donors on Left Launch New Plan to Wrest Back Control in the States, Wash. Post (Apr. 12, 2015) ......................15
J. Gerald Hebert, Paul M. Smith, Martina E. Vandenberg, & Michael B. DeSanctis, A.B.A., The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls (2d ed. 2010) .......................................................................3
Andrew Jackson, Veto Message Regarding the Bank of the United States (July 10, 1832), available at http://avalon.law.yale.edu/19th_century/aj veto01.asp ............................................................... 5
Brian Klaas, The Despot’s Accomplice: How the West is Aiding and Abetting the Decline of Democracy (2016) .................... 18, 20, 21
Chisun Lee, et al., Brennan Ctr. for Justice, Secret Spending in the States (June 26, 2016), https://www.brennancenter.org/publication/secret-spending-states ............................16
Niccolo Machiavelli, The Prince..................................5
Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (2016)............................................11
Anthony J. McGann, et al., Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016)........................6, 7, 8, 9
vi

Members of the U.S. Congress, 115th Congress, https://www.congress.gov/members?q={%2 2congress%22:%22115%22,%22chamber% 22:%22House%22} .................................................. 8
Stephen Ohlemacher, GOP Gerrymandering Creates Uphill Fight for Dems in the House, PBS NewsHour (Mar. 31, 2014), http://www.pbs.org/newshour/rundown/gop-gerrymandering-creates-uphillfight-dems-house/ ................................................... 7
Peter Overby, NPR News Investigations, From Social Welfare Groups, a River of Political Influence (Nov. 5, 2013), http://www.npr.org/2013/11/05/242354030/ from-social-welfare-groups-a-river-ofpolitical-influence................................................. 13
Olga Pierce, et al., How Dark Money Helped Republicans Hold the House and Hurt Voters, ProPublica (Dec. 21, 2012), https://www.propublica.org/article/howdark-money-helped-republicans-hold-thehouse-and-hurt-voters ............................. 12, 13, 14
Redistricting Majority Project, http://www.redistrictingmajorityproject.co m/ (last visited Aug. 31, 2017) .............................12
Redistricting Majority Project, 2012 REDMAP Summary Report (Jan. 4, 2013), http://www.redistrictingmajorityproject.co m/ ..........................................................................14
vii

Karl Rove, The GOP Targets State Legislatures, Wall St. J. (Mar. 4, 2010), https://www.wsj.com/articles/SB10001424052748703862704575099 670689398044 ......................................................13
Secret Donors Fuel Democratic Political Powerhouse, Ctr. for Pub. Integrity (Nov. 18, 2015), https://www.publicintegrity.org/2015/11/18 /18875/secret-donors-fuel-democraticpolitical-powerhouse ............................................15
Peter H. Shuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325 (1987) ...........................................................17
Jeffrey Toobin, Drawing the Line, The New Yorker, Mar. 6, 2006 ............................................17
Views on Power and Influence in Washington, Assoc. Press-NORC Ctr. for Pub. Affairs Research (2017), http://www.apnorc.org/projects/Pages/Power-and-Influence-in-Washington.aspx ..................................... 19
Sheldon Whitehouse, Captured: The Corporate Infiltration of American Democracy (2017) ...................................................2
viii

Why Democrats are Taking Aim at Gerrymandering, The Economist (July 12, 2017), https://www.economist.com/blogs/economist-explains/2017/07/economist-explains6. .............................................................................9
ix

INTEREST OF AMICI CURIAE
Amici are U.S. Senator John McCain of Arizona and U.S. Senator Sheldon Whitehouse of Rhode Island.1
As national political leaders, amici have a strong interest in the proper functioning of our democracy, and are witnesses to the symptoms and ill effects of its distress. As active, democratically elected legislators of both major political parties, amici are deeply concerned about the damage excessive partisan redistricting inflicts on the American democratic process.
Amici see firsthand the concerns of constituents who increasingly view politics as a game run by powerful special interests that have changed the rules to win the game. We also see why constituents believe that. We see the age-old problem worsening of an “influencer class” that the public sees garnering disproportionate rewards at the public’s expense, and we see gerrymandering as a tool of the influencer class in that effort.
Americans do not like gerrymandering. They see its mischief, and absent a legal remedy, their sense of powerlessness and discouragement has increased, deepening the crisis of confidence in our democracy. We share this perspective. From our vantage point,
1 Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici, their members, or their counsel made any monetary contributions intended to fund the preparation or submission of this brief. The parties have filed letters with the Clerk consenting to the filing of all amicus briefs in this case.

we see wasted votes and silenced voices. We see hidden power. And we see a correctable problem.
Amici hope that this bipartisan report from the political front lines will aid the Court by providing pragmatic, real-world input on the ways in which partisan gerrymandering undermines our democracy. These concerns should be central to the Court’s review of whether the district court correctly held that Wisconsin’s redistricting scheme constitutes an unconstitutional partisan gerrymander.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case implicates the effective functioning of American representative democracy. With roots tracing to Patrick Henry and Massachusetts Governor Elbridge Gerry, politically motivated redistricting has long been a part of American politics. But what began as a tactic to protect individual incumbencies and to undercut adversaries has morphed into something much different today. Partisan gerrymandering is now accomplished by using sophisticated technology—including mapping software, census data, and voting algorithms—to redraw a state’s district lines to maximize partisan advantage across an entire state.2
This new breed of “bulk” partisan gerrymandering distorts statewide votes, systematically diluting the effect of votes based on political affiliation and leading
2 See Sheldon Whitehouse, Captured: The Corporate Infiltration of American Democracy 83–86 (2017); Emily Bazelon, The New Front in the Gerrymandering Wars: Democracy vs. Math, N. Y. Times Mag. (Aug. 29, 2017).
2

to the election of congressional and state legislative delegations that do not represent the will of the voters. This practice violates “the core principle of republican government, namely, that the voters should choose their representatives, not the other way around.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (internal quotation marks omitted).
I. A. The rise of extreme partisan gerrymandering over the past decade can be traced directly to this Court’s decision in Vieth v. Jubelirer, 541 U.S. 267 (2004). Although partisan gerrymandering existed before Vieth, the threat of judicial review provided a strong deterrent that kept states from adopting extremely gerrymandered districts. Vieth’s refusal to treat partisan gerrymandering claims as justiciable effectively removed this threat. State legislatures— and political operatives seeking to gain and entrench political power—have viewed this decision as an invitation to redraw districts to push the limit of partisan advantage. As the American Bar Association observed, “[t]he Court’s recent decisions appear to give legislators leeway to preserve partisan advantage as zealously as they like when drawing district lines.”3
B. The increase in partisan gerrymandering in recent years has been bolstered by the growing presence of “dark money” in the American political system.4
3 J. Gerald Hebert, Paul M. Smith, Martina E. Vandenberg, & Michael B. DeSanctis, A.B.A., The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls 19 (2d ed. 2010).
4 By “dark money,” we mean money contributed to nonprofit organizations and used for political purposes without disclosure of the donor’s identity.
3

Special interest groups, fueled by hidden funders with deep pockets and skin in the political game, are now focused on influencing redistricting. The payoff for these groups is obvious: By shaping the decennial redistricting process, special interest groups can affect the outcome of every Congressional race in a state for the next decade. The role of dark money in this process is a bipartisan concern, as both Republicans and Democrats rely on this funding.
C. This Court has already acknowledged “the incompatibility of severe partisan gerrymanders with democratic principles.” Vieth, 541 U.S. at 292. Severe partisan gerrymandering undermines our democracy, which is based on fair and open elections that accurately reflect the will of the people and count every vote equally. When the voters of a state vote one way, the resulting congressional delegation is more than 21 the opposite way, and the advantaged party intentionally produced that undemocratic result, it should be obvious that “one person, one vote” has been violated. This partisan gerrymandering leads voters to perceive, rightly, that their votes do not matter. Indeed, we have seen firsthand the growing concerns of constituents who view politics as a game orchestrated by powerful special interests whose victories come at the expense of the American voter.
II. The Court should affirm the district court’s decision. The district court’s test provides a workable framework for distinguishing between district maps drawn based on legitimate political considerations and those constituting unlawful partisan gerrymandering. That test is more than sufficient to find an unconstitutional gerrymander on the facts of this
4

case. The Court need not go beyond these facts and attempt to create a comprehensive test that can resolve all potential partisan gerrymandering challenges. Beyond remedying the constitutional violations present in this case, affirming the district court’s decision will send a clear message that partisan gerrymandering will not be tolerated.
ARGUMENT
I. Partisan Gerrymandering Has Become A Tool For Powerful Interests To Distort The Democratic Process.
Democracy is not abstract or academic. It is a battleground on which competing interests exert all the pressure they can muster. This battleground often pits special interest groups against a general population that wants only to be treated fairly.5
Special interest groups have long influenced the outcome of elections. But this Court’s decision in Vieth made redistricting a particularly attractive tool for
5 This is a long-observed conflict, reflected in the pages of history from Niccolo Machiavelli's writings to President Jackson's bank veto message. See, e.g., Niccolo Machiavelli, The Prince, ch. IX (1513) (speaking of “two distinct parties” in a governed society: one, “the nobles [who] wish to rule and oppress the people,” and two, “the people [who] do not wish to be ruled nor oppressed by the nobles”); Andrew Jackson, Veto Message Regarding the Bank of the United States (July 10, 1832), available at http://avalon.law.yale.edu/19th_century/ajveto01.asp (distinguishing between “the rich and powerful [who] too often bend the acts of government to their selfish purposes” and the “humble members of society—the farmers, mechanics, and laborers—who have neither the time nor the means of securing like favors to themselves”).
5

these groups. No longer concerned about the prospect of judicial review, state legislatures now push gerrymandering to its limits, and special interests, supported by dark money, help them do so. The result has greatly undermined the public’s faith in our democracy.
A. Vieth Opened The Door To Extreme Partisan Gerrymandering.
Justice Kennedy, in his concurring opinion in Vieth, predicted that “if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow.” 541 U.S. at 312. That prediction has come true. The frequency and egregiousness of partisan gerrymandering has intensified in the decade since Vieth, and absent this court’s intervention, the problem is only likely to worsen. Without the threat of judicial review, political parties have every incentive to engage in extreme partisan gerrymandering.
Vieth sent a clear signal that the Court was no longer inclined to intervene in partisan gerrymandering cases.6 Vieth’s impact has been felt since 2010— the first round of redistricting after the decision—as state governments sought to redraw electoral maps for partisan advantage more aggressively than ever
6 Anthony J. McGann, et al., Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty 5 (2016) (“[A]fter Vieth v. Jubelirer (2004), state legislatures were willing to district for partisan advantage far more than they had previously.”).
6

before.7 Observers have recognized that “[t]he world changed with the 2010 redistricting. States were no longer constrained by the threat of judicial challenge of partisan gerrymanders, and where one party completely controlled the redistricting process, it often took full advantage.”8
The redistricting plan in this case provides a good example of post-Vieth partisan gerrymandering. The Wisconsin plan ensured that “Republicans would maintain a majority under any likely voting scenario; indeed, they would maintain a 54 seat majority while garnering only 48% of the statewide vote. The Democrats, by contrast, would need 54% of the statewide vote to capture a majority.” Jurisdictional Statement App. 27a (emphasis added). The plan produced precisely this lopsided result in the 2012 election that followed, in which Republicans won 60 of 99 General Assembly seats despite receiving only 48.6% of the statewide vote. Id. at 30a.
Congressional seats have also been subject to more extreme partisan gerrymandering since Vieth. In 2012, Republicans gained a 33-seat advantage in the House, despite receiving more than one million fewer votes than Democrats.9 Most of this advantage can be attributed to Republicans successfully tilting
7 Id. at 3.
8 Id. at 17.
9 Stephen Ohlemacher, GOP Gerrymandering Creates Uphill Fight for Dems in the House, PBS NewsHour (Mar. 31, 2014), http://www.pbs.org/newshour/rundown/gop-gerrymanderingcreates-uphill-fight-dems-house/.
7

the electoral maps in key swing states. In Pennsylvania, Ohio, and Michigan—states carried by President Obama in 2008 and 2012—Republicans hold 34 out of 48 congressional seats in the wake of the 2010 redistricting process.10
Pennsylvania provides a good example of Vieth’s effects. Following the 1990 Census, Pennsylvania’s congressional districts were relatively compact with few oddly shaped districts, and had little or no partisan bias.11 After the 2000 Census, the redistricting plan had a few more oddly shaped districts and indications of partisan bias, but the plan was approved by the district court and affirmed by the Court in Vieth.12
After the 2010 Census, Pennsylvania’s districting plan changed dramatically, pushing partisan gerrymandering to its limits. The previously compact districts were largely replaced by districts that are “either elongated or have tendrils that cut into the surrounding districts.”13 From the Republicans’ perspective, these changes worked: In the 2012 House elections, Democrats received more votes than Republicans, but the state sent thirteen Republicans and only five Democrats to Congress.14
10 See Members of the U.S. Congress, 115th Congress, https://www.congress.gov/members?q={%22congress%22:%22115%22,%22chamber%22:%22House%22}.
11 McGann, supra note 6, at 9.
12 Id. at 11.
13 Id. at 13.
14 Nathan S. Catanese, Note, Gerrymandered Gridlock: Addressing the Hazardous Impact of Partisan Redistricting, 28 Notre Dame J. L. Ethics & Pub. Pol’y 323, 329 (2014).
8

Scholars have concluded that this Court’s decision in Vieth was the primary reason for Pennsylvania’s decision to further gerrymander its congressional districts.15 When the post-2000 districts were drawn, gerrymandering for political gain could still be meaningfully challenged in the courts, which explains “why the level of partisan gerrymandering was quite modest in the post-2000 districts compared to the post2010 ones, even though the Republicans controlled the governorship and state legislature in both cases.”16 The congressional districts adopted after Vieth, in contrast, “show the full potential of partisan gerrymandering when there is no threat of judicial action.”17
Republicans have certainly benefited from postVieth gerrymandering, but they are hardly alone in skewing district lines for political gain. As one commentator noted, partisan gerrymandering is “a decennial sin of every majority party.”18 Where Democrats have been in control, they have drawn gerrymandered maps just like their Republican counterparts.
15 McGann, supra note 6, at 3. The increase in partisan gerrymandering from the 2000 Census to the 2010 Census is clear even if one controls for a variety of other factors, including urban concentration, changes in technology, and the requirements of the Voting Rights Act. Id. at 4–5, 12.
16 Id. at 12.
17 Id. at 13 (“In the previous round, the Pennsylvania state government had to consider the possibility that the courts would strike down a blatantly gerrymandered districting plan. After Vieth v. Jubelirer (2004), this was no longer the case.”).
18 Why Democrats are Taking Aim at Gerrymandering, The Economist (July 12, 2017), https://www.economist.com/blogs/economist-explains/2017/07/economist-explains-6.
9

Maryland illustrates as much. Following the 2010 Census, Democrats sought to redraw district lines to improve upon the 6-2 advantage they already enjoyed in the state’s congressional delegation. Democrats took aim at Maryland’s sixth district, which had elected a Republican representative for the previous two decades. Working with hired data analysts using sophisticated mapping software, Democrats successfully instituted the so-called “7-1 map,” reshaping the sixth district into what one commentator compared to a “fire-breathing dragon.”19 The plan shifted almost 70,000 Republicans out of the district in a nakedly partisan, and successful, effort to unseat its ten-term Republican incumbent.20
Democrats have also led successful partisan redistricting efforts in Illinois. In 2010, Republicans held 11 of Illinois’ 19 House seats. After Democrats redrew the district lines in 2011, they took 12 of Illinois’ 18 seats in the 2012 election. Although challenged by Republicans, a federal district court, relying heavily on Vieth, upheld the gerrymander despite finding that it was “a blatant political move to increase the number of Democratic congressional seats.” Comm. for a Fair
19 Dave Daley, How Democrats Gerrymandered Their Way to Victory in Maryland, The Atlantic (June 25, 2017), https://www.theatlantic.com/politics/archive/2017/06/how-deepblue-maryland-shows-redistricting-is-broken/531492/.
20 As Judge Niemeyer recently observed, “[t]his 2011 shuffle accomplished the single largest redistricting swing of one party to another of any congressional district in the Nation.” Benisek v. Lamone, 2017 WL 3642928, at *15 (D. Md. Aug. 24, 2017) (Niemeyer, J., dissenting).
10

and Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d 563, 567 (N.D. Ill. 2011).21
In short, partisan gerrymandering has worsened significantly since Vieth removed the threat of judicial review. With the 2020 Census quickly approaching, the Court should curb this pernicious practice.
B. Dark Money Fuels Partisan Gerrymandering On Both Sides Of The Aisle.
As state governments become more willing to engage in partisan gerrymandering post-Vieth, a predictable result has occurred: Special interest groups, funded by dark money, are playing an increasingly active role in redistricting.
Drawing district lines that maximize partisan advantage is a complicated task. Legislators therefore turn to outside consultants and organizations, which offer detailed guidance on how to redraw district maps. These groups rely on sophisticated mapmaking software, census data, and partisan voting algorithms to determine how best to maximize partisan gain.22 This expertise is expensive, but special interest groups are willing to foot the bill because they recognize the potential return on their investment. Spending money to help a House candidate in an election
21 See also Catanese, supra note 14, at 331 (discussing Illinois as an example of a Democratic-controlled gerrymander).
22 See, e.g., Benisek, 2017 WL 3642928, at *19–20; Bazelon, supra note 2; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right 411 (2016) (“The advent of computers had turned redistricting into an expensive, cynical, and highly precise science.”).
11

can change the occupant of that seat for the next two years. But spending to support redistricting can change every House race in the state for the next decade.
Financial support from groups accepting dark money has been crucial to recent gerrymandering efforts, and redistricting groups in most states can take unlimited amounts of money without disclosing the source. In early 2010, the Republican State Leadership Committee created the Redistricting Majority Project (“REDMAP”) with the goal of redrawing electoral maps to benefit Republican candidates.23 In 2010, REDMAP raised more than $30 million—much of it dark money—to elect majorities in state legislatures in battleground states including Ohio, Michigan, North Carolina, Pennsylvania, and Wisconsin.24 After gaining control of state legislatures, REDMAP then expanded its efforts to influence the redistricting of those states’ congressional seats.25
The Republicans’ redistricting efforts were largely supported by “opaque nonprofits funded by dark money, supposedly nonpartisan campaign outfits, and
23 See The Redistricting Majority Project, http://www.redistrictingmajorityproject.com/ (last visited Aug. 31, 2017) (“Republicans have an opportunity to create 20–25 new Republican Congressional Districts through the redistricting process over the next five election cycles, solidifying a Republican House Majority.”); Olga Pierce, et al., How Dark Money Helped Republicans Hold the House and Hurt Voters, ProPublica (Dec. 21, 2012), https://www.propublica.org/article/how-dark-money-helped-republicans-hold-the-house-and-hurt-voters.
24 Pierce, et al., supra note 23.
25 Id.
12

millions in corporate donations to achieve Republicanfriendly maps throughout the country.”26 Among the organizations funding REDMAP were groups with such seemingly neutral names as American Justice Partnership, Fair and Legal Redistricting for North Carolina, and Michigan Redistricting Resource Institute.27 The neutral names disguise these organizations’ underlying partisan agendas.28
The strategy behind this effort was clear, and the political intent unmistakable. In 2010, one of REDMAP’s early boosters wrote in the Wall Street Journal that Republicans were targeting state legislatures because “[h]e who controls redistricting can control Congress.”29 REDMAP’s own 2012 Summary Report highlighted how their “strategy of targeting state legislative races in 2010 led to a Republican U.S. House

26 Id. (“Two tobacco giants, Altria and Reynolds, each pitched in more than $1 million to the main Republican redistricting group, as did [Karl] Rove's super PAC, American Crossroads; Walmart and the pharmaceutical industry also contributed. Other donors, who gave to the nonprofits Republicans created, may never have to be disclosed.”).

27 Id.

28 See, e.g., Peter Overby, NPR News Investigations, From Social Welfare Groups, a River of Political Influence (Nov. 5, 2013), http://www.npr.org/2013/11/05/242354030/from-social-welfaregroups-a-river-of-political-influence (describing American Justice Partnership as an organization dedicated to legal reform that has “target[ed] liberal judges for defeat”).

29 Karl Rove, The GOP Targets State Legislatures, Wall St. J.

(Mar.

4,

2010),

https://www.wsj.com/arti-

cles/SB10001424052748703862704575099670689398044.

13

Majority in 2013.”30 REDMAP explained: “Drawing new district lines in states with the most redistricting activity presented the opportunity to solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade.”31
The Democratic Party has also supported its redistricting efforts by accepting “secretive redistricting funding.”32 For example, as noted above, Maryland Democrats gerrymandered congressional districts behind closed doors to preserve their incumbencies while taking aim at the state’s two remaining Republican seats. As former governor Martin O’Malley explained in a deposition: “Part of my intent was to create a map that, all things being legal and equal, would, nonetheless, be more likely to elect more Democrats rather than less.”33 To that end, Democrats hired outside consultants to redraw the district lines. Those consultants later testified that their job was to “see[] if there was a way to get another Democratic district in the state.”34 They succeeded, and Maryland’s two Republican seats shrunk to one.
Democrats have also relied on nonprofit organizations, funded by dark money, for support in redistricting. Like the Republican groups, these groups have
30 The Redistricting Majority Project, 2012 REDMAP Summary Report (Jan. 4, 2013), http://www.redistrictingmajorityproject.com/.
31 Id.
32 Pierce, et al., supra note 23.
33 Daley, supra note 19.
34 Id.
14

nonpartisan-sounding names, such as Democracy Alliance, America Votes, and Patriot Majority USA, that belie their political agendas.35 Patriot Majority USA, a 501(c)(4) social welfare group not required to publicly disclose its donors, reportedly raised $30 million in 2014 and “was a major player in the Democrats’ failed bid to retain control of the U.S. Senate” in 2014.36 Unions have reportedly donated to Patriot Majority USA,37 as well as to “an array of ‘dark money’ liberal advocacy groups including the 501(c)(4) arms of the Center for American Progress, National Employment Law Project, and Partnership for Working Families—which aren’t required to report who funds them.”38
As troubling as these examples are, amici expect that the influence of special interests groups and dark
35 See, e.g., About, America Votes (last accessed Aug. 31, 2017), https://americavotes.org/about/ (describing America Votes as “the coordination hub of the progressive community,” with “an eye on redistricting”); Richard Berman, The Democrats’ Dark Money Hypocrisy, The Hill (May 5, 2016), http://thehill.com/blogs/congress-blog/politics/278881-the-democrats-dark-money-hypocrisy; Matea Gold, Wealthy Donors on Left Launch New Plan to Wrest Back Control in the States, Wash. Post (Apr. 12, 2015), https://www.washingtonpost.com/politics/wealthy-donors-on-left-launch-new-plan-to-wrest-back-control-in-the-states/2015/04/12/ccd2f5ee-dfd3-11e4-a1b82ed88bc190d2_story.html?utm_term=.94e5ec28352c (describing Democracy Alliance as “a cadre of wealthy liberal donors”).
36 Michael Beckel, Secret Donors Fuel Democratic Political Powerhouse, Ctr. for Pub. Integrity (Nov. 18, 2015), https://www.publicintegrity.org/2015/11/18/18875/secret-donors-fuel-democraticpolitical-powerhouse.
37 Id.
38 Berman, supra note 35.
15

money in redistricting efforts will increase unless this Court steps in. One recent study found that 38 times more dark money was spent during the 2014 elections than in 2006.39 And political groups are gearing up for the next round of redistricting. Democrats are already planning for a 2020 redistricting campaign, including through groups funded by “dark money,”40 and Republicans will surely do the same.
This is just one of many ways in which dark money plagues America’s elections, but it is a significant one.
C. Partisan Gerrymandering Produces Uncompetitive And Unrepresentative Districts That Have A Corrosive Effect On Our Democracy.
“Something is rotten in the state of Denmark,” wrote Shakespeare to convey the notion of disease in the body politic. Here too, there is a powerful sense among Americans that something has gone awry.41
39 Chisun Lee, et al., Brennan Ctr. for Justice, Secret Spending in the States 3 (June 26, 2016), https://www.brennancenter.org/publication/secret-spending-states.
40 Id.
41 These concerns are well-founded, with recent studies illustrating the high rewards (a return of nearly 1000-1 for lobbying expenditures) and high stakes (over $700 billion per year for one subsidy) for America’s influencer class. See Bill Allison & Sarah Harkins, Sunlight Found., Fixed Fortunes: Biggest Corporate Political Interests Spend Billions, Get Trillions (Nov. 17, 2014), https://sunlightfoundation.com/2014/11/17/fixed-fortunes-biggest-corporate-political-interests-spend-billions-get-trillions/; Laurence Cockroft & Anne-Christine Wegener, Unmasked 14
16

The increase in partisan gerrymandering following Vieth, fueled by dark money contributions and advanced technology, distorts our representative democracy and pollutes Americans’ faith in their political institutions. This Court has long recognized that “[t]he true principle of a republic is[] that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U.S. 486, 540–41 (1969) (quoting Alexander Hamilton in 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). The current practice of partisan gerrymandering undermines that principle. As one commentator recently observed, “[i]t used to be that the idea was, once every two years voters elected their representatives, and now, instead, it’s every ten years the representatives choose their constituents.”42
As Republicans and Democrats battle each other to control redistricting, the real losers are the American people. Sending delegations to Congress that do not conform to the results of elections leads to disinterested and justifiably disillusioned voters. Ordinary voters may not identify the dark money forces that have separated a state delegation’s makeup from that state’s election results, but they surely see that some dark force is intermediating to create that anomalous
(2017) (showing a 750-1 ratio); see also http://priceofoil.org/fossilfuel-subsidies/.
42 See Jeffrey Toobin, Drawing the Line, The New Yorker, Mar. 6, 2006, at 35 (quoting Stanford Law School Professor Pamela Karlan); see also Peter H. Shuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325, 1329 (1987) (gerrymandering raises “profound issues concerning the legitimacy of our representational structures”).
17

outcome. Realizing that their votes have been gerrymandered into near-meaninglessness, many Americans are checking out of the process entirely, as reflected by the lowest voter turnout in 2014 in any election since 1942.43
When gerrymandering is used to establish safe districts, the proliferation of those safe seats leads to a more polarized and dysfunctional political climate. In safe districts, an incumbent’s biggest threat is often a primary challenge from a more extreme member of his or her own party. This threat makes legislators reluctant to work across the aisle and support bipartisan legislation. Gerrymandering thus worsens “the hyper-partisanship that paralyzes our politics and governance.”44
Public trust in our democracy is further weakened by the lack of transparency in how redistricting is funded. The influx of dark money compounds this concern, replacing the will of the people with the will of anonymous special interests and wealthy donors. Dark money also increases the risk that politicians become beholden to the special interest groups funding redistricting efforts, rather than to their constituents. Recent surveys have shown that a significant majority of Americans believe “it doesn’t matter if they vote,” because politics and elections are controlled by
43 Brian Klaas, The Despot’s Accomplice: How the West is Aiding and Abetting the Decline of Democracy 184 (2016).
44 Fred Dews, A Primer on Gerrymandering and Political Polarization, Brookings (July 6, 2017), https://www.brookings.edu/blog/brookings-now/2017/07/06/a-primer-ongerrymandering-and-political-polarization/.
18

wealthy interests.45 This sentiment is bipartisan: “Democrats and Republicans generally agree that people like them, working people, the poor, and small businesses don’t have enough power in Washington, and that political lobbyists, Wall Street, large businesses, and the wealthy have too much influence.”46 And not without reason: studies have found that “the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”47
Americans are particularly troubled by how special interest groups are helping to gerrymander state and federal legislative districts. Across party lines, 64% of Americans believe that redistricting is a tactic to take power away from voters.48 71% of Americans believe that “those who stand to benefit from redrawing congressional districts should not have a say in
45 See, e.g., Betsy Cooper, et al., PRRI, The Divide Over America’s Future: 1950 or 2050? Findings From the 2016 American Values Survey (Oct. 25, 2016), https://www.prri.org/research/poll-1950s2050-divided-nations-direction-post-election/; Views on Power and Influence in Washington, Assoc. Press-NORC Ctr. for Pub. Affairs Research (2017), http://www.apnorc.org/projects/Pages/Power-and-Influence-in-Washington.aspx [hereinafter AP-NORC Poll].
46 AP-NORC Poll, supra note 45.
47 See Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Perspectives on Politics, no. 3, Sept. 2014, at 564, 575.
48 Americans Across Party Lines Oppose Common Gerrymandering Practices, The Harris Poll (Nov. 7, 2013), http://www.theharrispoll.com/politics/Americans_Across_Party_Lines_Oppose_Co mmon_Gerrymandering_Practices.html.
19

how they are redrawn.”49 One Wisconsin senator who voted for the redistricting plan at issue recently expressed remorse for his vote, explaining, “When you talk to people about our government, the thing they tell you is it’s rigged.”50 Indeed, the process of redistricting merits little faith because drawing district lines is “among the most easily manipulated and least transparent systems in democratic governance.”51
Finally, Americans are not the only ones who have observed how partisan gerrymandering has undermined our political system. America’s democracy has long stood as a model to the world, a “city on a hill.”52 Partisan gerrymandering now threatens that role. A scholar of comparative politics recently remarked that “the American model is not the only viable one out there, and . . . other nations may not be insane to look at it with some sense of distaste.”53 Rooted in part in our use of partisan gerrymandering, this view creates “knock-on effects that damage the core of democracy.”54
That study of different democratic countries concluded that America’s extreme gerrymandering threatens the very fabric of our democracy and
49 Id.
50 Bazelon, supra note 2.
51 Dews, supra n. 44.
52 See Governor John Winthrop, A Model of Christian Charity (1630); President Ronald Reagan, A Vision for America, Election Eve Address (Nov. 3, 1980).
53 Klaas, supra note 43, at 188.
54 Id. at 183.
20

“mak[es] a mockery of the one person, one vote principle that is the granite ridge to which democracy should be anchored.”55 We agree.
II. The Court Should Curb The Rise Of Partisan Gerrymandering By Affirming The District Court’s Decision.
When it comes to partisan gerrymandering, this Court can no longer remain on the sidelines. In Reynolds v. Sims, the Court explained that “[a]s long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.” 377 U.S. 533, 562 (1964). The Court should reaffirm this principle by holding that partisan gerrymandering claims are justiciable and that Wisconsin’s plan violates the Constitution.
The district court’s test—requiring evidence of discriminatory intent, a large and durable discriminatory effect, and a lack of a legitimate justification— provides a clear roadmap for lower courts, grounded in this Court’s precedents. The test addresses this Court’s prior concerns by articulating a clear standard that avoids sweeping in legitimate political conduct. The district court’s test is manageable, and, more importantly, will impose a needed threat of judicial accountability to constrain future partisan gerrymandering efforts.
55 Id. at 185 (internal quotation marks omitted).
21

The first element of the district court’s test—discriminatory intent—provides a workable standard that addresses the concerns expressed in Vieth. The district court required an intent “to place a severe impediment on the effectiveness of . . . votes . . . on the basis of . . . political affiliation.” Jurisdictional Statement App. 109a–110a. Unlike the proposed intent requirements addressed in Vieth, this test captures only those political classifications “applied in an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. 84a (quoting 541 U.S. at 307 (Kennedy, J., concurring)). The test is also a workable one, allowing courts to consider different forms of intent evidence including admissions, rejection of more neutral plans for no apparent reason, secrecy and lack of transparency surrounding the redistricting process, and unwillingness to include minority party voices. When politicians admit that their efforts to redraw district lines were intended to create undemocratic outcomes, courts should hold them accountable.56
56 A State ordinarily should find safe harbor against any allegation that it acted with discriminatory intent when it entrusts redistricting to an independent redistricting commission. See, e.g., Ariz. State Legislature, 135 S. Ct. at 2652. As this Court recognized implicitly in Gaffney v. Cummings, 412 U.S. 735, 752 (1973), safe harbors could also include districts designed by “a three-[person] bipartisan Board” rather than a single-party-controlled state legislature, or other processes that incorporate minority voices and promote public scrutiny and transparency through openness and publication of proposed and revised maps. When states take steps like these to protect redistricting from partisan influence, they ought rightly to insulate themselves from cries of foul play.
22

The second element—discriminatory effect—also addresses the concerns articulated in Vieth. The district court required a showing that the redistricting plan had the “effect” of diluting votes based on political affiliation. See Jurisdictional Statement App. 107a–110a. Unlike in prior cases, plaintiffs here focus on dilution of their votes due to their political affiliations, rather than on any claim to proportional representation. Cf. Vieth, 541 U.S. at 308 (Kennedy, J., concurring) (rejecting fairness principle based on a proportionality theory). The Court has recognized that “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively . . . rank[s] among our most precious freedoms.” Anderson v. Celebrezze, 460 U.S. 780, 787 (1983). Vote dilution is a firmly rooted constitutional injury and provides a sound basis for the discriminatory effect test. And as Appellees demonstrate, experts can now readily measure the dilutive effects of partisan gerrymandering through election results, partisan bias, the “efficiency gap,” and sensitivity testing. These are exactly the sort of advancements Justice Kennedy envisioned when he spoke of “new technologies [that] may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose.” Vieth, 541 U.S. at 312–13.
The final factor—lack of a legitimate justification—also speaks to Vieth’s concerns. This part of the test ensures that courts can distinguish between district maps drawn to achieve legitimate objectives and those based on impermissible partisan considerations. For example, this element will defeat claims where a
23

non-partisan explanation, such as geographical distribution of voters, accounts for the map’s alleged discriminatory effect. Jurisdictional Statement App. 217a–218a. This element appropriately guarantees that legitimate legislative decisions will not be lumped in with naked retaliation based on party affiliation.
The Court should affirm the district court’s test. But even if the Court concludes that the test has not adequately resolved the concerns expressed in Vieth, the Court should, at a minimum, hold that partisan gerrymandering claims are justiciable. As discussed above, the Vieth plurality’s retreat from Davis v. Bandemer, 478 U.S. 109 (1986), has resulted in more frequent and extreme gerrymandering at the expense of our democracy. See supra Part I.
Moreover, the plurality’s reasons for deeming partisan gerrymandering claims non-justiciable are unpersuasive. For example, the plurality relied in part on Congress’s power to make or alter redistricting lines. Vieth, 541 U.S. at 275–77. But the Constitution leaves room for both Congress and the courts to remedy the problem of partisan gerrymandering. Nothing in Article I, Section 4 provides Congress with exclusive authority to modify congressional districts. And the question for courts is not what districts should look like, but whether partisan forces have manipulated the process to dilute votes based on political affiliation.
Even if the democratic process could prevent excess partisan gerrymandering in some cases, the Court must still step in where, as here, the democratic process has been used to violate citizens’ fundamental
24

rights. See League of United Latin Am. Citizens v. Perry (LULAC), 543 U.S. 399, 415 (2006) (Kennedy, J.) (“Our precedents recognize an important role for the courts when a districting plan violates the Constitution.”); Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015) (“[T]he Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”).
The Vieth plurality incorrectly suggested that Congress alone can solve the problem of partisan gerrymandering. The facts on the ground since Vieth demonstrate that the political process cannot provide an adequate solution. Judicial review is a necessary ingredient to restoring our democracy. This Court should hold that partisan gerrymandering claims are justiciable and that the Wisconsin redistricting plan is unconstitutional.
CONCLUSION For the foregoing reasons, and those in Appellees’ brief, the Court should affirm the district court’s decision.
25

Respectfully submitted,

Kathryn Cahoy COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94065 (650) 632-4700 KeAndra Barlow COVINGTON & BURLING LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067 (424) 332-4800

Mark W. Mosier Counsel of Record
Ryan Mowery Alec Webley COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 MMOSIER@COV.COM (202) 662-6000
Counsel for Amici Curiae

September 2017

26

 
 No. 16-1161
IN THE
Supreme Court of the United States
BEVERLY R. GILL, ET AL.,
Appellants, v.
WILLIAM WHITFORD, ET AL.,
Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICI CURIAE HISTORIANS IN SUPPORT OF APPELLEES
CLIFFORD M. SLOAN Counsel of Record
BRENDAN B. GANTS SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Ave., NW Washington, DC 20005 (202) 371-7000 cliff.sloan@skadden.com

i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT.....................................3
ARGUMENT ...............................................................5
I. THE FRAMERS EXPRESSED A VISION OF REPRESENTATIVE DEMOCRACY THAT REQUIRES A CLOSE CORRESPONDENCE BETWEEN THE VOTING PUBLIC AND ITS LEGISLATIVE ASSEMBLIES ..................................................5
A. The American Vision of Representative Democracy Has Been Based On a Legislature that Reflects the Body Politic and is Responsive to its Demands ...........................................................5
B. The Framers Rejected “Corruption” of Representation in the British System and Sought to Prevent Similar Undemocratic Entrenchment By Factions in the American System..................10
C. The First Amendment Was Intended to Protect the Framers’ Representative Ideals by Ensuring the People Could Hold Government Accountable ......................16

ii
D. The Fourteenth Amendment Reflects the Framers’ Vision of Democracy and Associational Rights and Extends it to the States........................................................20
II. PARTISAN GERRYMANDERING HAS BEEN FORCEFULLY DENOUNCED THROUGHOUT AMERICAN HISTORY AS AN UNCONSTITUTIONAL ABUSE OF POWER ...........................................................23
III. IN THE EXTREME FORM IT TAKES TODAY, PARTISAN GERRYMANDERING POSES A SEVERE THREAT TO AMERICAN IDEAS OF REPRESENTATION AND ASSOCIATIONAL RIGHTS ..........................36
CONCLUSION ..........................................................43
APPENDIX OF AMICI CURIAE....................... App. 1

iii TABLE OF AUTHORITIES
Federal Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................... 20
Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) ............................................... 19
Baker v. Carr, 369 U.S. 186 (1962) ............................................... 35
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ............................................... 19
Colegrove v. Green, 328 U.S. 549 (1946) ............................................... 35
Cooper v. Harris, 137 S. Ct. 1455 (2017) ........................................... 30
Davis v. Bandemer, 478 U.S. 109 (1986) ............................................... 37
Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ..................................... 35, 39
INS v. Chadha, 462 U.S. 919 (1983) ............................................... 23
Kyllo v. United States, 533 U.S. 27 (2001) ................................................. 42

iv Reynolds v. Sims,
377 U.S. 533 (1964) ............................... 9, 23, 39, 42
Stromberg v. California, 283 U.S. 359 (1931) ............................................... 19
Vieth v. Jubelirer, 541 U.S. 267 (2004) ..................................... 9, 24, 35
Wesberry v. Sanders, 376 U.S. 1 (1964) ................................................... 10
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) ............ 38, 39
Williams v. Rhodes, 393 U.S. 23 (1968) ................................................. 20
State Cases
Parker v. State ex rel. Powell, 32 N.E. 836 (Ind. 1892) ......................................... 33
State ex rel. Attorney General v. Cunningham, 51 N.W. 724 (Wis. 1892) ........................................ 33
State Constitutions and Declarations of Rights
DECLARATION OF RIGHTS (DE. 1776) ......................... 12
DECLARATION OF RIGHTS (VA. 1776) ......................... 12
MD. CONST. (1776) ..................................................... 12
N.H. CONST. (1784) ................................................... 12

v
N.Y. CONST. (1777) .................................................... 12
PA. CONST. (1776) ...................................................... 12
Other Authorities
4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (J. Elliot ed., 1854)............................18
Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245 (1961) ............................. 19
ANTHONY J. MCGANN ET AL., GERRYMANDERING IN AMERICA (2016). ................ 38
BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967) ..................... 5, 6, 11
CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT (2003)...................................................... 16
Charles O. Lerche, Jr., Congressional Interpretations of the Guarantee of a Republican Form of Government During Reconstruction, 15 J. of Southern Hist. 192 (1949) ............................ 21
Charles Sumner, The Equal Rights of All (Feb. 5-6, 1866), in XIII CHARLES SUMNER: HIS COMPLETE WORKS (2d ed. 1900) ........................... 21
DAILY OHIO ST. J (Aug. 12, 1842) ………………..…..34

vi
Dave Daley, How Democrats Gerrymandered Their Way to Victory in Maryland, THE ATLANTIC, June 25, 2017 ...................................... 41
EDMUND S. MORGAN, THE BIRTH OF THE REPUBLIC, 1763-89 (4th ed. 2013) .......................................................... 5
ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER (1907) .............................................................passim
ERIK J. ENGSTROM, PARTISAN GERRYMANDERING AND THE CONSTRUCTION OF AMERICAN DEMOCRACY (2013)................................................ 34
GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (2d ed. 1998)……. ........................passim
J. MORGAN KOUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION (1999). ................. 36
JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996)........................................ 6, 10
James Madison, Report on the Virginia Resolutions (Jan. 1800), in 5 THE WRITINGS OF

vii
JAMES MADISON (Gaillard Hunt ed., 1900)...................................................................... 18
James Madison, Speech in Congress on the Removal Power (June 8, 1789) ............................................ 17
Jerry H. Goldfeder & Myrna Perez, A Tale of (at Least) Two Gerrymanders, N.Y. L. J. (June 22, 2017)..................................... 37
John Adams, Thoughts on Government (1776), in I AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA: 1760-1805 (Charles S. Hyneman & Donald Lutz eds., 1983) .......... 7, 12
John Bingham, One Country, One Constitution, and One People (Feb. 28, 1866)................................... 22
JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION (1989) ........................... 5, 6
Karl Rove, The GOP Targets State Legislatures, WALL ST. J., Mar. 4, 2010 ..................................... 40
KIRSTEN OLSEN, DAILY LIFE IN 18THCENTURY ENGLAND ............................................... 11
Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 THE PAPERS OF JAMES MADISON (William T. Hutchinson et al. eds., 1962)................................ 17

viii
MARC KRUMAN, BETWEEN AUTHORITY AND LIBERTY: STATE CONSTITUTION MAKING IN REVOLUTIONARY AMERICA (1997) ....................... 7, 8
Melancton Smith, Letters from the Federal Farmer, II COMPLETE ANTI-FEDERALIST (H. Storing ed., 1981).................................................... 9
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831 (2015) .................................................................... 37
PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788 (2010) .................................................. 14
PENNSYLVANIA AND THE FEDERAL CONSTITUTION 1787-1788 (J. McMaster & F. Stone eds., 1888) ......................................... 18
PETER H. ARGERSINGER, REPRESENTATION AND INEQUALITY IN LATE NINETEENTHCENTURY AMERICA 19 (2012 ed.) .............. 30, 31, 32
Peter H. Argersinger, The Transformation of American Politics: Political Institutions and Public Policy, 1865-1910, in CONTESTING DEMOCRACY: SUBSTANCE AND STRUCTURE IN AMERICAN POLITICAL HISTORY, 1775-2000 (Byron E. Shafer & Anthony J. Badger eds., 2001) ......................... 29

ix
President Harrison’s Third Annual Message (Dec. 9, 1891), in IX MESSAGES AND PAPERS OF THE PRESIDENTS (James D. Richardson ed., 1902)...................................................................... 30
Results of the Gerrymander, INDIANAPOLIS J., Dec. 1, 1892 …………………....31
ROSEMARIE ZAGARRI, THE POLITICS OF SIZE (1987)................6, 8, 9, 27, 36
The Gerry-Mander, or Essex South District Formed into a Monster!, SALEM GAZETTE, Apr. 2, 1813 .......................................... 25
Statement of Rep. James A. Garfield, 41 Cong. Globe 4737, 41ST CONG. 2D SESS. – NO. 296 (June 23, 1870) ........................... 29
THE FEDERALIST PAPERS……………………….9, 15, 40
The Gerrymander, Supplement, Ohio Star, Feb. 22, 1854....................................... 28
Fruits of Democratic Usurpation, THE INDIANAPOLIS J., Jan. 16, 1889............................. 30
THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1911)........................................................passim
Theophilus Parsons, The Essex Result (1778), in I AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA: 1760-1805 ..................................... 7

x
Thomas Paine, Common Sense, in TRACTS OF THE AMERICAN REVOLUTION 400 (Merrill Jensen ed. 1967) ................................ 7
WEEKLY OHIO ST. J. (Aug. 10, 1842) ........................ 28
Results of the Gerrymander, WHEELING DAILY INTELLIGENCER, Sept. 22, 1894 ................. 31
Rebuke to Gerrymandering, WOOD COUNTY REPORTER, Mar. 31, 1892 ....................... 31

1
INTEREST OF AMICI CURIAE
Amici are historians with a scholarly interest in the origins and adoption of the Constitution, including a particular interest in the development and evolution of American ideas about political representation. Amici believe that a historical understanding of these ideas, and of the practice and perception of various forms of gerrymandering in American history, may assist the Court in its analysis of the legal issues presented in this case.1 Amici, whose professional background and relevant publications are set forth in the Appendix, are:
Peter H. Argersinger, Professor of History, Southern Illinois University;
Carol Berkin, Presidential Professor of History, Emerita, Baruch College and the Graduate Center of the City University of New York;
Holly Brewer, Burke Professor of American History, University of Maryland;
John Brooke, Arts & Sciences Distinguished Professor of History and Director of the Center for Historical Research, Ohio State University;
1 Pursuant to Supreme Court Rule 37.6, counsel for amici certify that they authored this brief in its entirety and that no party or its counsel, nor any other person or entity other than amicus or its counsel, made a monetary contribution to this brief's preparation or submission. The parties have granted blanket consent to the filing of amicus briefs.

2
Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University;
Joanne B. Freeman, Professor of History and American Studies, Yale University;
Jonathan Gienapp, Assistant Professor of History, Stanford University;
Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty and Director of the Program in American Studies, Princeton University;
Alexander Keyssar, Matthew W. Stirling, Jr. Professor of History and Social Policy, Harvard University;
James Kloppenberg, Charles Warren Professor of American History, Harvard University;
Gerald F. Leonard, Professor of Law and Law Alumni Scholar, Boston University School of Law;
Peter S. Onuf, Thomas Jefferson Memorial Foundation Professor Emeritus, University of Virginia;
Jack Rakove, William Robertson Coe Professor of History and American Studies, and Professor of Political Science, Stanford University;
John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law and Professor of History, Yale University; and
Rosemarie Zagarri, University Professor and Professor of History, George Mason University.

3
SUMMARY OF ARGUMENT
Among the central questions confronted by the Framers of our Constitution was how best to realize in the new American republic the idea of actual representation. Having rejected and cast off the British notion of “virtual representation,” Americans demanded a close correspondence between the sovereign people and their legislative assemblies. Americans also were concerned that legislative factions might entrench themselves in power, similar to forms of corruption that prevailed in Parliament.
This bedrock American principle of actual representation not only permeated constitutional debates in the Founding era but also underlies the First Amendment, which the Framers viewed as essential to ensuring representatives’ accountability to their constituents. The Fourteenth Amendment built on the Framers’ vision by strengthening actual representation and extending it to the states.
Partisan gerrymanders are of two types: drawing districts of unequal population size and manipulating district lines for partisan ends. The use of either or both of these methods can create profound distortions and undemocratic entrenchment of one political group or party. Both types of gerrymanders have been employed at various times throughout American history – sometimes separately, sometimes in combination. From a historical perspective, both types of gerrymanders conflict with the vision of actual representation that was central to the Framers.

4
Contrary to some misconceptions, although partisan gerrymanders have occurred at various times, they never have been regarded as an acceptable feature of American democracy. Rather, consistently since its inception, partisan gerrymandering has been forcefully denounced as unconstitutional, as a form of corruption that threatens American democracy, and as an infringement on voters’ rights. Even those who engaged in partisan gerrymandering have generally not defended the practice as sound or meritorious or democracy-enhancing; rather, the defense typically has been simply that the other party did it before or would do it if given the opportunity. In short, any claim that partisan gerrymandering has been regarded as an acceptable characteristic of our democratic system is demonstrably ahistorical.
Moreover, partisan gerrymandering as practiced today differs dramatically from the practice of prior eras in ways that significantly heighten the serious concerns that have long been raised about the potential impact of partisan gerrymandering on representative democracy in America.

5
ARGUMENT
I. THE FRAMERS EXPRESSED A VISION OF REPRESENTATIVE DEMOCRACY THAT REQUIRES A CLOSE CORRESPONDENCE BETWEEN THE VOTING PUBLIC AND ITS LEGISLATIVE ASSEMBLIES
A. The American Vision of Representative Democracy Has Been Based On a Legislature that Reflects the Body Politic and is Responsive to its Demands
The American Revolution was in no small part a rejection of the British theory of “virtual representation.” The British theory held that those communities which sent no representatives to Parliament – including the American colonies – nevertheless were represented because members of the House of Commons were obliged to consider the greater good when legislating.2 To the Founding generation, this idea was an obvious sham and an object of ridicule.3 Americans, whose colonial assemblies generally extended representation to new communities as they were organized, believed
2 See JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 50-62 (1989).
3 See, e.g., BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 167, 169 (1967) (virtual representation was met in the colonies “at once with flat and universal rejection, ultimately with derision”); EDMUND S. MORGAN, THE BIRTH OF THE REPUBLIC, 1763-89, 20, 24 (4th ed. 2013) (the colonists “roundly rejected” the idea).

6
instead in a system of actual representation.4 In the emerging American vision of representative democracy,5 legislative assemblies were meant to reflect the broader electorate and be responsive to its demands,6 with the vote serving to bind representatives closely to their constituents.7 While omissions from the electorate now seem glaring (e.g., exclusions by race, gender, and economic circumstance), the core conception of a close correspondence between the electorate and the assembly was strong and dominant.
As the Revolutionary War began and colonists considered the adoption of new constitutions, influential publications expounded this vision of government. For example, in Thoughts on
4 REID, supra, at 128-36; BAILYN, supra, at 161-75.
5 See, e.g., BAILYN, supra, at 161 (“The question of representation was the first serious intellectual problem to come between England and the colonies.”).
6 See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 204 (1996) (discussing the concept of the legislature as a “miniature” or “transcript” of society and its significance to ensuring representatives would be accountable to their constituents).
7 See, e.g., ROSEMARIE ZAGARRI, THE POLITICS OF SIZE 18 (1987) (“actual representation implied that the legislature should be a microcosm of the larger society – that legislators should reflect the particular needs, wishes, and desires of those who elected them”); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, 182 (2d ed. 1998) (in actual representation “[t]he process of voting was not incidental to representation but was at the heart of it”).

7
Government, John Adams wrote that a legislative assembly “should be in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them.”8 Thomas Paine likewise argued in Common Sense that the legislature should act “in the same manner as the whole body [of the people] would [act] were they present.”9
In a system of actual representation, of course, this vision of a representative assembly as a reflection of the body politic is achievable only if each component part is entitled to fair and equal representation. For example, Theophilus Parsons argued in The Essex Result that “[t]he rights of representation should be so equally and impartially distributed” that the representatives “should be an exact miniature of their constituents,” that is of “the whole body politic, with all its property, rights, and privileges, reduced to a small scale, every part being diminished in just proportion.”10
8 John Adams, Thoughts on Government (1776), in I AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA: 1760-1805, 401, 403 (Charles S. Hyneman & Donald Lutz eds., 1983).
9 Thomas Paine, Common Sense, in TRACTS OF THE AMERICAN REVOLUTION 400, 404 (Merrill Jensen ed. 1967).
10 Theophilus Parsons, The Essex Result (1778), in I AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA: 1760-1805, 479, 497. To be sure, the Founding generation debated what was the relevant unit of democracy – whether equality should be defined on the basis of individual voters (as in the modern one-person, one-vote standard), or by community, or based on taxation. See, e.g., MARC KRUMAN, BETWEEN AUTHORITY AND LIBERTY: STATE CONSTITUTION MAKING IN (cont’d)

8
This vision of representation featured prominently in the Constitutional Convention. James Wilson declared, for example, that “[r]epresentation is made necessary only because it is impossible for the people to act collectively,” and a Legislature being necessary for this purpose, it “ought to be the most exact transcript of the whole Society.”11 Anti-Federalists agreed. George Mason, for instance, argued that “[t]he requisites in actual representation are that the Reps. should sympathize with their constituents; shd. think as they think, & feel as they feel.”12
This vision of representation also was central to the public debates regarding ratification of the Constitution. Although competing advocates disputed whether the new Congress could effectively function as a “miniature” of the body politic, the conception of a close correspondence between the electorate and the assembly was common ground that framed the debate. In response to antiFederalist arguments that Congress would be too small to provide “a full and equal representation of
________________________ (cont’d from previous page)
REVOLUTIONARY AMERICA 65-76 (1997); ZAGARRI, supra, at 36-60; WOOD, supra, at 170-72. But the fundamental principle that equal representation was necessary to ensure that the legislature actually represented the diverse needs and views of the body politic commanded widespread adherence.
11 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 132-33 (Max Farrand ed., 1911) (“RECORDS”).
12 Id. at 133-34.

9
the people,”13 Federalists emphasized their agreement that a republican government must “be derived from the great body of the society” and must be kept “in dependence on the people,”14 and pointed to the fact that representation would be proportional to population in the House of Representatives.15 As a result, they argued, the new government would not allow the abuses of power in the British system, where factions were able to unjustly entrench electoral power.16
The Framers’ vision of representative democracy centered on actual representation has long been reflected in this Court’s jurisprudence. See, e.g., Reynolds v. Sims, 377 U.S. 533, 565 (1964) (“legislatures . . . should be bodies which are collectively responsive to the popular will”); id. (“the Constitution demands[] no less” than “that each citizen have an equally effective voice in the election of members of his state legislature”) (emphasis added); see also, e.g., Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring in the judgment) (“The object of districting is to establish ‘fair and effective representation for all citizens.’” (quoting Reynolds, 371 U.S. at 565-68)).
13 Melancton Smith, Letters from the Federal Farmer, in II COMPLETE ANTI-FEDERALIST 230, 230 (H. Storing ed., 1981).
14 THE FEDERALIST NOS. 37, 39 (James Madison).
15 See ZAGARRI, supra, at 102.
16 See id.

10
B. The Framers Rejected “Corruption” of Representation in the British System and Sought to Prevent Similar Undemocratic Entrenchment By Factions in the American System
The Framers were deeply concerned by the various forms of “corruption” that effectively defeated equal representation in Parliament.17 As this Court has noted, the delegates to the Constitutional Convention
were quite aware of what Madison called the ‘vicious representation’ in Great Britain, whereby ‘rotten boroughs’ with few inhabitants were represented in Parliament on or almost on a par with cities of greater population. Wilson urged that people must be represented as individuals, so that America would escape the evils of the English system under which one man could send two members of Parliament to represent the borough of Old Sarum while London’s million people sent but four.
Wesberry v. Sanders, 376 U.S. 1, 14-15 (1964). Americans also knew that “pocket boroughs,” with small numbers of voters easily controlled by a
17 See, e.g., RAKOVE, supra, at 208-12.

11
dominant interest or aristocrat, were another tool the Crown used to defeat actual representation.18

To the Founding generation, the corruption in the

parliamentary system was not merely an issue of

numbers and suboptimal representation. Rather, it

was central to the experience of unjust subjugation

that led to the Revolutionary War.19 The Framers

believed that the legitimacy of governments created

in the wake of that war depended on protecting the

system of representation from such entrenched

interests.

Edmund Randolph warned the

Constitutional Convention, “[i]f a fair representation

of the people be not secured, the injustice of the

Govt. will shake to its foundations.”20 Against a

proposal that the established Eastern states be

entitled to a majority in the House of

Representatives even after the rapidly growing

Western territories entered the Union, George

Mason warned that such “degrading

discriminations” would not be tolerated and would

risk a revolt.21

The Framers also knew the danger to fair and equal representation that legislative factions could pose if they were able to entrench themselves in

18 See, e.g., KIRSTEN OLSEN, DAILY LIFE IN 18TH-CENTURY ENGLAND 7 (1999).
19 See, e.g., WOOD, supra, at 166; BAILYN, supra, at 323.
20 RECORDS at 580. 21 Id. at 578-79.

12
power regardless of the shifting views of the public. Madison identified England’s boroughs as a “striking example” among others of inequitable governments in which a faction was able to block reforms that might dislodge it from its disproportionate and undemocratic power.22 Preserving representational equality came to be seen as the most important safeguard against such entrenchment.23 John Adams argued in Thoughts on Government that, to prevent “the unfair, partial, and corrupt elections” of the English system, “equal interests among the people should have equal interests” in the legislatures.24 In response to similar concerns, several states included in their constitutions plans for periodic adjustments of representation.25 Several states also adopted some form of a declaration “[t]hat the right in the people to participate in the Legislature, is the foundation of liberty and of all free government, and for this end all elections ought to be free and frequent.”26
22 Id. at 584.
23 See WOOD, supra, at 170.
24 Id. (quoting Adams, supra, at 403).
25 See id. at 172 (noting adoption of such provisions in New Jersey, Pennsylvania, New York, Vermont, and South Carolina).
26 See DECLARATION OF RIGHTS § 6 (DE. 1776); MD. CONST. art. V (1776); N.H. CONST. arts. 10, 11 (1784); PA. CONST. arts. IV, VII (1776); N.Y. CONST. art. II (1777); DECLARATION OF RIGHTS arts. V, VI (VA. 1776).

13
At the federal level, concerns about entrenchment played a prominent role in the Constitutional Convention. Edmund Randolph, who introduced the Census Clause (Art. I, sec. 2, cl. 3), argued that it was necessary because the initial apportionment of representatives “placed the power in the hands . . . which could not always be entitled to it,” and “this power would not be voluntarily renounced.”27 George Mason pointedly observed that, without the Clause, “the Legislature would cease to be the Representatives of the people”: if the Legislature was not constrained to redistribute representation in the future so that a majority of the people could elect a majority of the Legislature, then “the power wd be in the hands of the minority, and would never be yielded to the majority,”28 which would “complain from generation to generation without redress.”29
Debates about the relationship between the states and the federal government also frequently highlighted fears that legislative factions on the state or federal level, or both, would use election laws to entrench their power. For example, Madison argued for the Elections Clause (Art. I, sec. 4, cl. 1) on the ground that Congress needed a mechanism to protect its own republican character from state legislatures: they might abuse their discretionary power to conduct elections in a myriad of ways
27 RECORDS at 579.
28 Id. at 586 (emphasis added).
29 Id. at 578.

14
“impossible to foresee,” and “take care so to mould their regulations as to favor the candidates they wished to succeed.”30 Madison also worried that “inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation” in Congress, as areas disproportionately empowered in the states would leverage their power to distort national elections as well.31 Importantly, delegates arguing against Madison did not claim that such entrenchment was a state’s right or somehow acceptable – rather, they countered that the greater fear was that Congress might abuse its power to entrench itself. Indeed, opponents of the Elections Clause argued that it could give Congress the ability to “perpetuate itself indefinitely by canceling elections,” while supporters of the Clause argued it was necessary because state legislatures might do the same.32 Francis Dana emphasized, meanwhile, that each state would be required to do more than simply send a full delegation to Congress – it also had to provide for elections where the people had an “equal influence.”33
In short, Americans at the time of the Founding saw it as imperative that the electoral process be
30 Id. at 240.
31 Id. at 240-41.
32 PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788, 173 (2010).
33 Id. at 174.

15
protected against influences that might infringe upon their right to fair and equal representation,34 particularly by those already in power.35
34 As Appellants and their amici point out, the Framers did not adopt a proportional representation system – a form of government that would have been alien to them – but that does not negate the importance the Framers placed on equal representative rights. Indeed, Appellants and their amici mistakenly rely upon sources which, correctly read, emphasize the importance of that very principle. For example, one brief relies heavily on Federalist 35, in which Alexander Hamilton argued against requiring “that all classes of citizens should have some of their number in the representative body.” Legacy Foundation Br. 11-12, 35-36. The relevant (and important) point for this case, however, is that Hamilton argued against such a requirement on the ground that giving voters a free and equal choice was the best way to ensure that all classes were capably represented and that representatives would heed the views of all their constituents. See THE FEDERALIST NO. 35 (Alexander Hamilton). Indeed, Hamilton argued that “[t]his dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.” Id. (emphasis added). Partisan gerrymandering allows legislators to dramatically weaken, if not sever, this essential dependence by depriving voters of their representational rights.
35 WOOD, supra, at 169.

16
C. The First Amendment Was Intended to Protect the Framers’ Representative Ideals by Ensuring the People Could Hold Government Accountable
Since the Framers’ time, the First Amendment has been closely intertwined with ideas of popular sovereignty and representation. The free exchange of ideas by members of the public and the right of voters to associate to advance their views, unhindered by government interference, are essential protections for actual representation. The First Amendment prohibits government actors from abusing their power to entrench themselves by creating barriers to the exercise of these rights.
The Framers saw free expression and debate as essential to a functioning democracy. For example, during consideration of the Constitution, Hamilton emphasized the close connection between free speech and political representation. In response to the claim of anti-Federalist writer “Brutus” that a republic could be sustained only in homogenous areas, Hamilton stressed that the “constant[] clashing of opinions” would sustain the republic because “differences of opinion, and the jarring of parties in [the legislative] department of the government . . . often promote deliberation and circumspection; and serve to check the excesses of the majority.”36 Unwarranted obstacles to “the jarring of parties” resulting from clashing opinions
36 CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 146 (2003) (quoting Hamilton).

17
run directly counter to this foundational understanding, particularly when such obstacles are imposed by a party in power whose excesses the “clashing of opinions” is meant to check.
In drafting and advocating for the Bill of Rights, Madison sought to assure an anxious public that the republican character of government would be protected from the abusive excesses of an empowered faction that might otherwise erode or destroy it. Observing that “a powerful interested party” would tend to abuse its authority “not less readily” than “a powerful and interested prince,” he sought in drafting the Bill of Rights to declare “political truths” which, if accepted, would tend to “counteract the impulses of interest and passion.”37 Madison delivered a similar message to the First Congress when he proposed an initial draft of the Bill of Rights – including what would become the First Amendment – which he hoped would help prove the proponents of the Constitution “were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism.”38
In a republic defined by actual representation, expression and association related to voting are
37 Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 THE PAPERS OF JAMES MADISON 11:297–300 (William T. Hutchinson et al. eds., 1962).
38 James Madison, Speech in Congress on the Removal Power (June 8, 1789).

18
crucial. As Madison observed in discussing the right to free expression, “the right of electing the members of the Government constitutes more particularly the essence of a free and responsible government.”39 Those presently in power may not abridge First Amendment rights and thereby “derive an undue advantage for continuing themselves in it, which, by impairing the right of election, endangers the blessings of the Government founded on it.”40
In this sense, the right of political expression and association, including through the vote, was an integral part of colonial Americans’ transition from subjects of the Crown to citizens possessing “the absolute sovereignty”41 and employing government officials as “their servants and agents,”42 required to be “at all times accountable to them.”43 It was the device through which the people could express their voice – and have it heeded – regarding the issues of the day and the performance of the government.44
39 James Madison, Report on the Virginia Resolutions (Jan. 1800), in 5 THE WRITINGS OF JAMES MADISON 6:385-401 (Gaillard Hunt ed., 1900).
40 Id. (emphasis added).
41 Id.
42 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 569-70 (J. Elliot ed., 1854) (James Iredell).
43 PENNSYLVANIA AND THE FEDERAL CONSTITUTION 1787-1788, 250 (J. McMaster & F. Stone eds., 1888) (John Smilie).
44 See WOOD, supra, at 164-65.

19
As one scholar has put it, “[t]he revolutionary intent of the First Amendment is . . . to deny to [the government] authority to abridge the freedom of the electoral power of the people.”45 Beyond being one of those expressive activities by which “We, the People” exercise our rights to self-government, the vote is “the official expression of a self-governing [citizen’s] judgment on issues of public policy,” and must be absolutely protected under the First Amendment.46
The Framers’ recognition of the essential connection between the First Amendment and popular sovereignty is deeply rooted in this Court’s jurisprudence. See, e.g., Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011) (“[T]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” (citation omitted)); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”); Stromberg v. California, 283 U.S. 359, 369 (1931) (“A fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” (emphasis added)). So, too, is the related recognition that “among our most precious freedoms” are “the right of individuals to associate
45 Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245, 254 (1961).
46 Id. at 256.

20
for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30 (1968). Consequently this Court has held, for example, that certain restrictions on ballot access violate the First Amendment by “discriminat[ing] against those candidates and – of particular importance – against those voters whose political preferences” do not align with the two major parties. See Anderson v. Celebrezze, 460 U.S. 780, 794 (1983). If those parties may not unfairly or unnecessarily burden the rights of voters not affiliated with them in the ballot-access context, it surely follows that neither party may do so in the context of partisan gerrymandering.
Mechanisms that effectively prevent translating popular will into actual representation by creating a structural impediment to the effective exercise of voters’ rights – such as partisan gerrymandering – are directly contrary to the First Amendment value of political expression and accountability that the Framers recognized as the cornerstone of a vibrant democracy.
D. The Fourteenth Amendment Reflects the Framers’ Vision of Democracy and Associational Rights and Extends it to the States
In the wake of the Civil War, the proponents of the Fourteenth Amendment emphasized the need to strengthen and vindicate the concept of actual representation premised on equal rights. Reconstruction-era Republicans argued vigorously

21
that the Framers’ vision of a republic required equal representation of all citizens, and that this vision must prevail on the state level as well as the federal.47 For example, in his famous “Equal Rights for All” speech, Senator Charles Sumner repeatedly invoked the Framers’ rejection of “virtual representation”48 and argued at length that “[t]he two ideas of Equality and a Right to Representation, so early and constantly avowed by the Fathers, are here again recognized as essential conditions of government; and this is the true definition of a Republic.”49 He and other Republican proponents of the Fourteenth Amendment cast the former slave states as aristocracies and oligarchies which must henceforth be required to respect the Framers’ vision of representational rights.50
Representative John Bingham, perhaps the foremost champion of the Fourteenth Amendment,
47 Notably, President Lincoln had argued in his First Inaugural Address that “[a] majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people” (emphasis added).
48 See Charles Sumner, The Equal Rights of All (Feb. 5-6, 1866), in XIII CHARLES SUMNER: HIS COMPLETE WORKS 118, 159-60, 170-72 (2d ed. 1900).
49 Id. at 184.
50 See, e.g., id. at 208-11; see also Charles O. Lerche, Jr., Congressional Interpretations of the Guarantee of a Republican Form of Government During Reconstruction, 15 J. OF SOUTHERN HIST. 192, 198 (1949).

22
likewise described the Amendment as a way to finish the Framers’ work by securing their actualrepresentation vision on the state level now that the natural barrier to doing so – slavery – had been abolished:
What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all. And I am perfectly confident that that grant of power would have been there but for the fact that its insertion in the Constitution would have been utterly incompatible with the existence of slavery in any State; for although slaves might not have been admitted to be citizens they must have been admitted to be persons. That is the only reason why it was not there.51
In sum, the Fourteenth Amendment advanced the Framers’ vision of representation and, in transforming the federal government’s relationship with the states, extended that vision to the state level as well. This Court has held that, in light of the Fourteenth Amendment, state-level partisan gerrymanders based on unequal population size are
51 John Bingham, One Country, One Constitution, and One People (Feb. 28, 1866).

23
unconstitutional. See Reynolds, 377 U.S. at 565-66. The same conclusion follows where the interference with actual representation – through partisan gerrymandering – is accomplished by other means.

II. PARTISAN GERRYMANDERING HAS BEEN

FORCEFULLY DENOUNCED THROUGHOUT

AMERICAN

HISTORY

AS

AN

UNCONSTITUTIONAL ABUSE OF POWER

Appellants and their amici place significant weight on various instances of partisan gerrymandering that have occurred in American history. But not only has partisan gerrymandering never been regarded as an acceptable part of our constitutional tradition, the practice has regularly met with severe condemnation and public opposition.

This Court has made clear that the use of a practice in American history, even on a widespread basis, does not blunt this Court’s constitutional inquiry or immunize the practice. See, e.g., INS v. Chadha, 462 U.S. 919, 944 (1983). Moreover, the weight of historical practice for constitutional justification is especially doubtful if controversy has persisted regarding the very question of a practice’s constitutionality. See id. at 942 n.13. Where partisan gerrymandering has occurred in American history, it has routinely been denounced as unconstitutional, dangerous to the republic, and a violation of citizens’ prized right of representation. Indeed, many of the gerrymanders in American history – including some relied upon by Appellants in their brief – would already be held

24
unconstitutional today under the one-person, onevote principle.
The first gerrymander in the American republic is generally thought to be Patrick Henry’s attempt in 1788 to deny James Madison a congressional seat by grouping Madison’s home county in a district with counties believed to be more favorable to Henry’s anti-Federalist cause. Newspapers decried the scheme as a violation of the right of a free people to choose their representatives and a destruction of the majority’s ability to decide.52 The intense outrage with which the Founding generation greeted this scheme – even though it involved a contiguous and compact district of normal population – belies any claim that irregular district shapes were ever seen as essential to the impermissibility of gerrymandering.53
The practice received still greater attention, and renewed condemnation, when Elbridge Gerry signed the “notoriously outrageous” 1812 districting bill which would give gerrymandering its name.54 Public outcry against Massachusetts DemocraticRepublicans’ aggressive gerrymander was immediate
52 ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER 40-41 (1907).
53 See also id. at 85-87 (discussing a controversial 1813 New Hampshire gerrymander in which districts were “but slightly modified,” yet the effect was to divide the state “into districts in a most pronouncedly partisan manner”).
54 Vieth, 541 U.S. at 274-75 (plurality op.).

25
and fierce. The newspaper that published the famous political cartoon depicting the “GerryMander” also decried it as a partisan violation of “the Rights of the People” and declared:
This Law inflicted a grievous wound on the Constitution, – it in fact subverts and changes our Form of Government, which ceases to be Republican as long as an Aristocratic House of Lords under the form of a Senate tyrannizes over the People, and silences and stifles the voice of the Majority.55
One newspaper asked of the party leaders who advocated it, “Would not such persons as readily profit by rotten boroughs as ever any British minister did?”56 Several counties issued resolutions denouncing the gerrymander, and towns sent remonstrances to the legislature denouncing it as unconstitutional and unjust.57 Colonel John Flint argued it was a betrayal of the principle of representation for which “our country fought and bled.”58 Federalists decried it as a threat to the safety of republican institutions which contravened
55 The Gerry-Mander, or Essex South District Formed into a Monster!, SALEM GAZETTE, Apr. 2, 1813.
56 GRIFFITH, supra, at 9 (citing Senatorial Districts, NEW ENGLAND PALLADIUM, May 19, 1812).
57 Id. at 70-71.
58 Id. at 71.

26
the Constitution and the Bill of Rights by usurping the majority’s prerogative to govern.59 Some even advocated attempts to remove the “gerrymander senators,” or “senatorial usurpers,” from the legislature by whatever means might be needed.60
For their part, Massachusetts DemocraticRepublicans offered little defense of the gerrymander as meritorious or rightful. Some argued that previous districting laws in Massachusetts had been no different, and suggested that their opponents had previously engaged in gerrymandering, but those contentions were specious.61 Others endeavored to deny the obvious partisan motivations for the scheme – whenever Democratic-Republicans in the Massachusetts House of Representatives appeared on the verge of admitting that there had been any such motivation, the Speaker called them to order.62
Later that decade, Massachusetts Federalists took control of the state legislature and – still viewing the 1812 gerrymander as a grave injustice, but evidently believing it justified their engaging in similar actions – passed a new gerrymander to favor their party.63 The Democratic-Republicans promptly denounced the Federalists’ gerrymander using
59 Id.
60 Id.
61 Id. at 63, 72.
62 Id. at 72.
63 Id. at 88.

27
virtually the same arguments leveled against their own, now claiming it was the Federalists who had effectively imported the English “rotten borough system.”64 A Democratic-Republican publication even attempted to answer the famous political cartoon depicting the “Gerrymander” with one depicting a “British Basilisk” of Federalist construction.65
Attempts at gerrymandering in other states were similarly met with condemnation. In New York, for example, Democratic-Republican gerrymanders were denounced as a violation of voters’ rights, as disfranchisement, and as an effort “to preserve power in the hands of those who at present possess and abuse it.”66 In New Jersey, partisan gerrymanders by Federalists were likened to England’s rotten boroughs,67 decried as unpatriotic, and labeled by Democratic-Republicans as a “deadly poisoned arrow, levelled with certain aim at the inestimable right of suffrage.”68
Despite continued widespread condemnation of partisan gerrymandering as an unconstitutional subversion of democracy and a threat to the republic, by 1840 the practice had come to be expected in some
64 Id. at 91.
65 Id. at 89 (citing BOSTON PATRIOT, July 2, 1814).
66 Id. at 58.
67 See id. at 49.
68 ZAGARRI, supra, at 117.

28
states.69 As in Massachusetts, parties targeted by earlier gerrymanders took advantage of the practice when they regained the levers of power, whether out of sheer opportunism or a belief that unilateral disarmament would not do in the face of such entrenched partisan warfare.
This pattern continued through the Fourteenth Amendment era and beyond. As the nature of representation increasingly came to be viewed as a national concern in the post–Civil War era, the topic of gerrymandering increasingly was raised by federal officeholders. In 1870, future president James Garfield, then a congressman, acknowledged that he was a beneficiary of gerrymandering in Ohio which had given his Republican Party a fourteen-tofive advantage in the state’s congressional delegation despite a roughly even partisan vote.70 Garfield emphatically declared that “no man, whatever his politics, can justly defend a system that may in theory, and frequently does in practice,
69 See GRIFFITH, supra, at 11, 81.
70 As Appellants note, the history of gerrymandering in Ohio began in 1842 with a Democratic scheme that was harshly denounced and ridiculed in the press; Whig representatives absconded to defeat a quorum on the proposal. Appellants Br. 8-9; see also WEEKLY OHIO ST. J. (Aug. 10, 1842) (denouncing the proposed gerrymander as a “stupendous scheme of iniquity and fraud” which disfranchised the majority, “so monstrous in its character as to be declared indefensible by those who voted for it”); The Gerrymander, Supplement, OHIO STAR, Feb. 22, 1854 (denouncing gerrymandering as “an invasion of the popular rights” which “strikes down the principle of government by majorities”).

29
produce such results as these.”71 Recognizing that self-interested politicians would never solve the problem, Garfield pleaded for an institutional solution to what he called “the weak point in the theory of representative government, as now organized and administered” in the United States.72 Other legislators of the time likewise condemned gerrymandering as legislative “usurpation” which decoupled the balance of power from popular voting behavior.73
President Benjamin Harrison similarly decried partisan gerrymandering as antithetical to American ideals. In his Third Annual Message in 1891, President Harrison denounced gerrymandering as a form of “political robbery” and called for it to be eliminated and “the right of the people to free and equal representation” secured. Indeed, although President Harrison observed that gerrymandering already was widely criticized, he pressed the critical importance of the issue:
If I were called upon to declare wherein our chief national danger lies, I should
71 Statement of Rep. James A. Garfield, 41 Cong. Globe 4737, 41ST CONG. 2D SESS. – NO. 296 (June 23, 1870).
72 Id.
73 Peter H. Argersinger, The Transformation of American Politics: Political Institutions and Public Policy, 1865-1910, in CONTESTING DEMOCRACY: SUBSTANCE AND STRUCTURE IN AMERICAN POLITICAL HISTORY, 1775-2000, 117, 124 (Byron E. Shafer & Anthony J. Badger eds., 2001).

30
say without hesitation in the overthrow of majority control by the suppression or perversion of the popular suffrage. That there is a real danger here all must agree; but the energies of those who see it have been chiefly expended in trying to fix responsibility upon the opposite party rather than in efforts to make such practices impossible by either party.74
President Harrison’s message spoke to ongoing concern and outrage throughout the country at the continuing practice of gerrymandering. Newspapers in Northern states drew parallels between the postReconstruction disfranchisement of black citizens and the dilution of votes through partisan gerrymandering,75 a practice that became widely derided as “virtual disfranchisement.”76 Midwestern
74 President Harrison’s Third Annual Message (Dec. 9, 1891), in IX MESSAGES AND PAPERS OF THE PRESIDENTS 186, 208-11 (James D. Richardson ed., 1902).
75 In a remarkable reverse mirror image of modern contentions that certain gerrymanders are enacted for reasons of party, not race, see, e.g., Cooper v. Harris, 137 S. Ct. 1455 (2017), some proponents of gerrymanders in this era boldly claimed the opposite. See, e.g., Fruits of Democratic Usurpation, THE INDIANAPOLIS J., Jan. 16, 1889 (arguing a Democratic reapportionment would enact “frauds” that, while “ostensibly aimed at the negroes, . . . embrace white Republicans as well, and amount to a practical extinction of Republican government”).
76 PETER H. ARGERSINGER, REPRESENTATION AND INEQUALITY IN LATE NINETEENTH-CENTURY AMERICA 19 (2012 ed.); see, e.g., (cont’d)

31
Democrats indignantly asked, for example, “Is it any worse to disfranchise 50,000 people in South Carolina than 50,000 Democrats in Ohio?”77 A newspaper in Indiana drew the analogy still more directly, arguing that the Democratic Party in that state was a minority party that “ha[d] its feet on the necks of the majority, and [had been] able, by a species of political burglary, to rob a large portion of the people of their rights as effectually as if they were absolutely excluded from the polls.” The newspaper added ominously that “[m]en have gone to war to right wrongs less outrageous than this.”78 A West Virginia newspaper similarly decried the “monstrous injustice” of gerrymandering, through which it argued Democrats had been elected to Congress “partly due in many instances to an unfair and unequal arrangement of the congressional districts, and not to a desire of the people” to support them or their policies.79 A Wisconsin newspaper
________________________ (cont’d from previous page)
Rebuke to Gerrymandering, WOOD COUNTY REPORTER, Mar. 31, 1892 (describing a Wisconsin gerrymander as “the worst case of virtual disfranchisement of the majority by a political trick”).
77 ARGERSINGER, supra, at 12.
78 Results of the Gerrymander, INDIANAPOLIS J., Dec. 1, 1892; see also ARGERSINGER, supra, at 36-37 (2012 ed.) (noting contemporary comparisons between gerrymandering and voter suppression accomplished through physical intimidation and violence).
79 Results of the Gerrymander, WHEELING DAILY INTELLIGENCER, Sept. 22, 1894.

32
editor, recognizing (as Garfield had) that his party had benefitted from a recent gerrymander, nevertheless urged some “solution [to] this very vexed question” of gerrymandering lest the principle of representative government be lost.80
Significantly, these concerns were not viewed at the time as presenting questions that were necessarily nonjusticiable or otherwise off-limits to courts. To the contrary, in rejecting on state-law grounds a gerrymander that – by drawing districts of unequal size and with boundaries designed for partisan ends – violated the right to “equal representation in the legislature,” the Wisconsin Supreme Court declared:
If the remedy for these great public wrongs cannot be found in this court, it exists nowhere. It would be idle and useless to recommit such an apportionment to the voluntary action of the body that made it. But it is sufficient that these questions are judicial and not legislative. The legislature that passed the act is not assailed by this proceeding, nor is the constitutional province of that equal and co-ordinate department of the government invaded. The law itself is the only object of judicial inquiry, and its constitutionality is the only question to be decided.
80 ARGERSINGER, supra, at 75.

33
State ex rel. Attorney Gen. v. Cunningham, 51 N.W. 724, 729-30 (Wis. 1892). Other state high courts likewise struck down gerrymandered districting schemes for their state legislatures. See, e.g., Parker v. State ex rel. Powell, 32 N.E. 836 (Ind. 1892). While these decisions rested on state law grounds, the opinions in these cases referred also to the equalrepresentation and anti-entrenchment principles of the federal Constitutional Convention in holding that courts had the right and the duty to decide the question of the gerrymanders’ legality. See, e.g., Cunningham, 51 N.W. at 729-30 (“[T]his apportionment act violates and destroys one of the highest and most sacred rights and privileges of the people of this state, guarantied to them by the ordinance of 1787 and the constitution, and that is ‘equal representation in the legislature.’”); Parker, 32 N.E. at 846 (Elliott, J. concurring) (observing that the Framers wisely provided for judicial checks against “the dangers of legislative usurpation of power”).
Thus, while various instances of partisan gerrymandering have indeed occurred throughout American history, the practice has never been regarded as acceptable – or even widely defended – as part of our constitutional tradition or as a feature of democratic governance. To the contrary, from its inception to the present day, it has been harshly condemned as an unconstitutional mechanism for denying voters’ essential rights to equal representation. One study of the history of gerrymandering, which Appellants cite repeatedly (Appellants Br. 6-9, 60-61), effectively summarized the historical view of the practice when it referred to

34
the gerrymander as “a species of fraud, deception, and trickery which menaces the perpetuity of the Republic of the United States,” for it “sets aside the will of the popular majority.”81 For this reason alone, Appellants’ attempt to rely on instances of gerrymandering in American history must fail.
Furthermore, Appellants’ selective recounting of history (and that of their amici) also ignores a fundamental point: Until this Court’s decisions recognizing the one-person, one-vote principle, many gerrymanders throughout American history included districts of unequal population size.82 Indeed, uneven-population gerrymanders such as these, although less distortive than gerrymanders based on manipulation of district lines for partisan ends,83
81 GRIFFITH, supra, at 7.
82 Several gerrymanders upon which Appellants rely in the opening section of their brief fall into this category. See, e.g., Appellants Br. 6, 8-9; GRIFFITH, supra, at 43 (New York Federalist gerrymander in 1789); DAILY OHIO ST. J. (Aug. 12, 1842) (Ohio Democratic gerrymander in 1842); see also GRIFFITH, supra, at 50, 54, 80, 94 (discussing other early gerrymanders with unequal populations).
83 See, e.g., ERIK J. ENGSTROM, PARTISAN GERRYMANDERING AND THE CONSTRUCTION OF AMERICAN DEMOCRACY 150, 163 (2013) (analyzing House redistricting from 1840 to 1900, finding that “[t]he most important source of [partisan] bias was the distribution of voters into districts from gerrymandering, and less from malapportionment,” and concluding that “[t]he current preoccupation of the courts with strict population equality ignores other – potentially just as harmful – forms of electoral manipulation”).

35
had a history at least arguably more extensive.84 Yet despite that historical record and the numerous complexities inherent in “enter[ing] this political thicket,” Colegrove v. Green, 328 U.S. 549, 556 (1946), this Court in Baker v. Carr, 369 U.S. 186 (1962) ultimately “confronted this ingrained structural inequality” and ended the “[j]udicial abstention [that] left pervasive malapportionment unchecked.” Evenwel v. Abbott, 136 S. Ct. 1120, 1123 (2016). The Court’s recognition that unequalpopulation gerrymanders are unconstitutional and justiciable, and its ability in the decades since to decide such claims (as well as the racial gerrymandering claims it has consistently adjudicated) according to judicially manageable standards, “makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering.” Vieth, 541 U.S. at 310 (Kennedy, J., concurring in the judgment) (emphasis added).
84 Indeed, as a plurality of this Court has noted, gerrymandering based on unequal population size has been traced “back to the Colony of Pennsylvania at the beginning of the 18th century,” when several counties conspired to limit the political power of the city of Philadelphia despite its growth. Vieth, 541 U.S. at 274 (plurality op.).

36
III. IN THE EXTREME FORM IT TAKES TODAY, PARTISAN GERRYMANDERING POSES A SEVERE THREAT TO AMERICAN IDEAS OF REPRESENTATION AND ASSOCIATIONAL RIGHTS
Extreme partisan gerrymanders today are distinct from gerrymanders of the past in ways that make them an ever more dangerous threat to the core constitutional value of actual representation. Today’s extreme gerrymanders, facilitated by big data and sophisticated targeting technology, create the potential for persistent entrenchment – a powerful advantage persisting for multiple consecutive election cycles despite intervening shifts in public opinion – which would have been unimaginable to the Framers.
Gerrymanders in earlier periods of American history were often crude and ineffective as mechanisms of entrenchment. Gerrymanders built on county-level voting data were not particularly robust, and parties routinely miscalculated their relative levels of support.85 These practical difficulties made partisan gerrymandering riskier
85 See, e.g., ZAGARRI, supra, at 116-18 (discussing repeated miscalculations that hindered New Jersey Federalists’ early attempts to gerrymander congressional districts). Likewise, in the late nineteenth century, the crude nature of the data and tools available for partisan gerrymandering created volatility that rendered partisan gerrymanders impermanent. See, e.g., J. MORGAN KOUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION 45, fig. 1.7 (1999).

37
and led some to believe it was “a self-limiting enterprise.” Davis v. Bandemer, 478 U.S. 109, 152 (1986) (O’Connor, J., concurring in the judgment). Although a majority of this Court was skeptical that such practical difficulties actually limited partisan gerrymandering, see id. at 126 (majority opinion) (“It is not clear that political gerrymandering is a selflimiting enterprise . . . .”), there can be no doubt that the greater quantity and quality of demographic data available today allow parties to target voters more precisely and gauge their support more accurately. Current technology thus greatly reduces the risks and increases the potential gains to the majority party from this widely denounced practice.
Indeed, today, unlike in earlier eras, the nation faces what commentators have described as “the specter of elected officials and party officers using high-end technology and increasingly fine-grained data about voters to create maps that lock in their advantage and shut out opponents for years.”86 Studies show that extreme partisan gerrymanders are indeed becoming more effective and pernicious.87 If partisan gerrymandering was ever a “self-limiting enterprise” held in check by the need to balance seat maximization and incumbent protection, these advances have obliterated the limits. Today’s gerrymander technicians, “armed with modern
86 Jerry H. Goldfeder & Myrna Perez, A Tale of (at Least) Two Gerrymanders, N.Y. L. J. (June 22, 2017).
87 See, e.g., Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. CHI. L. REV. 831, 867 (2015).

38
geographical information systems,” can “engineer so much advantage that it is possible to satisfy both of these goals.”88
The gerrymander at issue in this case is a good example of this phenomenon. Using sophisticated software and a composite partisan score that their expert consultant affirmed was “almost a perfect proxy,” the drafters of Act 43 added 12 safe or leaning Republican seats and reduced the number of “swing” districts from 19 to 10, such that Wisconsin Republicans would retain their majority even if the Democrats won every single swing district.89 Election results show Act 43 has been even more effective than expected as a tool of entrenchment.90
A legislative coalition safe in the knowledge that it could lose every swing seat and yet maintain control of the legislature is not one that is accountable to the electorate as the Framers intended. When gerrymandering creates – as the district court found it had here – a “political system systematically unresponsive to a particular segment of the voters based on their political preference,”91 it effectively defeats actual representation. Moreover,
88 ANTHONY J. MCGANN ET AL., GERRYMANDERING IN AMERICA 87 (2016).
89 Whitford v. Gill, 218 F. Supp. 3d 837, 850, 891 (W.D. Wis. 2016).
90 Id. at 901.
91 Id. at 887 n.170.

39
the durable nature of today’s extreme partisan gerrymandering means it is exceptionally difficult or impossible for disadvantaged voters to remedy their constitutional injury through the political process. When the party in power can entrench itself under “any likely future electoral scenario for the remainder of the decade,” as the district court found here,92 it entrenches itself throughout the decennial redistricting cycle and controls the tools of entrenchment for the next one too.93 Just as radically malapportioned state legislatures persisted without a political solution before this Court intervened, see Evenwel, 136 S. Ct. at 1123, so does today’s extreme partisan gerrymandering raise the risk that voters targeted by the practice will “complain from generation to generation without redress.”94
92 Id. at 896.
93 The Framers would no doubt be especially perplexed by the argument, advanced by the dissent below, that the opposition party may vindicate its rights by electing a governor. See id. at 936 (Griesbach, J., dissenting). The American conception of representative democracy since the Framers’ time has viewed the legislature as the primary locus of representation. See, e.g., WOOD, supra, at 163 (“The real importance of the legislatures came from their being the constitutional repository of the democratic element of the society or, in other words, the people themselves.”). The representational rights of opposition party voters are protected by the Constitution, see, e.g., Reynolds, 377 U.S. at 566, not dependent on the election of a governor at a fortuitous time in the decennial redistricting cycle.
94 RECORDS at 578 (Mason).

40
These concerns are further heightened by the recent emergence of coordinated gerrymandering campaigns to systematically diminish the representational and associational rights of members of a disfavored party across multiple states. Such efforts also would have been unthinkable to the Framers, who relied on the diversity of interests and views throughout the states to naturally check the development of a powerful national faction.95 But in 2010, for example, a multi-state campaign called “REDMAP” sought to install a voter-proof “firewall” that could deliver Republican legislative majorities throughout the decennial redistricting cycle.96 National political operatives launched this campaign explicitly with an eye to controlling not only the state legislatures, but also the congressional districts those legislatures would draw.97 To be sure, Democrats engaged in
95 See, e.g., THE FEDERALIST NO. 10 (James Madison), NO. 61 (Alexander Hamilton). The Framers feared that a faction able to consolidate power could infringe other citizens’ rights. See, e.g., RECORDS at 134 (Madison warning that “republican liberty” is constantly at risk of oppression by a majority faction).
96 REPUBLICAN STATE LEADERSHIP COMMITTEE, REDMAP: HOW A STRATEGY OF TARGETING STATE LEGISLATIVE RACES IN 2010 LED TO A REPUBLICAN U.S. HOUSE MAJORITY IN 2013 (Jan 4., 2013), http://bit.ly/1NlDJZr (explaining that by “[c]ontrolling the redistricting process” in key states, the GOP could “maintain a Republican stronghold in the U.S. House of Representatives for the next decade.” (emphasis added)).
97 See id.; Karl Rove, The GOP Targets State Legislatures, WALL ST. J., Mar. 4, 2010 (“He who controls redistricting can control Congress.”).

41

similar behavior where they had the opportunity.98

Moreover, the success of the nationwide Republican

initiative in 2010 has already sparked a Democratic

“BLUEMAP” effort to capture state legislatures and

engineer congressional districts in the 2020

redistricting cycle.99

This elevation of

gerrymandering efforts to coordinated campaigns on

the national level indicates that the natural check

the Framers relied upon has been greatly eroded or

destroyed, and thus further heightens the risk of an

entrenched faction consolidating and abusing its

power.

The greater potential for entrenchment that is achievable today through sophisticated technology means that partisan gerrymandering enacts a higher toll on voters’ associational rights than the gerrymanders of prior eras in at least two ways. First, by using more, and more detailed, data sources, government actors can identify with greater precision than ever before those voters who express political views or hold political affiliations with which those in power disagree – that is, those voters whose First Amendment rights the government wishes to burden based on their viewpoint.

Second, by drawing district lines with ever greater precision, those in power can ensure the burden on those voters’ rights is as great as possible

98 See, e.g., Dave Daley, How Democrats Gerrymandered Their Way to Victory in Maryland, THE ATLANTIC, June 25, 2017.
99 See id.

42
– in other words, that their vote means as little as possible. Amici respectfully submit that the Court should not ignore these developments, which are likely to raise ever greater concerns as technology advances. In another context, this Court has taken into account the ability of increasingly sophisticated technologies “already in use or in development” to increase, as a practical matter, the government’s ability to intrude on a citizen’s Fourth Amendment rights, lest a rigid rule leave homeowners “at the mercy of advancing technology.” Kyllo v. United States, 533 U.S. 27, 35-36 (2001). Similarly here, the Court should consider the greater First Amendment burdens the government may impose using advanced technology in the gerrymandering context.
* * *
The extreme partisan gerrymandering practiced today in Wisconsin is just the sort of abuse the Framers worried those in power might engage in, at the expense of protected rights of representation and association. If this Court does not act and extreme partisan gerrymandering continues to exist and expand unchecked, legislative assemblies will cease to “be bodies which are collectively responsive to the popular will.” Reynolds, 377 U.S. at 565. The constitutional right of each citizen to “an equally effective voice in the election of members of his state legislature” would be illusory, a transparent and cruel legal fiction. Id.

43 CONCLUSION

For the foregoing reasons, amici respectfully urge this Court to affirm the decision below.

Respectfully submitted,

September 5, 2017

CLIFFORD M. SLOAN Counsel of Record
BRENDAN B. GANTS SKADDEN, ARPS, SLATE MEAGHER & FLOM LLP 1440 New York Ave., NW Washington, DC 20005 (202) 371-7000 cliff.sloan@skadden.com

APPENDIX

App. 1
APPENDIX
Peter H. Argersinger is Professor of History at Southern Illinois University. His teaching and scholarship focus on American political history, with particular expertise in redistricting in the midnineteenth and early twentieth centuries. He is the author or co-author of six books, including REPRESENTATION AND INEQUALITY IN LATENINETEENTH CENTURY AMERICA: THE POLITICS OF APPORTIONMENT (2012) and STRUCTURE, PROCESS AND PARTY: ESSAYS IN AMERICAN POLITICAL HISTORY (1991).
Carol Berkin is Presidential Professor of History, Emerita, at Baruch College and the Graduate Center of the City University of New York. She is a specialist in American colonial and revolutionary history, and her numerous writings include A BRILLIANT SOLUTION: INVENTING THE AMERICAN CONSTITUTION (2001).
Holly Brewer is the Burke Professor of American History at the University of Maryland. She is a specialist in early American history and the early British empire, with a particular focus on early modern debates about justice. Her published works include BY BIRTH OR CONSENT: CHILDREN, LAW, AND THE ANGLO-AMERICAN REVOLUTION IN AUTHORITY (2005), which received, among other awards, the Biennial Book Prize of the Order of the Coif from the American Association of Law Schools.
John Brooke is Arts & Sciences Distinguished Professor of History and Director of the Center for

App. 2
Historical Research at Ohio State University. His major field of professional interest is American political and social history from 1660 to 1860. His published works include THE HEART OF THE COMMONWEALTH: SOCIETY AND POLITICAL CULTURE IN WORCESTER COUNTY MASSACHUSETTS, 1713-1861 (1989), COLUMBIA RISING: CIVIL LIFE ON THE UPPER HUDSON FROM THE REVOLUTION TO THE AGE OF JACKSON (2010), and “To be Read by the Whole People”: Press, Party, and Public Sphere in the United States, 1789-1840, in PROCEEDING OF THE AMERICAN ANTIQUARIAN SOCIETY 110 (2000).
Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and a specialist in early American constitutional thought. Among other published works, he is the author of THE OTHER FOUNDERS: ANTI-FEDERALISM AND THE DISSENTING TRADITION IN AMERICA, 17881828 (1999); co-author of VISIONS OF AMERICA: A HISTORY OF THE UNITED STATES (3d ed. 2017); and coauthor, with Gerald F. Leonard, of The Consolidation of the Early Federal System, in THE CAMBRIDGE HISTORY OF LAW IN AMERICA (Christopher Tomlins & Michael Grossberg eds. 2008).
Joanne B. Freeman is Professor of History and American Studies at Yale University. She specializes in early American history, with a particular focus on politics and political culture. Her published works include AFFAIRS OF HONOR: NATIONAL POLITICS IN THE NEW REPUBLIC (2001), which won the Best Book Award from the Society of Historians of the Early American Republic. She is

App. 3
also the author of numerous scholarly articles on electoral politics in American history and the editor of ALEXANDER HAMILTON: WRITINGS (LIBRARY OF AMERICA) (2001) and THE ESSENTIAL HAMILTON: LETTERS & OTHER WRITINGS (2017).
Jonathan Gienapp is Assistant Professor of History at Stanford University. Principally a scholar of Revolutionary and early republican America, he has focused especially on the period’s political culture, constitutionalism, and intellectual history. His forthcoming book, FIXING THE CONSTITUTION: THE TRANSFORMATION OF CONSTITUTIONAL IMAGINATION AT THE AMERICAN FOUNDING (Harvard University Press), explores how and why foundingera Americans’ understanding of the Constitution transformed in the early years of the republic. He has written widely on the relationship between historical practice and constitutional originalism and is currently working on a large project exploring how Americans’ understanding of “democracy” evolved in the late eighteenth and early nineteenth centuries.
Hendrik Hartog is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty and Director of the Program in American Studies at Princeton University. His scholarly work focuses on the social history of American law, including the history of constitutional rights claims and the historiography of legal change. Among other published works, he is the author of The Constitution of Aspiration and “The Rights that Belong to Us All,” 74 J. AM. HIST. 1013 (1987), and editor of LAW IN THE AMERICAN REVOLUTION AND THE REVOLUTION IN THE LAW (1981).

App. 4
Alexander Keyssar, the Matthew W. Stirling, Jr. Professor of History and Social Policy at Harvard University, specializes in historical issues with contemporary policy implications. In addition to other books, he is the co-author of INVENTING AMERICA: A HISTORY OF THE UNITED STATES (2003) and the author of THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES (2d ed. 2009), which received, among other awards, the Beveridge Prize of the American Historical Association for the best book in U.S. history.

James T. Kloppenberg is the Charles Warren Professor of American History at Harvard University. He has written extensively about American politics and ideas from the seventeenth century to the present. His most recent book is TOWARD DEMOCRACY: THE STRUGGLE FOR SELF-RULE IN EUROPEAN AND AMERICAN THOUGHT (2016), which explores democracy from the perspective of the Framers and others who struggled to envision and achieve it.

Gerald F. Leonard is Professor of Law and Law

Alumni Scholar at the Boston University School of

Law.

He is a historian of American

constitutionalism and politics whose books include

THE INVENTION OF PARTY POLITICS: FEDERALISM,

POPULAR SOVEREIGNTY, AND CONSTITUTIONAL

DEVELOPMENT IN JACKSONIAN ILLINOIS (2002). He is

the co-author, with Saul Cornell, of The

Consolidation of the Early Federal System, in THE

CAMBRIDGE HISTORY OF LAW IN AMERICA

App. 5
(Christopher Tomlins & Michael Grossberg eds. 2008).
Peter S. Onuf is the Thomas Jefferson Memorial Foundation Professor Emeritus in the Corcoran Department of History at the University of Virginia and Senior Research Fellow at the Robert H. Smith International Center for Jefferson Studies at Monticello. He specializes in the history of the early American republic and has published numerous books on the topic, including THE ORIGINS OF THE FEDERAL REPUBLIC (1983), JEFFERSON’S EMPIRE: THE LANGUAGE OF AMERICAN NATIONHOOD (2000), and THE MIND OF THOMAS JEFFERSON (2007). He was elected to the American Academy of Arts and Sciences in 2014.
Jack Rakove is the William Robertson Coe Professor of History and American Studies, and Professor of Political Science, at Stanford University. His principal areas of research focus on the origins of the American Revolution and Constitution, the political career and thinking of James Madison, and the role of historical knowledge in constitutional interpretation. He is the author of seven books, including ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996), which won the Pulitzer Prize in History; THE ANNOTATED U.S. CONSTITUTION AND DECLARATION OF INDEPENDENCE (2009); and REVOLUTIONARIES: A NEW HISTORY OF THE INVENTION OF AMERICA (2010). He is a member of the American Philosophical Society.

App. 6
John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law and Professor of History at Yale University. Much of his scholarship focuses on the historical development of American law in the early republic and the Civil War era. His books include PATRIOTS AND COSMOPOLITANS: HIDDEN HISTORIES OF AMERICAN LAW (2007), and LINCOLN’S CODE: THE LAWS OF WAR IN AMERICAN HISTORY (2012), which was awarded the Bancroft Prize.
Rosemarie Zagarri is University Professor and Professor of History at George Mason University. She is a specialist in early American history with a particular interest in apportionment and districting. In 2009-2010 she was President of the Society for Historians of the Early American Republic. Her published works include THE POLITICS OF SIZE: POLITICAL REPRESENTATION IN THE UNITED STATES, 1776-1850 (1987); A WOMAN’S DILEMMA: MERCY OTIS WARREN AND THE AMERICAN REVOLUTION (1995); and REVOLUTIONARY BACKLASH: WOMEN AND POLITICS IN THE EARLY AMERICAN REPUBLIC (2007), as well as numerous scholarly articles.

 
 No. 16-1161

IN THE
Supreme Court of the United States
__________
BEVERLY R. GILL, ET AL., Appellants,
v.

WILLIAM WHITFORD, ET AL., __________ Appellees.
On Appeal from the United States District Court for the
Western D_i_s_t_r_ic_t__o_f_Wisconsin
BRIEF OF REPUBLICAN STATEWIDE OFFICIALS SEN. BILL BROCK, SEN. JOHN DANFORTH, SEN. BOB DOLE, GOV. JAMES DOUGLAS, GOV. JIM EDGAR, GOV. JOHN KASICH,
GOV. FRANK KEATING, SEN. RICHARD LUGAR, GOV. JOCK MCKERNAN JR., GOV. BILL OWENS, GOV. ARNOLD SCHWARZENEGGER, SEN. ALAN
SIMPSON, GOV. CHRISTINE TODD WHITMAN, AND LT. GOV. CORINNE WOOD
AS AMICI CURIAE I_N__S_U__P_P__O_RT OF APPELLEES

CHARLES FRIED 1563 Massachusetts Avenue Cambridge, MA 02138 (617) 495-4636
September 5, 2017

DAVID C. FREDERICK Counsel of Record
DANIEL V. DORRIS MATTHEW R. HUPPERT KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W. Suite 400 Washington, D.C. 20036 (202) 326-7900 (dfrederick@kellogghansen.com)

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY ......................... 5

ARGUMENT ............................................................... 7

I. PARTISAN GERRYMANDERS ARE REPUGNANT TO THE CONSTITUTION ................................................................. 7

A. Partisan Gerrymanders Violate The First And Fourteenth Amendments .......... 8

B. The Harms Of Partisan Gerrymanders Are Too Great To Ignore................... 11

II. THE DISTRICT COURT APPLIED A WORKABLE AND RELIABLE STANDARD FOR IDENTIFYING PARTISAN GERRYMANDERS ........................................ 22

A. This Court Has A Long Tradition Of Deciding Cases That Remedy Legislative Malapportionment ................. 22

B. The District Court’s Standard Reliably Identifies Unconstitutional Gerrymanders And Cabins Judicial Discretion .................................................. 27

CONCLUSION.......................................................... 35

ii

CASES

TABLE OF AUTHORITIES

Page

Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011) .................. 10

Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ................................................................... 17

Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988), summarily aff’d, 488 U.S. 1024 (1989) ..............................................................14, 15

Baker v. Carr, 369 U.S. 186 (1962) .....................23, 24

Benisek v. Lamone, Civil No. JKB-13-3233, 2017 WL 3642928 (D. Md. Aug. 24, 2017) ...... 7, 15

Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788 (2017) ........................................... 26

Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) ............ 10

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) ................................................................... 13

City of Mobile v. Bolden, 446 U.S. 55 (1980).............. 8

Colegrove v. Green, 328 U.S. 549 (1946) .................. 23

Cooper v. Harris, 137 S. Ct. 1455 (2017).................. 27

Davis v. Bandemer, 478 U.S. 109 (1986)..............7, 21, 22, 30, 33

Davis v. FEC, 554 U.S. 724 (2008) ........................... 10

Elrod v. Burns, 427 U.S. 347 (1976) ........................ 10

Evenwel v. Abbott, 136 S. Ct. 1120 (2016)......24, 25, 32

Gaffney v. Cummings, 412 U.S. 735 (1973) .....9, 28, 30

iii
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) .............................9, 16, 20, 22, 26, 30, 31, 34
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) ............................................................ 13
New York v. United States, 505 U.S. 144 (1992) ................................................................... 12
Powell v. McCormack, 395 U.S. 486 (1969) ............. 17 Reynolds v. Sims, 377 U.S. 533 (1964)...........8, 11, 13,
23, 24, 25 Shaw v. Reno, 509 U.S. 630 (1993) .....................20, 26 United States v. Carolene Prods. Co., 304
U.S. 144 (1938) .................................................... 14 Vieth v. Jubelirer, 541 U.S. 267 (2004) ........7, 8, 9, 10,
11, 13, 14, 16, 20, 23, 26, 27, 28, 29 Wesberry v. Sanders, 376 U.S. 1 (1964) ................... 11
CONSTITUTION AND RULES U.S. Const.:
Pmbl. ................................................................... 17 Art. IV, § 4 (Guarantee Clause) .......................... 12 Amend. I..............................................5, 7, 8, 10, 11 Amend. XIV ....................................................5, 7, 8
Equal Protection Clause .........................8, 9, 11 Sup. Ct. R.:
Rule 37.3(a)............................................................ 1 Rule 37.6 ................................................................ 1

iv
OTHER MATERIALS Bipartisan Policy Center, Our Mission, https://
bipartisanpolicy.org/about/who-we-are/ ............... 2 Anne Blythe, League of Women Voters
Challenges NC Congressional Districts as Partisan Gerrymanders, The Charlotte Observer (Sept. 22, 2016), available at http://www.charlotteobserver.com/news/ politics-government/election/article 103489972.html ................................................... 19 Richard E. Cohen, Ill. Makes Redistricting Hall of Fame, Politico (June 3, 2011), available at http://www.politico.com/story/ 2011/06/ill-makes-redistricting-hall-of-fame056225 .................................................................. 15 Michael Collins, Fewer and Fewer U.S. House Seats Have Any Competition, USA Today (Nov. 4, 2016), available at https://www. usatoday.com/story/news/politics/elections/ 2016/11/04/fewer-and-fewer-us-houseseats-have-any-competition/93295358/................ 18 2 Debates on the Federal Constitution (J. Elliot ed., 1876) .............................................. 17 John Fritze, Lawsuit Forces Maryland Democrats To Acknowledge the Obvious: Redistricting Was Motivated by Politics, Balt. Sun (June 1, 2017), available at http://www.baltimoresun.com/news/ maryland/politics/ ................................................ 30 Patrick Gannon, Has Political Gerrymandering Gone Too Far?, Citizen-Times (June 24, 2016), available at http://www.citizen-times. com/story/opinion/columnists/syndicated/ 2016/06/24/state-columnist-politicalgerrymandering-gone-far/86328724/ .................. 30

v
Corbett A. Grainger, Redistricting and Polarization: Who Draws the Lines in California?, 53 J.L. & Econ. 545 (2010) ......................... 20
Josh Huder, The House’s Competitiveness Problem . . . Or Lack Thereof, Gov’t Affairs Inst., available at http://gai.georgetown.edu/ the-houses-competitiveness-problem-orlack-thereof .......................................................... 18
Carl Klarner, Democracy in Decline: The Collapse of the “Close Race” in State Legislatures, Ballotpedia (May 6, 2015), available at https://ballotpedia.org/ Competitiveness_in_State_Legislative_ Elections:_1972-2014........................................... 19
Justin Levitt, All About Redistricting: Who Draws the Lines?, available at http:// redistricting.lls.edu/who.php .............................. 15
John Locke, Two Treatises of Government (London 1689) ...................................................... 17
Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988) ........ 12
Remarks by John C. Danforth, Acceptance of the Winston Churchill Medal for Leadership, St. Louis, Missouri (June 8, 2017), available at https://www.nationalchurchill museum.org/cmss_files/attachmentlibrary/ 17-06-08--JCD-Churchill-acceptanceremarks.pdf.......................................................... 21
Nate Silver, As Swing Districts Dwindle, Can a Divided House Stand? FiveThirtyEight (Dec. 27, 2012), available at https:// fivethirtyeight.blogs.nytimes.com/2012/ 12/27/as-swing-districts-dwindle-can-adivided-house-stand ............................................ 18

vi
J. Douglas Smith, On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought “One Person, One Vote” to the United States (2014) ...........................16, 24, 25
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) .....32, 33
The Declaration of Independence (U.S. 1776) ......... 17
The Federalist (Clinton Rossiter ed., 1961):
No. 22 (Alexander Hamilton) .............................. 12
No. 57 (James Madison) ...................................... 17
No. 84 (Alexander Hamilton) .............................. 13
The Harris Poll, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013), available at http:// www.theharrispoll.com/politics/Americans_ Across_Party_Lines_Oppose_Common_ Gerrymandering_Practices.html ........................ 21
Thomas Jefferson First Inaugural Address (Mar. 4, 1801), reprinted in 33 The Papers of Thomas Jefferson 148-52 (Princeton Univ. Press 2006) ................................................ 12

INTEREST OF AMICI CURIAE 1
Amici are Republican politicians who have held statewide elected office, including six former Governors and six former Senators. They have held public office through numerous partisan gerrymanders and have experienced firsthand their pernicious effects. Amici believe that partisan gerrymanders are unconstitutional, are harming our republican government, and readily can be identified and addressed by courts. Amici are uniquely situated in that they have served as statewide elected officials who have not depended on partisan gerrymanders for their political positions. Accordingly, they have campaigned across the entire electorate and have supported issues with broadbased voter appeal. Partisan gerrymandering has polarized legislatures and thus undermined their efforts at bipartisanship. Amici believe that this unique perspective will help the Court in assessing the harms of partisan gerrymanders and determining whether and how to identify them.
William Emerson Brock III served as a United States Congressman from Tennessee from 1963 to 1971 and as a United States Senator from Tennessee from 1971 to 1977. He has also been the Chair of the Republican National Committee from 1977 to 1981, the United States Trade Representative from 1981 to 1985, and the Secretary of Labor from 1985 to 1987.
1 Pursuant to Supreme Court Rule 37.6, counsel for amici represent that they authored this brief in its entirety and that none of the parties or their counsel, nor any other person or entity other than amici or their counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Pursuant to Rule 37.3(a), counsel for amici also represent that all parties have consented to the filing of this brief; letters reflecting their blanket consent to the filing of amicus briefs are on file with the Clerk.

2
John Danforth served as the Attorney General of Missouri from 1969 to 1976, which at that time was a traditionally Democratic State. From 1976 to 1995, he served as a United States Senator from Missouri.
Robert Dole served as a United States Senator from Kansas from 1969 to 1996. He was the leader of the United States Senate Republicans from 1987 to 1996 and was the Republican nominee for President in 1996. In 2007, he formed the Bipartisan Policy Center, a think tank that “actively promotes bipartisanship” and fights “the current partisan tone in government,” which “is impeding progress.”2
James H. Douglas served as Governor of Vermont from 2003 to 2011. He earlier served in the Vermont House of Representatives from 1973 to 1979, as Vermont Secretary of State from 1981 to 1993, and as State Treasurer from 1995 to 2003. He chaired the National Governors Association in 2009 and 2010 and currently serves on the Governors’ Council at the Bipartisan Policy Center. Demonstrating his commitment and connection to bipartisanship, in 9 of his 18 successful campaigns, including campaigns for the House, Secretary of State, and Treasurer, Governor Douglas was nominated for the position by both the Republican and the Democratic parties, despite his having consistently run as a member of the Republican Party.
Jim Edgar served as the Governor of Illinois from 1991 to 1999. He also served as the Secretary of State of Illinois from 1981 to 1991 and as a member of the Illinois House of Representatives from 1977 to 1979.
2 Bipartisan Policy Center, Our Mission, https://bipartisanpolicy. org/about/who-we-are/.

3
John Kasich has been the Governor of Ohio since 2011. He also served as a United States Congressman from Ohio from 1983 to 2001 and as a member of the Ohio Senate from 1979 to 1983. He has recently supported legislation to reform congressional redistricting in Ohio.
Frank Keating served as the Governor of Oklahoma from 1995 to 2003. He had previously served as a member of the Oklahoma Senate and Oklahoma House of Representatives. In his 2001 State of the State Address, Governor Keating explained that the “purpose of redistricting is to assure fair representation of our people, not to protect or to create partisan advantage.”
Richard Lugar served as a United States Senator from Indiana from 1977 to 2013 and as the Mayor of Indianapolis from 1968 to 1975. Following his political career, he founded The Lugar Center, a platform that promotes informed debate on global issues, including enhancing bipartisan governance.
John R. McKernan Jr. served as the Governor of Maine from 1987 to 1995. He had previously served as a United States Congressman from Maine from 1983 to 1987 and as a member of the Maine House of Representatives.
Bill Owens served as the Governor of Colorado from 1999 to 2007. He also served as the Treasurer of Colorado from 1995 to 1999. He currently has a lead role in a bipartisan coalition in Colorado seeking to reform Colorado’s redistricting process.
Arnold Schwarzenegger served as the Governor of California from 2003 to 2011. In 2008 and 2010, he successfully advocated for two ballot initiatives that established non-partisan redistricting commissions for California. These reforms have ended decades of

4
partisan gerrymanders to the benefit of California’s political system. In 2012, he helped found the Schwarzenegger Institute for State and Global Policy at the Sol Price School of Public Policy, University of Southern California.
Alan Simpson served as a United States Senator from Wyoming from 1979 to 1997. From 1985 to 1987, he was the Senate Majority Whip. He has also served as the co-chair of the National Commission on Fiscal Responsibility and Reform, the Director of the Institute of Politics at the John F. Kennedy School of Government at Harvard University, and as a member of the Wyoming House of Representatives from 1964 to 1977.
Christine Todd Whitman served as the Governor of New Jersey from 1994 to 2001. She also served as the Administrator of the Environmental Protection Agency from 2001 to 2003.
Corinne Wood served as the Lieutenant Governor of Illinois from 1999 to 2003. She also served as a member of the Illinois House of Representatives from 1997 to 1999 and currently is a board member of Change Illinois, an organization that seeks to end partisan gerrymandering in Illinois.

5
INTRODUCTION AND SUMMARY During the 2010 redistricting cycle, Wisconsin Republicans were open about their plans. They viewed redistricting as an “opportunity and an obligation” to entrench their political party for years to come. See App. 28a.3 They proceeded to draw districts that maximized Republican-party power at the expense of Democratic voters. In the drafters’ own words, those districts would “determine who’s here 10 years from now.” See id. Their efforts succeeded. Even though a minority of Wisconsin voters voted for Republicans in 2012, Republicans still won a comfortable majority of Assembly seats (60 of 99). By their own projections, Wisconsin Republicans will retain their control of the legislature even if the Democrats were to attain a historical “wave election” in their favor. This story repeats itself throughout the country every decade, and it keeps getting worse. Politicians forthrightly announce their plans to strip opposing party voters of political representation. Every year political parties obtain ever more granular and reliable voting data, and they feed those data into increasingly sophisticated modeling programs. This case presents an opportunity to stamp out this most egregious form of partisan gerrymander – one that was enacted for the sole purpose of entrenching one political party. By specifically targeting voters on the basis of political affiliation and stripping them of political power, that action goes beyond mere partisan wrestling and violates both the First and the Fourteenth Amendments. Indeed, this Court has
3 References to “App.” are to the Appendix accompanying the Jurisdictional Statement.

6
stated that such acts are unlawful and inconsistent with democratic principles.
Amici have witnessed firsthand how these practices undermine republican government. Partisan gerrymanders frustrate majority rule by entrenching political parties in ways they do not earn on the merits. They turn republican government upside down, with politicians choosing their voters instead of voters electing their politicians. And the public predictably becomes cynical and disinterested about elections with predetermined outcomes. From 2002 to 2010 – prior to redistricting reform – there were 265 congressional elections in California. Incumbents or their successors won 264.
Appellants do not even attempt to defend the constitutionality of partisan gerrymanders. They contend only that partisan gerrymanders are non-justiciable because there are no manageable standards to identify them. This is not the first time that unconstitutional redistricting practices have been defended with exaggerated warnings about entering the “political thicket.” This Court has not heeded them before, and it should not do so now. If this Court does not stop partisan gerrymanders, partisan politicians will be emboldened to enact ever more egregious gerrymanders as ever more precise voting data continually become available. That result would be devastating for our democracy.
While amici believe partisan gerrymanders are often obvious and easily identifiable, amici share this Court’s concerns about limiting judicial discretion that could be used to strike down legitimate districting plans. The district court’s standard accomplishes that purpose. It requires both evidence of intent to entrench a political party along with empirical

7
evidence that the districting plan has that effect; and it carves out any happenstance entrenchment due to legitimate state interests or geographical idiosyncrasies. That demanding standard will ensure that courts do not interfere with legitimate redistricting plans in the future.
ARGUMENT
I. PARTISAN GERRYMANDERS ARE REPUGNANT TO THE CONSTITUTION
Justices of this Court repeatedly have recognized the constitutional infirmity of partisan gerrymanders. E.g., Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality); Vieth v. Jubelirer, 541 U.S. 267, 312 (2004) (Kennedy, J., concurring in the judgment). Partisan gerrymanders violate the Fourteenth Amendment’s guarantee of “fair and effective representation” and the First Amendment by burdening citizens’ fundamental voting rights on the basis of their expressed ideological beliefs. Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment). As Justice Scalia noted in Vieth, “severe partisan gerrymanders” are inconsistent with “democratic principles.” 541 U.S. at 292 (plurality); see id. at 293 (“[E]xcessive injection of politics is unlawful.”). “The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy. . . . The problem is cancerous, undermining the fundamental tenets of our form of democracy.” Benisek v. Lamone, Civil No. JKB-13-3233, 2017 WL 3642928, at *16 (D. Md. Aug. 24, 2017) (Niemeyer, J., dissenting).
Amici have experienced firsthand with how partisan gerrymanders make a mockery of our republican government. Amici believe these grave harms to

8
our political system “demand[ ] judicial protection” regardless of “the dangers of entering into political thickets.” Reynolds v. Sims, 377 U.S. 533, 566 (1964).
A. Partisan Gerrymanders Violate The First And Fourteenth Amendments
1. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds, 377 U.S. at 555. That right “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Id. The Fourteenth Amendment’s Equal Protection Clause thus “guarantees the opportunity for equal participation by all voters in the election of state legislators.” Id. at 565-66.
This Court has long applied these principles to strike down redistricting plans that invidiously discriminate against groups of voters on the basis of race or place of residence. See id. at 568; City of Mobile v. Bolden, 446 U.S. 55, 84-87 (1980) (Stevens, J., concurring in the judgment). The same prohibition against invidious discrimination also applies to political classifications. “If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one vote principles,’ we would surely conclude the Constitution had been violated.” Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment).
To be sure, redistricting plans may justifiably consider race or place of residence when there is a “neutral predicate” or, in the case of partisan gerry-

9
manders, “some nonpartisan public purpose.” Id. at 332-33 (Stevens, J., dissenting). As this Court has held, “[i]t would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it.” Gaffney v. Cummings, 412 U.S. 735, 752 (1973). Redistricting plans thus may attempt to create “a more ‘politically fair’ ” result than would otherwise occur in winner-take-all elections by “allocat[ing] political power to the parties in accordance with their voting strength.” Id. at 752-54. They also may be based on “traditional districting principles such as maintaining communities of interest and traditional boundaries.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 433 (2006) (“LULAC ”).
Ordinary application of this Court’s “ ‘well developed and familiar’ standard[s]” under the Equal Protection Clause provides the dividing line between permissible and impermissible uses of political classifications. Vieth, 541 U.S. at 313-14, 316 (Kennedy, J., concurring in the judgment). Redistricting plans may not use political classifications “in an invidious manner or in a way unrelated to any legitimate legislative objective.” Id. at 307. That is, district lines cannot be drawn with “a bare desire to harm a politically disfavored group.” LULAC, 548 U.S. at 461-62 (Stevens, J., concurring in part and dissenting in part); see Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment); id. at 326 (Stevens, J., dissenting). Nor can political classifications be applied in an arbitrary manner untethered from “the aims of apportionment” – “fair and effective representation” for political parties. Id. at 312 (Kennedy, J., concurring in the judgment). But, as explained above, political classifications may be used for other non-

10
invidious purposes such as allocating political power to parties in accordance with their popular support.
2. The First Amendment also bars partisan gerrymanders. “[P]olitical belief and association constitute the core of those activities protected by the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality). The First Amendment prohibits the government from imposing a substantial burden on the exercise of those protected activities absent a compelling state interest. See Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment) (noting “the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views”); see also Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 736-40 (2011); Davis v. FEC, 554 U.S. 724, 738-39 (2008). Redistricting plans thus cannot have “the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment); see Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870-71 (1982) (plurality) (“If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books.”).
Partisan gerrymanders do just that. The party that controls redistricting intentionally seeks to limit the voting power of citizens they fear will support the opposing party. Doing so imposes a substantial burden on voting rights solely because of those

11
voters’ assumed political beliefs. Because “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live,” the “Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964); see Reynolds, 377 U.S. at 561-62.
As with the Equal Protection Clause, the First Amendment does not prohibit all consideration of political affiliation. The consideration of political affiliation may be justified by a compelling state interest. See Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the judgment). The Vieth plurality’s concern that recognizing First Amendment challenges to partisan gerrymanders “would render unlawful all consideration of political affiliation in districting” is therefore incorrect. Id. at 294.
B. The Harms Of Partisan Gerrymanders Are Too Great To Ignore
Justices of this Court have expressed concern about wading into the “political thicket” of partisan gerrymanders. “With uncertain limits, intervening courts – even when proceeding with best intentions – would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Vieth, 541 U.S. at 307-08 (Kennedy, J., concurring in the judgment). But the dangers of turning a blind eye to these constitutional violations are far greater.
Amici have decades of experience serving in statewide elective office. This gives them a unique vantage point. Because they do not owe their political careers to the spoils of partisan gerrymanders, they govern with the goal of building consensus and crafting policy that is bipartisan and responsive to

12
the will of the entire electorate. Partisan gerrymandering frustrates those efforts. It entrenches political parties against popular will; it polarizes legislatures and creates gridlock; and it engenders voter cynicism about a political system that has been rigged to achieve predetermined electoral results, potentially in opposition to their will. Politicians now select their voters, instead of voters electing politicians.
1. The Constitution “guarantee[s] to every State in this Union a Republican Form of Government.” U.S. Const. art. IV, § 4. Regardless of whether the Guarantee Clause gives rise to justiciable claims, it is not meaningless. See New York v. United States, 505 U.S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”). “[T]he core meaning of republican government” has been established “[s]ince at least the eighteenth century”: “[T]he people control their rulers . . . principally – although not exclusively – through majoritarian processes.” Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 23-24 (1988). Alexander Hamilton stated that the “fundamental maxim of republican government” is “that the sense of the majority should prevail.” The Federalist No. 22, at 146 (Clinton Rossiter ed., 1961). And Thomas Jefferson explained in his first inaugural address that “the essential principles of our government” include “absolute acquiescence in the decisions of the majority.” First Inaugural Address (Mar. 4, 1801), reprinted in 33 The Papers of Thomas Jefferson 148, 150-51 (Princeton Univ. Press 2006). Entrenched minorities and hereditary aristocracies alike are inconsistent with these principles of repub-

13
lican government. See The Federalist No. 84, at 512 (Alexander Hamilton) (“prohibition of titles of nobility . . . may truly be denominated the cornerstone of republican government”).
This Court too has long recognized that majoritarian rule is an inherent feature of republican government. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-05 (1819) (Marshall, C.J.) (“The government of the Union . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 457 (1793) (Wilson, J.) (republican government based on the “principle[ ] that the Supreme Power resides in the body of the people”). Legislatures thus “should be bodies which are collectively responsive to the popular will.” Reynolds, 377 U.S. at 565. “Representative democracy . . . is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment); see id. at 356 (Breyer, J., dissenting) (“There must also be a method for transforming the will of the majority into effective government.”).
Partisan gerrymanders are designed to subvert this principle of republican government. The party in power at the time of redistricting seeks to entrench itself so that it remains impervious to changes in voter sentiment. As Wisconsin Republicans’ own redistricting consultant explains in an amicus brief, “[m]odern, computer-driven redistricting now allows the political party in power to craft extremely sophisticated partisan gerrymanders.” Grofman & Gaddie

14
Br. 4. This “ensur[es] that the party in power enjoys an electoral advantage that endures throughout the following decade, irrespective of voters’ subsequent choices.” Id. at 4-5. Having successfully entrenched itself, that same party then gets to draw the lines the next time around, and so on. Absent a remarkable change in the political landscape, political parties can – and have – entrenched themselves for decades, hijacking the “ ‘political processes ordinarily to be relied upon to protect minorities.’ ” Vieth, 541 U.S. at 311-12 (Kennedy, J., concurring in the judgment) (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938)).
In 2012 in Wisconsin, for example, Democrats received a majority of the statewide vote (51.4%) but obtained only 39.4% of the seats in the legislature. And, in 2014, the Democrats received almost half the statewide vote (48%) but obtained only 36.4% of the legislative seats. Even if Democrats received upwards of 54% of the popular vote – a rare “wave election” in a tightly contested swing State – they likely still could not achieve a legislative majority. See App. 153a & n.263.
California too has had a history of partisan gerrymanders. In 1980, the Republicans had been gaining support throughout California and had won 21 of 43 congressional seats. See Badham v. Eu, 694 F. Supp. 664, 666 n.2 (N.D. Cal. 1988), summarily aff’d, 488 U.S. 1024 (1989). Using the 1980 census, California Democrats – who controlled the legislature and governorship – enacted an egregious partisan gerrymander that its creator called his “contribution to

15
modern art.”4 In the 1982 cycle, California Republicans won only 17 of 45 congressional seats, and, in 1984, Republicans won only 18 of 45 congressional seats despite winning the statewide popular vote. See id. at 666, 670.
In the experience of amici, these are not isolated incidents. Partisan gerrymanders occur in virtually every State that entrusts redistricting to elected officials, who have a vested interest in drawing district lines that favor their own (and their party’s) interests.5 If this Court finds that partisan gerrymandering claims are non-justiciable, state legislatures will be emboldened to enact even more aggressive gerrymanders without the threat of judicial review. Indeed, the district court found that Wisconsin Republicans operated under the assumption that “some constitutional limits” applied to partisan gerrymanders; imagine what would happen if even that threat disappeared. App. 125a; see Benisek, 2017 WL 3642928, at *16, *25 (Niemeyer, J., dissenting) (explaining that, without limits on partisan gerrymanders, the majority party could secure every seat in the legislature); Grofman & Gaddie Br. 9 (“[t]here is compelling evidence that the 2010 redistricting cycle yielded partisan gerrymandering of a magnitude
4 Richard E. Cohen, Ill. Makes Redistricting Hall of Fame, Politico (June 3, 2011), available at http://www.politico.com/ story/2011/06/ill-makes-redistricting-hall-of-fame-056225.
5 See Justin Levitt, All About Redistricting: Who Draws the Lines? (state legislatures primarily responsible for redistricting in 37 of 50 States), available at http://redistricting.lls.edu/who. php (last visited Aug. 28, 2017).

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that is qualitatively and quantitatively different from what we have seen in the past”).6
Recognizing that partisan gerrymanders are inconsistent with republican government does not hinge on the existence of “a right to proportional representation.” Vieth, 541 U.S. at 288 (plurality); see Appellants’ Br. 55. The winner-take-all nature of single-member districts “tends to produce a ‘seat bonus’ in which a party that wins a majority of the vote generally wins an even larger majority of the seats.” LULAC, 548 U.S. at 464 (Stevens, J., concurring in part and dissenting in part); see Vieth, 541 U.S. at 357 (Breyer, J., dissenting). In Wisconsin, for example, a swing of several percentage points in the popular vote can have drastic effects on the legislature. See App. 150a n.257. Thus, under ordinary circumstances, a majority of voters should be able to elect a legislative majority – indeed, a legislative majority that exceeds the popular vote majority. But a minority of voters has no expectation of proportional representation. There is therefore no equivalence between proportional representation and the bedrock principle of republican government that a majority of voters should be able to elect a legislative majority that will advance those voters’ policy preferences.
6 Wisconsin expresses concern that many redistricting plans have such a large partisan effect that they may be held unconstitutional. See Appellants’ Br. 52-53. But the proliferation of unconstitutional partisan gerrymanders is the precise reason why this Court must reject that practice, just as it has when correcting gross inequities in voting power that existed in every State prior to “one person, one vote.” See J. Douglas Smith, On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought “One Person, One Vote” to the United States 291 (2014) (showing that ratio between largest and smallest legislative district in every State exceeded 2:1 and often 100:1).

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2. The corollary of majority rule is that each representative should be responsive to his or her constituents. “[T]he core principle of republican government [is] that the voters should choose their representatives, not the other way around.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015). That principle traces its roots at least to John Locke, who explained that legislatures have “only a fiduciary power to act for certain ends” while “there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.” John Locke, Two Treatises of Government 328 (London 1689) (italics omitted).
This was also commonly understood to be the meaning of republican government at the time the Constitution was ratified. The Declaration of Independence proclaims that “Governments . . . deriv[e] their just Powers from the Consent of the Governed.” Para. 2 (U.S. 1776). And the Constitution itself states that it is a creation of “We the People.” U.S. Const. pmbl. The Framers of the Constitution further explained that the fundamental principle of our republican government was “ ‘the people should choose whom they please to govern them.’ ” Powell v. McCormack, 395 U.S. 486, 540-41 (1969) (quoting Alexander Hamilton from 2 Debates on the Federal Constitution 257 (J. Elliot ed., 1876)); see The Federalist No. 57, at 352 (James Madison) (espousing the benefit of “frequent elections” – that representatives have a “habitual recollection of their dependence on the people”).
Partisan gerrymanders turn this principle upside down. Instead of voters electing politicians, politicians use granular voting data and redistricting

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software to select the voters who will put and keep them in power. This causes great damage to republican government.
First, electoral competition disappears, and political accountability diminishes. Politicians need not be responsive to all their constituents because those constituents have been slotted into districts to achieve predetermined electoral outcomes. Despite approval ratings dipping into the single percentages, members of the United States House of Representatives are reelected at rates exceeding 95%.
This was not always the case. In the 1800s, nearly half of the House seats turned over every election.7 But during the modern redistricting era, electoral competition has declined drastically. In 1992, there were 103 “swing districts . . . in which the margin in the presidential race was within five percentage points of the national result”; in 2012, there were approximately 35.8 During that same period, the number of “landslide districts . . . in which the presidential vote margin deviated by at least 20 percentage points” grew from 123 to 242.9 State legislative races have followed the same trend. In 2014, less than 5% of the public lived in a district where the
7 See Josh Huder, The House’s Competitiveness Problem . . . Or Lack Thereof, Gov’t Affairs Inst., available at http://gai.georgetown. edu/the-houses-competitiveness-problem-or-lack-thereof.
8 Nate Silver, As Swing Districts Dwindle, Can a Divided House Stand? FiveThirtyEight (Dec. 27, 2012), available at https://fivethirtyeight.blogs.nytimes.com/2012/12/27/as-swingdistricts-dwindle-can-a-divided-house-stand.
9 Id.; see also Michael Collins, Fewer and Fewer U.S. House Seats Have Any Competition, USA Today (Nov. 4, 2016), available at https://www.usatoday.com/story/news/politics/elections/ 2016/11/04/fewer-and-fewer-us-house-seats-have-any-competition/ 93295358/.

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state race was competitive – i.e., decided by five percentage points or less.10
Partisan gerrymanders have directly contributed to this decline in electoral competition. As Wisconsin’s redistricting shows, the political party in charge of redistricting draws as many “safe” districts as possible for its party members without wasting too many votes. The drafters of the Wisconsin’s redistricting plan created a spreadsheet that listed safe Republican districts with “partisan scores” – i.e., likely Republican vote shares – exceeding 55%. App. 135a & n.221. The drafters touted that they had increased the number of such districts by using “GOP donors to the team” – i.e., transferring Republican voters from ultra-safe districts to shore up other districts that were not as safe. App, 134a-135a & n.221. Conversely, the other political party has its voters “packed” into ultra-safe districts. Politicians from those ultra-safe districts are just as unaccountable – if not more so – to their constituents as politicians from the gerrymandering party.11
Second, legislatures become more polarized. “When a district obviously is created solely to effec-
10 See Carl Klarner, Democracy in Decline: The Collapse of the “Close Race” in State Legislatures, Ballotpedia (May 6, 2015), available at https://ballotpedia.org/Competitiveness_in_State_ Legislative_Elections:_1972-2014.
11 These practices are normal in partisan gerrymanders. For example, a North Carolina redistricting leader recently boasted that a redistricting map was drawn “to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” Anne Blythe, League of Women Voters Challenges NC Congressional Districts as Partisan Gerrymanders, The Charlotte Observer (Sept. 22, 2016), available at http:// www.charlotteobserver.com/news/politics-government/election/ article103489972.html.

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tuate the perceived common interests of one racial group” – or, here, political group – “elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.” Shaw v. Reno, 509 U.S. 630, 648 (1993); see LULAC, 548 U.S. at 471 n.10 (Stevens, J., concurring in part and dissenting in part); Corbett A. Grainger, Redistricting and Polarization: Who Draws the Lines in California?, 53 J.L. & Econ. 545, 554-55, 562 (2010) (finding in California “a striking pattern in which polarization increases significantly when districts are legislatively drawn and slows (or even decreases) when districts are drawn by panels”).
Worse yet, in gerrymandered States, politicians are “beholden not to a subset of [their] constituenc[ies], but to no part of [their] constituenc[ies].” Vieth, 541 U.S. at 331 (Stevens, J., dissenting). The constituency that matters to politicians is “those who drew the map rather than those who cast ballots,” id., because that constituency controls politicians’ electoral fate. This creates an unseemly system of patronage where legislators owe fealty to party leadership rather than the people. See id. at 331 n.25 (analogizing partisan gerrymanders to “rotten boroughs” in Britain).
Amici ’s experiences bear this out. As a result of partisan gerrymanders, politicians feel constrained to toe their legislative leaders’ agenda at the expense of their own, their constituents’, or even good governance. They privately confess they cannot vote as they otherwise would because they fear retribution by legislative and party leaders. They worry that they may be left out of the spoils of redistricting during the next map-drawing cycle. The result is deadlocked legislatures that fail to serve the public

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interest because they are composed of members (willingly or unwillingly) committed to supporting opposing agendas and for whom cross-party collaboration or compromise is therefore taboo. See App. 8a-9a (“Once the party caucuses come to a majority result, the other members of the party are expected to follow the party line . . . . [I]t is extremely difficult to pass legislation through a bipartisan coalition.”); App. 139a n.227 (“[T]here appears to be very little effort to woo colleagues from ‘across the aisle’ either to sponsor or to support legislation originating with the other party.”). As Senator Danforth recently explained, “[g]overnment is broken”; “Congress is at a stalemate because party activists won’t permit compromise.”12
It is no surprise that “[i]ntelligent voters, regardless of party affiliation, resent this sort of political manipulation of the electorate for no public purpose” and simply cease participating in a game they view as rigged. Bandemer, 478 U.S. at 177 (Powell, J., concurring in part and dissenting in part). Indeed, 71% of the public opposes partisan gerrymandering.13 But because self-interested politicians maintain legislative control, they are able to stymie meaningful reform.
12 Remarks by John C. Danforth, Acceptance of the Winston Churchill Medal for Leadership, St. Louis, Missouri, at 3 (June 8, 2017), available at https://www.nationalchurchillmuseum. org/cmss_files/attachmentlibrary/17-06-08--JCD-Churchillacceptance-remarks.pdf.
13 See The Harris Poll, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013), available at http://www.theharrispoll.com/politics/Americans_Across_Party_ Lines_Oppose_Common_Gerrymandering_Practices.html.

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II. THE DISTRICT COURT APPLIED A WORKABLE AND RELIABLE STANDARD FOR IDENTIFYING PARTISAN GERRYMANDERS
Although this Court has long held that constitutional challenges to partisan gerrymandering are justiciable, see LULAC, 548 U.S. at 413-14; Bandemer, 478 U.S. at 118-27, it has yet to endorse a specific test for evaluating the merits of such challenges. Prior disagreements, however, should not stop this Court from affirming. Wisconsin’s redistricting plan was indefensible. Its sole purpose – which it achieved – was to entrench one political party. By affirming the district court’s decision, this Court at the very least will cause legislatures to pause and reconsider whether to enact similarly severe partisan gerrymanders in the future. But a contrary decision will embolden even more egregious gerrymanders.
This Court has been appropriately concerned with developing a standard for future partisan gerrymandering cases that sufficiently cabins judicial discretion. The district court’s standard satisfies those concerns and should be adopted. To be sure, the court’s standard may require refinement in future cases. But this Court should not allow the search for a perfect standard to be the enemy of adopting a good one. As this Court’s prior experiences show, tests for unconstitutional redistricting practices can be adequately refined through judicial experience.
A. This Court Has A Long Tradition Of Deciding Cases That Remedy Legislative Malapportionment
Appellants’ argument (at 36-41) that this Court should declare partisan gerrymandering claims nonjusticiable is contrary to “the greatest tradition of

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this Court,” which has been “forthright enforcement” of the principle that “the form of government must be representative.” Baker v. Carr, 369 U.S. 186, 261-62 (1962) (Clark, J., concurring); accord Vieth, 541 U.S. at 309-10 (Kennedy, J., concurring in the judgment) (“It is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied.”). At every step of this Court’s redistricting jurisprudence, it has encountered the same warnings that the issues were too political or too complex for courts to address. The Court has rightfully declined to shy away from such questions as a result of those warnings, and it should do so again here.
Fifty-five years ago, Justice Frankfurter, echoing his earlier opinion in Colegrove v. Green, 328 U.S. 549 (1946), warned the Court not to wade into redistricting disputes because, in his view, “injecting [the Court] into the clash of political forces in political settlements” would undermine “public confidence in its moral sanction” and would “catapult[ ]” it into a “mathematical quagmire.” Baker, 369 U.S. at 267-68 (Frankfurter, J., dissenting). The Court rejected those warnings and held that challenges to legislative apportionment were justiciable, in part because “[t]he courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Id. at 217 (majority). Two terms later, Justice Harlan issued similar warnings, contending that redistricting was “an area which [courts] have no business entering” because “cases of this type are not amenable to the development of judicial standards.” Reynolds, 377 U.S. at 620-21 (Harlan, J., dissenting). The

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Court once again rejected those calls for judicial avoidance: “We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.” Id. at 566 (majority).
In the decades since Baker and Reynolds, this Court’s decisions have demonstrated that the concerns over courts entering the “political thicket” were manageable. In those cases, the Court did not demand a perfect test from the start. Rather, it began with “a few rather general considerations” instead of “precise constitutional tests.” Id. at 578. In Reynolds, for example, it declared the “overriding objective” of achieving “substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen,” while allowing for “divergences from a strict population standard” so long as such divergences “are based on legitimate considerations incident to the effectuation of a rational state policy.” Id. at 578-79. Courts successfully implemented that objective despite “repeated disputes over the permissibility of deviating from perfect population equality,” and this Court provided guidance when necessary to “elaborate[ ] on the scope of the one-person, one-vote rule.” Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016).
The legacy of “one person, one vote” is one of success. In 1960, districts “presented little more than crazy quilts, completely lacking in rationality.” Reynolds, 377 U.S. at 568. In every State, the largest district had at least twice as many people as the smallest district. See On Democracy’s Doorstep at

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291. And quite often that ratio was much larger. For example in California, Los Angeles’s six million people could elect a single state senator, whereas rural counties with 14,000 people could also elect a single state senator; in one Connecticut district, a House member represented 191 people, whereas in another district a House member represented more than 80,000 people. See id. Those gross disparities would likely still exist today had this Court not addressed them. See Reynolds, 377 U.S. at 569-70 (“At the time this litigation was commenced, there had been no reapportionment of seats in the Alabama Legislature for over 60 years. Legislative inaction, coupled with the unavailability of any political or judicial remedy, had resulted, with the passage of years, in the perpetuated scheme becoming little more than an irrational anachronism.”) (footnotes omitted).
To be sure, implementing “one person, one vote” – the requirement “that the vote of any citizen is approximately equal in weight to that of any other citizen,” id. at 579 (emphasis added) – has been far from easy. It has required courts regularly to confront close cases that pit the ideal of “perfect population equality” against the realities of “accommodat[ing] traditional districting objectives, among them, preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness.” Evenwel, 136 S. Ct. at 1124. As the Court in Reynolds predicted, however, determining “on a case-by-case basis” how much deviation from mathematical equality the Constitution permits has been a “satisfactory means of arriving at detailed constitutional requirements in the area of state legislative apportionment.” 377 U.S. at 578.

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Indeed, the essential question in one-person, onevote cases (How much deviation from perfect population equality is too much?) is no easier to answer than the question at the heart of partisan gerrymandering cases (“[H]ow much partisan dominance is too much[?],” LULAC, 548 U.S. at 420 (Kennedy, J.)). Both questions require patient, case-by-case development, but neither is impossible to answer. Likewise here, the Court should not allow any absence of an “easily administrable standard,” Vieth, 541 U.S. at 290 (plurality) (emphasis added), to stand in the way of developing a standard for partisan gerrymandering claims that is sufficiently administrable. See id. at 310 (Kennedy, J., concurring in the judgment) (“Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against [partisan] gerrymandering.”).
Racial gerrymandering claims have also attracted the same warnings. See, e.g., Shaw, 509 U.S. at 661 (White, J., dissenting) (arguing that the Court’s endorsement of racial gerrymandering claims would “invite constant and unmanageable intrusion”). This Court, however, held that racial classifications in redistricting are subject to strict scrutiny because of their “lasting harm to our society.” Id. at 657 (majority). In the wake of Shaw, courts conduct a “holistic analysis” to determine whether race was “the legislature’s predominant motive for the design of the district as a whole.” Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 800 (2017). Courts have faithfully applied that standard, and this Court has announced further refinements when necessary. Although the “holistic analysis” may present disputed

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(and close) questions of fact, courts are well-equipped to decide those issues. See Cooper v. Harris, 137 S. Ct. 1455, 1468-69, 1474-78 (2017) (affirming court’s factual determinations regarding intent).
The Court should reject claims of futility or unworkability here, too. The harms of partisan gerrymandering present an urgent and solvable problem today, just as gross population disparities did half a century ago and racial gerrymanders have in more recent history. As set forth below, the district court’s standard provides a sound starting point for identifying these unconstitutional practices, and that standard can be refined through further experience as necessary.
B. The District Court’s Standard Reliably Identifies Unconstitutional Gerrymanders And Cabins Judicial Discretion
The redistricting plan at issue presents an easy case. The record is replete with evidence that the drafters of the redistricting plan put partisan advantage above all else. Draft plans were ranked according to how successful they would be at entrenchment. See App. 133a-135a. Once the drafters settled on a plan (the one with the greatest degree of partisan advantage), the only information provided to legislators was that the plan generated tremendous partisan advantage. See App. 136a. In substance, this plan was no different than “draw[ing] [districts] so as most to burden Party X’s rights to fair and effective representation,” which this Court has never doubted would violate the Constitution. Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment); id. at 292, 293 (plurality).
Nonetheless, amici share this Court’s concern that, because “[p]olitics and political considerations are

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inseparable from districting and apportionment,” Gaffney, 412 U.S. at 753, the framework for evaluating alleged partisan gerrymanders must incorporate “rules to limit and confine judicial intervention,” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). The demanding standard applied below appropriately limits judicial discretion. If necessary, this Court can provide even further guidance by endorsing some (or all) of the evidence presented in this case as reliable indicia of an unconstitutional partisan gerrymander.
1. The district court held that a redistricting plan becomes an unconstitutional partisan gerrymander if it “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” App. 109a-110a. An impediment is “severe” when it is designed “to entrench a political party in power” and thereby “make the political system systematically unresponsive to a particular segment of the voters based on their political preference.” App. 117a & n.170.
This test restricts the discretion of courts so that only severe partisan gerrymanders will be struck down. The intent prong ensures that courts strike down only those redistricting plans animated by an invidious intent to favor one political party. This requirement excludes from judicial review redistricting plans that merely have the effect of favoring a particular political party. Courts would have no discretion to disrupt a plan where one party has a natural advantage because the other party’s voters are geographically concentrated. See Vieth, 541 U.S. at 290 (plurality) (“[P]olitical groups that tend to

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cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a ‘natural’ packing effect.”). Nor would courts be able to reject a redistricting plan solely on the basis of any single metric that happens to show that a plan favors a particular political party. See infra pp. 30-32 (discussing the partisan-bias and efficiency-gap metrics).
The effects prong removes discretion to strike down redistricting plans on the basis of ordinary political considerations. As this Court has noted, the natural consequence of entrusting redistricting to legislatures is that the legislature will consider political effects. See Vieth, 541 U.S. at 281 (plurality). That is only natural. How legislatures draw districting lines affects their ability to be reelected. While mere consideration of political effects by itself would not satisfy the intent-to-entrench prong, amici share a concern that courts improperly may infer an intentto-entrench from ordinary political calculations. That discretion is removed by requiring evidence that the plan has an actual effect of entrenchment.
2. If this Court deems it necessary, it can provide further guidance on the future application of the district court’s standard by adopting some (or all) of the key types of evidence presented in this case as reliable indicia of an unconstitutional gerrymander. The district court’s opinion identifies three such types of evidence.
First, efforts to maximize partisan advantage are a reliable indicator of intent to entrench a political party. This type of evidence serves to distinguish between severe partisan gerrymanders that consolidate political party control and redistricting efforts that merely consider the political effects of redistricting

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(which occurs in almost every case). Cf. Bandemer, 478 U.S. at 127 (plurality) (inferring intent from effects). Moreover, for redistricting plans that permissibly draw district lines to “more closely reflect[ ] the distribution of state party power,” LULAC, 548 U.S. at 419 (Kennedy, J.) – like the plans at issue in LULAC, id., and Gaffney, 412 U.S. at 754 – there will be no evidence of an intent to maximize partisan advantage.
Conversely, evidence of efforts to maximize party advantage likely will be present for severe partisan gerrymanders. In such gerrymanders, political parties use software to determine which redistricting plans provide the greatest advantage, and they tout that advantage as a feature of the plan.14
Indeed, as the district court catalogued in detail here, every aspect of the process revealed an effort to game the system as much as possible for partisan advantage. See App. 126a-140a. The foundation for drafting was “a composite partisan score that accurately reflected the political make-up of population units,” App. 126a; the maps were named for
14 See, e.g., Patrick Gannon, Has Political Gerrymandering Gone Too Far?, Citizen-Times (June 24, 2016) (state representative telling redistricting committee that “partisan advantage” was one of the criteria and “acknowledg[ing] freely that this will be a political gerrymander”), available at http://www.citizentimes.com/story/opinion/columnists/syndicated/2016/06/24/statecolumnist-political-gerrymandering-gone-far/86328724/; John Fritze, Lawsuit Forces Maryland Democrats To Acknowledge the Obvious: Redistricting Was Motivated by Politics, Balt. Sun (June 1, 2017) (deposition testimony of former Maryland Governor Martin O’Malley that it was his “hope” and “intent” to create additional districts “more likely to elect a Democrat than a Republican” even though such an approach may not be “good for our country as a whole”), available at http://www. baltimoresun.com/news/maryland/politics/.

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how “aggressive” they were, App. 127a-128a; spreadsheets and statistical analyses were commissioned to evaluate the relative political performance of each map – meaning how much the maps favored one political party over another, App. 128a-135a; and memos and presentations showcased to the Republican caucus the political advantage the new apportionment plan would yield, including entrenching party members for the next decade, App. 136a-138a.
Second, at least two metrics are reliable indicators of an entrenchment effect. The first is substantially similar to the “partisan bias” test addressed in LULAC, which may have “utility in redistricting planning and litigation.” 548 U.S. at 419-20 (Kennedy, J.). That test compares the share of legislative seats each party will win given similar shares of the popular vote. It thus measures whether the redistricting plan has a built-in advantage for one of the political parties.
That test can be based on either actual or hypothetical election results. Both types of evidence existed here. There were actual election results where the share of votes for Republicans and Democrats reversed from 2012 to 2014 (48.6% Republican and 51.4% Democrat in 2012; 52% Republican and 48% Democrat in 2014). See App. 154a. Yet, when the two parties each received a virtually identical percentage of the vote, Republicans won 24 (out of 99) more seats than Democrats. See id. And the map makers’ own redistricting consultant projected hypothetical election results (based on a large set of historical voting data) showing that, at any specific share of the statewide vote, Republicans would win at least 14 more districts (out of 99) than Democrats would. See App. 150a n.257 (for example, estimating

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that Republicans would have a 58 to 41 legislative advantage if the popular vote were evenly split).
The second metric is the “efficiency gap.” This metric measures the difference between the “wasted” votes of each party as a percentage of all votes cast. See generally Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 849-53 (2015). A higher efficiency gap indicates that the voters of one party have been “packed” into safe districts or “cracked” across multiple districts controlled by the other party so that it will be more difficult for that party to convert votes into electoral victories. The “efficiency gap” is easily calculated according to a mathematical formula. See id. It is no more difficult to administer than the “maximum population deviation” metric that has become a centerpiece of this Court’s “one-person, one-vote” jurisprudence. See Evenwel, 136 S. Ct. at 1124 & n.2.
Historical voting data provide a baseline for courts to assess whether any particular efficiency gap reflects a partisan gerrymander. Those historical data show that an efficiency gap of 7-8% for state legislatures is exceptionally high. See App. 163a166a; Stephanopoulos & McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. at 885-89. Here, the efficiency gap favored Wisconsin Republicans in 2012 and 2014 by 13% and 10%, respectively, and is unlikely to drop below 7% under any reasonably conceivable electoral outcome. See App. 162a-163a, 165a. That is powerful evidence that Wisconsin’s redistricting plan was a severe partisan gerrymander that had the effect of “packing” and “cracking” the voters of one party to create structural advantages for the other party.

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Notably, neither of these metrics requires or even promotes “some form of rough proportional representation.” Bandemer, 478 U.S. at 145 (O’Connor, J., concurring in the judgment). The “partisan bias” metric compares the relative voting strength of the different political parties’ voters. It does not measure whether the voters of a particular party are able to translate their share of the electorate into a proportional share of representation. And the efficiency gap assumes non-proportional representation. Based on historical data, it establishes a baseline that “each additional percentage point of vote share for a party should result in an extra two percentage points of seat share.” Stephanopoulos & McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. at 854.
Third, a plan’s resiliency to changes in voter sentiment is a reliable indicator of both intent and effect. Resiliency evidence that is contemporaneous with the enactment of a redistricting plan may show, for example, that legislators considered how the plan would react to changes in voter sentiment. Such evidence indicates an intent to entrench a political party. Resiliency evidence can also arise after a redistricting plan has been enacted through expert testimony regarding the resiliency of the plan to changes in voter sentiment. There may also be actual election evidence showing whether a redistricting plan is resilient to changes in voter sentiment.
This case presented each type of resiliency evidence. Contemporaneous with redistricting, the map drawers commissioned statistical analyses of “the partisan performance of [each] map under all likely electoral scenarios,” which showed they would be able to keep “a comfortable majority” of 54 seats even if their vote

34
share fell to 48%. App. 131a, 135a. Stress-testing maps against shifts in voting behavior is a clear signal of intent to entrench. The authors of the redistricting plan even touted the plan’s resilience to their caucus. See App. 136a-138a. Expert witnesses for both sides testified that Republicans would maintain a comfortable legislative majority under any likely electoral scenario, including scenarios in which Democrats win a comfortable majority of statewide votes. See App. 149a-154a. And actual voting data showed that Republicans maintained a healthy majority despite losing the popular vote. This evidence showed the effect of the plan was to entrench the Republican Party in Wisconsin.
Adopting resiliency evidence as an indicator of partisan gerrymandering will appropriately focus courts on severe partisan gerrymanders that have the effect of undermining majority rule and polarizing legislators. Such gerrymanders cement an unfair partisan advantage over multiple election cycles, allowing a political party to retain its power throughout a redistricting cycle (regardless of likely shifts in popular sentiment) and make it more likely that the same party can enact a fresh gerrymander the next cycle. Texas Democrats, for example, were able to retain a majority of the State’s congressional seats and state House seats throughout the 1990s, despite Republicans receiving up to 59% of the statewide vote – a margin that ordinarily should produce a legislative supermajority. See LULAC, 548 U.S. at 410-11 (Kennedy, J.). So too with California Democrats. See supra pp. 13-14. Because these structural electoral advantages insulate politicians from their constituents’ preferences and lead to polarized legislative bodies that have proven to be increasingly un-

35

able to solve challenging policy problems in a timely, sustainable or bipartisan manner, this Court should strike them down as unconstitutional.
CONCLUSION The judgment of the district court should be affirmed.
Respectfully submitted,

CHARLES FRIED 1563 Massachusetts Avenue Cambridge, MA 02138 (617) 495-4636
September 5, 2017

DAVID C. FREDERICK Counsel of Record
DANIEL V. DORRIS MATTHEW R. HUPPERT KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W. Suite 400 Washington, D.C. 20036 (202) 326-7900 (dfrederick@kellogghansen.com)

 
 No. 16-1161
IN THE
SUPREME COURT OF THE UNITED STATES
BEVERLY R. GILL, et al., Appellants, v.
WILLIAM WHITFORD, et al., Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF FOR THE STATES OF OREGON, ALASKA, CALIFORNIA, CONNECTICUT, DELAWARE, HAWAII,
ILLINOIS, IOWA, KENTUCKY, MAINE, MASSACHUSETTS, MINNESOTA, NEW MEXICO, NEW YORK, RHODE ISLAND, VERMONT, WASHINGTON, AND
THE DISTRICT OF COLUMBIA AS AMICI CURIAE IN SUPPORT OF APPELLEES
ELLEN F. ROSENBLUM Attorney General of Oregon
BENJAMIN GUTMAN* Solicitor General
ERIN K. GALLI JONA J. MAUKONEN CECIL RENICHE-SMITH JORDAN R. SILK
Assistant Attorneys General 1162 Court Street Salem, Oregon 97301-4096 Phone: (503) 378-4402 benjamin.gutman@doj.state.or.us *Counsel of Record (Additional counsel listed on signature page)

QUESTION PRESENTED Did the district court correctly find that a purposeand-effects test was a manageable way to determine whether Wisconsin engaged in unconstitutional partisan gerrymandering?
i

TABLE OF CONTENTS Page
QUESTION PRESENTED .......................................... i INTEREST OF THE AMICI STATES ....................... 1 SUMMARY OF ARGUMENT .................................... 1 ARGUMENT ............................................................... 3 A. Extreme partisan gerrymandering harms the
States and their citizens, and technological advances have made it easier to accomplish. ....... 3 B. A purpose-and-effects test is manageable and adequately accounts for the States’ legitimate interests. .............................................. 9 1. Invidious intent is crucial and is satisfied
when a map is chosen for the purpose of entrenching a party against any realistic majoritarian challenge................................... 10 2. The test also demands long-term partisan-entrenching effects that cannot be justified by other legitimate considerations................................................. 13 3. Contrary to concerns expressed by Texas, a purpose-and-effects standard is not likely to result in widespread invalidation of state districting maps. ............................... 16 CONCLUSION.......................................................... 20
ii

TABLE OF AUTHORITIES
Cases Akins v. Texas, 325 U.S. 398 (1945) .......................... 10 Brown v. Iowa Legislative Council, 490 N.W.2d 551
(Iowa 1992) ............................................................... 7 Cooper v. Harris, 137 S. Ct. 1455 (2017)................... 10 Davis v. Bandemer, 478 U.S. 109 (1986)..................... 4 Gaffney v. Cummings, 412 U.S. 735 (1973) .............. 11 Karcher v. Daggett, 462 U.S. 725 (1983) ................... 14 League of United Latin Am. Citizens v. Perry, 548
U.S. 399 (2006) ................................................... 3, 14 Vieth v. Jubelirer, 541 U.S. 267 (2004) ..............passim Washington v. Davis, 426 U.S. 229 (1976) ................ 10
Constitutional Provisions Alaska Const., art. 6, § 8 ........................................... 18 Ariz. Const., art. 4, pt. 2, § 1(3) ................................. 18 Cal. Const., art. 21, § 2(a)-(d) .................................... 18 Cal. Const., art. 21, § 2(e) .......................................... 19 Colo. Const., art. 5, § 48(1)(a)-(d) .............................. 18 Conn. Const., art. III, § 6........................................... 19 Fla. Const., art. III, §§ 20, 21(a) ................................ 19 Haw. Const., art. 4, § 2 .............................................. 18
iii

Me. Const., art. IV, pt. 1, § 3 ..................................... 19 Me. Const., art. IV, pt. 3, § 1-A ................................. 18 Mo. Const., art. 3, § 2................................................. 18 Mont. Const., art. 5, § 14 ........................................... 18 N.J. Const., art. 4, § 3 ............................................... 18 N.Y. Const., art. 3, § 4(c)(5) ....................................... 19 Ohio Const., art. XI, § 1 ............................................. 18 Penn. Const., art. 2, § 17(a)-(b) ................................. 18 Wash. Const., art. 2 § 43(2) ....................................... 18 Wash. Const., art. 2, § 43(5) ...................................... 19
Statutes Del. Code Ann. tit. 29, § 804(4) ................................. 19 Haw. Rev. Stat. Ann. § 25-2(b)(1).............................. 19 Idaho Code § 72-150................................................... 18 Iowa Code Ann. § 42.4(5) ........................................... 19 Mont. Code Ann. § 5-1-115(3).................................... 19 Or. Rev. Stat. § 188.010(2) ........................................ 19 R.I. Pub. Laws 2011, ch. 100, § 1 .............................. 18 R.I. Pub. Laws 2011, ch. 106, § 1 .............................. 18 Vt. Stat. Ann. tit. 17, §§ 1904, 1906 .......................... 18
iv

Rules
Mass. House R. 17 & 18A .......................................... 18
Mass. Sen. R. 12......................................................... 18
Other Authorities
Altman, Micah & McDonald, Michael, Promise & Perils in Redistricting, 5 Duke J. Const. L. & Pub. Pol’y, 69 (2010)........................................... 6, 12
Boehm, Theodore R., Gerrymandering Revisited— Searching for a Standard, 5 Ind. J. L. & Soc. Equality 59 (2016) ................................................ 5, 7
Engstrom, Richard L. & McDonald, Michael D., Quantitative Evidence in Vote Dilution Litigation: Political Participation and Polarized Voting, 17 Urb. Law. 369 (1985) .............................. 7
Hirsch, Sam, The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting, 2 Elec. L. J. 179 (2003) ................................................ 4
Levitt, Justin, Weighing the Potential of Citizen Redistricting, 44 Loy. L.A. L. Rev. 513 (2011) ........ 5
McCue, Kenneth F., California Inst. of Tech., Creating California’s Official Redistricting Database (2011) ........................................................ 6
McCully, Catherine, U.S. Bureau of the Census, Designing P.L. 94-171 Redistricting Data for the Year 2020 Census, The View from the States (2014) .................................................................... 6, 7 v

Neb. Leg. Res. 102 (1st Session 2011)....................... 19 Ortiz, Daniel R., Got Theory?, 153 U. Pa. L. Rev.
459 (2004) ................................................................. 8 Rave, D. Theodore, Politicians As Fiduciaries, 126
Harv. L. Rev. 671 (2013) .......................................... 7 Royden, Laura & Li, Michael, Brennan Center for
Justice, Extreme Maps (2017) .................................. 5 Va. Exec. Order No. 31 (2011) ................................... 18 Wang, Samuel S.-H., Three Tests for Practical
Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263 (2016) ................................. 3, 6, 7
vi

INTEREST OF THE AMICI STATES
This case is about how to strike the right constitutional balance between ensuring fair elections and respecting the normal political process. The amici States are uniquely qualified to assist the Court in striking that balance. We have a strong interest in ensuring that our elections reflect core democratic principles. Many of us are also defendants in redistricting litigation and have an equally strong interest in ensuring that the courts apply reasonable and manageable legal standards in cases like this one.
The States have a wealth of experience with redistricting and, as explained below, have taken a wide variety of approaches to prevent invidious partisan gerrymandering in that process. That is as it should be in our federalist system, and we do not suggest that any one approach to redistricting ought to be enshrined in constitutional law. But we are united in our conclusion that the Constitution sets outer limits on extreme partisan gerrymandering, that those limits are judicially enforceable and do not intrude on the States’ legitimate interests, and that on the facts found by the district court here, Wisconsin’s districting map exceeded the outer limits of what is constitutional.
SUMMARY OF ARGUMENT
Intentional partisan entrenchment—that is, deliberately drawing districts for the purpose of keeping one party in power for the long term, and without any neutral justification for the result—has no place in our political system. It discourages voter participa-

2
tion, increases distrust of government, and reduces the responsiveness of elected representatives. Technological advances have made it easier than ever for mapmakers to draw district lines solely to maximize the political power of a particular party. There is a pressing need for the courts to identify a manageable legal standard that prohibits the most egregious examples of partisan gerrymandering while still respecting the legitimate considerations that inform redistricting decisions.
A purpose-and-effects test is such a standard. It requires proof of both invidious intent and a partisanentrenching result that cannot be explained by neutral considerations. A proper understanding of this standard’s limits should allay the fears voiced by the Texas et al. amicus brief that the standard would invalidate numerous state districting maps. The district court correctly struck down Wisconsin’s map not because it failed one particular metric in a single year, but because it was invidiously intended to, and did, entrench a single party in power all the way through the next redistricting cycle under any likely electoral scenario, and because the goal of partisan entrenchment was the only explanation for the resulting map
A purpose-and-effects test also leaves ample room for States to continue to experiment with different approaches to redistricting. Many States have taken steps to limit or prevent partisan abuse of the redistricting process, including having nonpartisan or bipartisan groups draw the maps, banning considera-

3
tion of partisan affiliation or other data in the mapmaking process, or requiring supermajority votes. The Constitution does not require any of these approaches, but they show—contrary to Texas amici’s and the Wisconsin legislature’s argument—that partisan politics is not the sine qua non of redistricting.
ARGUMENT
Voting forms the foundation of our representative democracy. It serves as a vehicle for voicing preferences and for holding lawmakers accountable to constituents. No other mode of civic participation conveys the will of the people as well as voting. Extreme partisan gerrymandering threatens the benefits that our polity realizes from voting. The courts can and should play a role in protecting those benefits.
A. Extreme partisan gerrymandering harms the States and their citizens, and technological advances have made it easier to accomplish.
Gerrymandering has played a role in American politics since the early eighteenth century. Vieth v. Jubelirer, 541 U.S. 267, 274–75 (2004) (plurality op.); Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263, 1266–67 (2016) (describing historical examples). Both major parties have engaged in partisan gerrymandering. See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 410–13 (2006) (opinion of Kennedy, J.) (describing Texas plans that

4
favored Democrats at one time and Republicans at another).
But what is not a normal or accepted redistricting practice is purposefully entrenching a single political party in power for the long term under any realistic electoral scenario, regardless of whether a majority of voters support that party. Although this Court has not yet agreed on a manageable standard for assessing the legality of partisan gerrymandering, it has recognized unanimously that extreme partisan gerrymandering violates the Constitution. See Vieth, 541 U.S. at 292–93 (plurality op.) (―We do not disagree with [the] judgment‖ that ―severe partisan gerrymanders [are incompatible] with democratic principles‖; ―[t]he issue . . . is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred‖; ―an excessive injection of politics is unlawful‖) (emphasis in original). And a majority of this Court has never abandoned the view, established in Davis v. Bandemer, 478 U.S. 109, 125 (1986), that those constitutional limitations are judicially enforceable. Vieth, 541 U.S. at 309–10 (Kennedy, J., concurring in the judgment).
Extreme partisan manipulation of the redistricting process is problematic because it can effectively insulate a political party from any realistic attempt by the populace to unseat it. Sam Hirsch, The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting, 2 Elec. L. J. 179, 202 (2003). In other words,

5
political control may be determined by the mapmakers, not the voters. Id.
The problem is especially acute when the mapmakers are able to entrench one party in power all the way through the next redistricting cycle, thereby ensuring that the same party gets to draw another noncompetitive map that continues the entrenchment. Extreme partisan gerrymandering thus can be self-reinforcing, because it can ―shift the terrain on which all future political activity is negotiated.‖ Justin Levitt, Essay: Weighing the Potential of Citizen Redistricting, 44 Loy. L.A. L. Rev. 513, 518 (2011).
Enormous improvements in computer technology have revolutionized the way in which districts can be drawn, allowing even more invidious partisan entrenchment. See Laura Royden & Michael Li, Brennan Center for Justice, Extreme Maps 3 (2017)1 (―Technology and a growing flood of money into the redistricting process are, by broad consensus, only making the situation‖ of partisan gerrymandering ―worse.‖); Theodore R. Boehm, Gerrymandering Revisited—Searching for a Standard, 5 Ind. J. L. & Soc. Equality 59, 60 (2016) (―[M]odern technology has substantially facilitated a temporary majority’s ability to perpetuate its dominance of a legislative body.‖). Today, mapmakers can draft and change many different proposed maps in rapid succession using electronic
1 Available at http://www.brennancenter.org/sites/default/ files/publications/Extreme%20Maps%205.16.pdf (last accessed Aug. 31, 2017).

6
databases, computer software, and statistical techniques. Wang, supra, at 1267; see also Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment) (―Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months.‖).
Along with improvements in computer technology, ―advances in communication technology have made it possible to gather fine-grained data to micro-target[] district boundaries.‖ Micah Altman & Michael McDonald, The Promise & Perils of Computers in Redistricting, 5 Duke J. Const. L. & Pub. Pol’y 69, 77 (2010). States receive and store vast amounts of highly detailed data to use in redistricting—including data from the Census Bureau about race, ethnicity, age, voting history, health coverage, and work status. Catherine McCully, U.S. Bureau of the Census, Designing P.L. 94-171 Redistricting Data for the Year 2020 Census: The View from the States 5, 17–18, 22 (2014).2 Mapmakers can supplement the Census Bureau’s population information with election-related data including on partisan affiliation and voting history. Kenneth F. McCue, California Inst. of Tech., Creating California’s Official Redistricting Database 5–8 (2011).3
2 Available at https://www.census.gov/rdo/pdf/TheView FromTheStates_2020.pdf (last accessed Aug. 31, 2017).
3 Available at http://statewidedatabase.org/d10/Creating% 20CA%20Official%20Redistricting%20Database.pdf (last accessed Aug. 31, 2017).

7
Mapmakers can use mapping programs to evaluate the effects of drawing a line in one place or the next block over, recalculating how the new districts will affect a plan’s adherence to various redistricting criteria. McCully, supra, at 8; see also Brown v. Iowa Legislative Council, 490 N.W.2d 551, 552–53 (Iowa 1992) (describing how factors can be added or removed in computer generated redistricting maps); Richard L. Engstrom & Michael D. McDonald, Quantitative Evidence in Vote Dilution Litigation: Political Participation & Polarized Voting, 17 Urb. Law. 369, 373–77 (1985) (explaining the use of regression analyses and other calculations to predict whether voters belonging to particular racial minority group vote for specific candidates). More detailed data and computer-based district mapping provide the means to create maps that ―give undue advantage to whichever political party controls redistricting.‖ Wang, supra, at 1269. Thus technological tools enable States to draw and evaluate district boundaries ―in exquisite details‖ and ―enhance the possibility that gerrymandered districts may be more durable now than they were even ten years ago.‖ Id. at 1267–68.
Durable party entrenchment through extreme gerrymandering causes real, identifiable harms to the democratic system, and to individual voters. It undercuts the fundamental premise that our republican form of government is representative. Moreover, by allowing fewer competitive races, it discourages voter participation, makes the public more distrustful of government, and reduces the responsiveness of elected representatives. Boehm, supra, at 62; D. Theodore

8
Rave, Politicians As Fiduciaries, 126 Harv. L. Rev. 671, 684–85 (2013); Daniel R. Ortiz, Got Theory?, 153 U. Pa. L. Rev. 459, 486–87 (2004). And it subverts the very purpose of periodic redistricting, which is to make the legislature more responsive—not less responsive—to voters. Cf. Ortiz, supra, at 476–77 (―Nearly every special feature of the House’s design‖ including direct election, regular reapportionment, and frequent elections, ―was meant to ensure that it, unlike the other primary structures of the federal government, was highly responsive to public sentiment.‖).
Of course, there are entirely legitimate reasons why a State may have a large number of noncompetitive elections. Voters may simply prefer the policies of one party over the other overwhelmingly. Or voters with similar political views may tend to cluster in the same areas, meaning that district lines drawn based on reasonable geographic considerations will favor one particular party. Or one party may be poorly organized, leading it to field candidates who have no real chance of garnering majority support. Those circumstances by themselves are not constitutionally problematic. On the contrary, they reflect the ordinary democratic process working as it should to reflect the will of the people.
What are problematic, however, are extreme districting maps that are invidiously intended to, and do, ensure noncompetitive elections despite the absence of the kinds of normal political considerations described above. Those maps inflict avoidable harms

9
on the democratic process and on individual voters, and undermine the public’s trust in government. The amici States have a strong interest in preventing those harms.
B. A purpose-and-effects test is manageable and adequately accounts for the States’ legitimate interests.
Any test for unconstitutional partisan gerrymandering should require proof of both invidious intent and the actual effect of extreme partisan entrenchment that is likely to endure through multiple election cycles and is inexplicable by neutral considerations. The map at issue here cannot satisfy any such test, and the district court’s judgment therefore should be affirmed. The concerns raised by Texas amici, and particularly their assessment that maps in dozens of States will be invalid if partisan gerrymandering claims are justiciable, are overstated. Even a map under which one party achieved an entrenched, long-lasting partisan advantage would be constitutional unless the map was adopted with invidious intent and the effect could not be explained by neutral factors. Amici anticipate that such cases will be rare, and that under a purpose-and-effects test, the States will continue to enjoy broad latitude in conducting redistricting.

10
1. Invidious intent is crucial and is satisfied when a map is chosen for the purpose of entrenching a party against any realistic majoritarian challenge.
Under a purpose-and-effects test, it is not enough for a plaintiff to show that a State’s districting map has the effect of entrenching one political party in power. Rather, the plaintiff must also show that this was the purpose of adopting the map. Although the district court did not articulate the outer limits of what it would take to establish a constitutional violation, it held that the intent component was satisfied here, where the evidence showed that Act 43 was adopted for the deliberate purpose of entrenching a party against any realistic challenge until the next redistricting. J.S. App. 126a.
Those conclusions are correct. Invidious intent is a necessary component of the constitutional standard. This Court’s equal protection jurisprudence holds that a law’s ―disproportionate impact,‖ standing alone, is insufficient to show a constitutional violation. Washington v. Davis, 426 U.S. 229, 239 (1976). Instead, ―a purpose to discriminate‖ must be established. Id. (quoting Akins v. Texas, 325 U.S. 398, 40304 (1945)); cf. Cooper v. Harris, 137 S. Ct. 1455, 146364 & n.1 (2017) (explaining the required ―legislative intent‖ showing for a claim of racial gerrymandering under the Equal Protection Clause).
And not just any consideration of voters’ political affiliation will establish invidious intent. In Gaffney

11
v. Cummings, 412 U.S. 735, 754 (1973), for example, this Court drew a distinction between the use of political affiliation in the redistricting process to ―provide a rough sort of proportional representation in the legislative halls of the State,‖ and its use ―to minimize or eliminate the political strength of any group or party,‖ suggesting that the former was permissible and that the latter was not.
But the Court need not decide here whether it is ever legitimate to consider political affiliation in districting. Regardless what the outer limits might be, they do not include districting for the purpose of entrenching a single party against any realistic majoritarian challenge through the next redistricting. Modifying a political boundary for the purpose of achieving that kind of entrenchment goes too far; that is, the use of political affiliation in drawing boundaries becomes impermissible if the affiliation is ―applied in an invidious manner or in a way unrelated to any legitimate legislative objective.‖ Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (emphasis added); see also id. at 321, 336–37 (Stevens, J., dissenting) (explaining that ―purpose [is] the ultimate inquiry,‖ and that ―[u]ntil today, however, there has not been the slightest intimation in any opinion written by any Member of this Court that a naked purpose to disadvantage a political minority would provide a rational basis for drawing a district line‖); id. at 350 (Souter, J., dissenting) (test for impermissible partisan gerrymandering should include assessment of whether ―the defendants acted intentionally to manipulate the shape of the district in order to pack or

12
crack [the plaintiff’s political] group‖); id. at 360 (Breyer, J., dissenting) (use of political affiliation is ―unjustified‖ when ―the minority’s hold on power is purely the result of partisan manipulation and not other factors‖).
Proving intent can be difficult. But the very technologies that have made it easier to engage in intentional partisan gerrymandering also may make it easier to discern intent. The computer tools used to create redistricting maps do not decide on their own to weigh partisan criteria; they weigh the criteria they are programmed to consider. See Altman & McDonald, supra, at 89. Knowing what inputs the mapmakers were asked to use, what shifts were made, what future scenarios were run, and what other maps were being considered provides direct insight into the intent of those controlling the process. See Vieth, 541 U.S. at 312–13 (Kennedy, J., concurring in the judgment) (noting that ―[t]echnology is both a threat and a promise,‖ and that ―new technologies may produce new methods of analysis‖ that ―would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards‖).
This case provides a good example. Planners developed Act 43 through a process in which they commissioned a number of redistricting plans—all of which complied with traditional neutral redistricting criteria—and then manipulated the political boundaries on those maps to assess the partisan advantage that the modified boundaries would provide. J.S.

13
App. 126a–140a (setting out findings regarding process through which Act 43 was developed). The map ultimately enacted in Act 43 was selected, and the others rejected, due to its greater capacity to secure one party’s legislative majority throughout the decennial period and, thus, its capacity to devalue to the greatest extent possible the votes of individuals whom the mapmakers believed held contrary political viewpoints. Id. 140a.
Because it incorporates a requirement of invidious intent, a purpose-and-effects test should leave States with plenty of leeway to experiment with different approaches to redistricting. So long as a districting plan is not adopted for the specific purpose of entrenching a single party in power through the next redistricting, there is no constitutional violation. No sophisticated statistical analysis of a state’s maps is required.
2. The test also demands long-term partisan-entrenching effects that cannot be justified by other legitimate considerations.
A purpose-and-effects test also requires proof that the districting map was likely to have its intended effect: that it would ensure that one party remained in power through the next redistricting under any likely electoral scenario regardless of shifts in voter allegiance. The court also would have to find that this effect could not be explained by any legitimate, neutral considerations, such as the State’s political geography or its efforts to comply with the Voting

14
Rights Act. See Karcher v. Daggett, 462 U.S. 725, 740 (1983) (identifying as legitimate considerations ―making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives‖).
This attention to effects is also an appropriate part of the constitutional standard. As in other kinds of cases, a plaintiff must show ―a burden, as measured by a reliable standard, on the complainants’ representational rights.‖ League of United Latin Am. Citizens, 548 U.S. at 418 (plurality op.). Thus, a districting map is not an unconstitutional partisan gerrymander unless it in fact achieves extreme, longterm partisan entrenchment.
This means that States have ample room to try different approaches to redistricting without running afoul of the Constitution. Here too, the technologies that make it easier to engage in invidious partisan gerrymandering also give the States the tools to avoid liability. States can and do use computer programs to draw multiple maps that satisfy various legitimate criteria, make detailed predictions about electoral results under a range of possible scenarios, and determine whether any particular map gives one party or the other an unfair advantage.
And even if the map a State chooses does appear to give advantage to a party, sophisticated software can help the State determine if the advantage is caused by political geography or some other legitimate consideration. In other words, it can show if the predicted effects of the map on partisan entrench-

15
ment can be explained by neutral factors, in which case the map should pass constitutional scrutiny. Cf. Vieth, 541 U.S. at 312–13 (Kennedy, J., concurring in the judgment) (noting that ―new technologies may . . . make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties‖).
Most importantly, if this Court endorses particular metrics as suggestive of satisfying the effect prong of the test, States will be able to model those metrics and ensure that their maps stay within the bounds this Court sets.
In this case, the district court analyzed the effects of Act 43 with proper deference to legitimate state interests. It found that Act 43 achieved entrenchment of one party against any realistic majoritarian challenge, and its findings are amply supported by the evidence of the actual 2012 and 2014 election results and statistical analyses corroborated by those election results. J.S. App. 145a–154a (setting out findings regarding discriminatory effect and concluding that ―[i]t is clear that the drafters [of Act 43] got what they intended to get‖). Those statistical analyses showed that the entrenchment would last at least through the decade, and possibly beyond, even if a majority of voters supported candidates from the out-of-power party at historic levels. Id. 148a–154a. The court also found that Act 43’s party-entrenching effects could not be explained by any legitimate state concerns or neutral factors bearing on the apportionment process,

16
including Wisconsin’s natural political geography. Id. at 177a–218a.
Thus, the district court correctly held that Act 43 was unconstitutional.
3. Contrary to concerns expressed by Texas amici, a purpose-and-effects standard is not likely to result in widespread invalidation of state districting maps.
Texas amici suggest that the district court’s approach would have invalidated redistricting plans in 36 States over the past few decades. Texas Br. 25. But that assertion is based on just one part of the effects analysis, the efficiency gap. Under a proper purpose-and-effects test, effects alone are not enough. Even assuming an efficiency gap alone satisfied the effects prong (and the district court did not so hold), plaintiffs in other states would also have to show that those effects were intended.
Texas amici also err in focusing on a single metric—the efficiency gap—and assuming that if a State’s election results in a single year yield a high efficiency gap, the effects prong is satisfied and the map is unconstitutional. Texas Br. 26. A purposeand-effects test in this context would have to look at a full range of metrics, including not only analyses of available election results, but also projections of the map’s likely effect over the course of the whole decade until the next redistricting. And Texas amici ignore that even a large efficiency gap is not a problem if it

17
can be explained by something other than intentional partisan entrenchment for the long-term—for example, if the members of one party tend to cluster more in particular parts of the State than do members of the other party, or if the State has large numbers of uncontested elections.
Properly applied, a purpose-and-effects standard will invalidate only the most extreme maps, like the one drawn by Act 43, where all legitimate considerations are subordinated to the single goal of long-term partisan entrenchment against any realistic majoritarian challenge. Those maps lie well outside our nation’s historical traditions, and we expect that they will be rare—especially if this Court affirms here and thus makes it clear that there are constitutional limits on partisan entrenchment.
More generally, however, Texas amici (as well as the Wisconsin legislature) exaggerate the extent to which exclusive or near-exclusive focus on partisan ends is an inevitable feature of redistricting. Nearly half of the States, including some that joined Texas amici’s brief, have taken formal steps that reduce or eliminate the influence of partisan considerations on redistricting. This shows that partisan politics is not a necessary component of the redistricting process.
For example, many States require maps to be drawn by a group that is nonpartisan or bipartisan. Six States—Alaska, Arizona, California, Idaho, Montana, and Washington—have delegated the task of redistricting to independent commissions, on which elected officials may not serve as members. Alaska

18
Const., art. 6, § 8; Ariz. Const., art. 4, pt. 2, § 1(3); Cal. Const., art. 21, § 2(a)–(d); Idaho Code § 72-1502; Mont. Const., art. 5, § 14; Wash. Const., art. 2 § 43(2). Another six States—Colorado, Hawaii, Missouri, New Jersey, Ohio and Pennsylvania—use bipartisan commissions. Colo. Const., art. 5, § 48(1)(a)-(d); Haw. Const., art. 4, § 2; Mo. Const., art. 3, § 2; N.J. Const., art. 4, § 3, ¶ 1; Ohio Const., art. XI, § 1; Penn. Const., art. 2, § 17(a)-(b).
Even in a number of States where the legislature retains authority over redistricting, the initial task of recommending a map for legislative approval is delegated to a bipartisan ―advisory commission.‖ See, e.g., Mass. Sen. R. 124; Mass. House R. 17 & 18A5; Me. Const., art. IV, Pt. 3, § 1-A; R.I. Pub. Laws 2011, ch. 106, § 1; R.I. Pub. Laws 2011, ch. 100, § 1; Vt. Stat. Ann. tit. 17, §§ 1904, 1906; Va. Exec. Order No. 31 (2011). A districting map drawn through a nonpartisan or bipartisan process should be virtually unchallengeable as a partisan gerrymander, because plaintiffs will not be able to establish the intent prong—the invidious purpose of long-term partisan entrenchment.
Some states (including some which employ the nonpartisan or bipartisan commissions discussed above) also have chosen to limit the use of partisan affiliation to draw district lines, as a matter of state
4 Available at https://malegislature.gov/Laws/Rules/Senate (last accessed Aug. 31, 2017).
5 Available at https://malegislature.gov/Laws/Rules/House (last accessed Aug. 31, 2017).

19
law. Nine States—California, Delaware, Florida, Hawaii, Iowa, Montana, New York, Oregon, and Washington—expressly bar state officials from drawing district lines for the purpose of favoring or disfavoring a political party. Cal. Const., art. 21, § 2(e); Del. Code Ann. tit. 29, § 804(4); Fla. Const., art. III, §§ 20, 21(a); Haw. Rev. Stat. Ann. § 25-2(b)(1); Iowa Code Ann. § 42.4(5); Mont. Code Ann. § 5-1-115(3); N.Y. Const., art. 3, § 4(c)(5); Or. Rev. Stat. § 188.010(2); Wash. Const., art. 2, § 43(5). Two of those nine States, Iowa and Montana, prohibit officials from using political data—such as past election results or voters’ party registrations—in drawing districts. See, e.g., Iowa Code Ann. § 42.4(5); Mont. Code Ann. § 5-1-115(3). Nebraska has a similar restriction. Neb. Leg. Res. 102 (1st Session 2011).
Finally, States also have adopted procedures that make the adoption of extreme partisan gerrymanders unlikely as a practical matter. For example, two States—Connecticut and Maine—require a two-thirds supermajority to approve redistricting plans, thus making it easier for a minority party to block a plan that is unfair. Conn. Const., art. III, § 6; Me. Const., art. IV, pt. 1, § 3.
None of these particular steps is required as a matter of federal constitutional law. As discussed, in most States the legislature draws the district maps. These deliberative bodies can and routinely do redraw their maps free of any invidious purpose, and without presenting the risk of permanent partisan entrenchment that necessitates a judicial response. A

20
constitutional standard prohibiting the most egregious forms of intentional, long-term partisan entrenchment therefore would still afford the States considerable leeway in their redistricting processes, and would not cause the widespread disruption that Texas amici fear. It would also vindicate the core democratic principles enshrined in our Constitution.
CONCLUSION
The Court should affirm the district court’s judgment.
Respectfully submitted,
ELLEN F. ROSENBLUM Attorney General of Oregon
BENJAMIN GUTMAN Solicitor General Counsel of Record
ERIN K. GALLI JONA J. MAUKONEN CECIL RENICHE-SMITH JORDAN R. SILK
Assistant Attorneys General 1162 Court Street Salem, Oregon 97301-4096 Phone: (503) 378-4402 benjamin.gutman @doj.state.or.us
September 5, 2017
(Counsel listing continues on next page)

JAHNA LINDEMUTH Attorney General of Alaska
1031 W. Fourth Ave., Suite 200 Anchorage, AK 99501

LISA MADIGAN Attorney General of Illinois
100 West Randolf Street 12th Floor Chicago, IL 60601

XAVIER BECERRA Attorney General of California
1300 I Street Sacramento, CA 95814

THOMAS J. MILLER Attorney General of Iowa
1305 East Walnut Street Des Moines, IA 50319

GEORGE JEPSEN Attorney General of Connecticut
55 Elm Street Hartford, CT 06106

ANDY BESHEAR Attorney General of Kentucky
700 Capitol Avenue Frankfort, KY 40601

MATTHEW P. DENN Attorney General of Delaware
820 North French Street Wilmington, DE 19801

JANET T. MILLS Attorney General of Maine
6 State House Station Augusta, ME 04333

DOUGLAS S. CHIN Attorney General of Hawaii
425 Queen Street Honolulu, HI 96813

MAURA HEALEY Attorney General of Massachusetts
One Ashburton Place Boston, MA 02108

LORI SWANSON Attorney General of Minnesota
102 State Capitol 75 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155

ROBERT W. FERGUSON Attorney General of Washington
1125 Washington St. SE Olympia, WA 98504

HECTOR BALDERAS Attorney General of New Mexico
408 Galisteo Street Santa Fe, NM 87501

KARL A. RACINE Attorney General for the District of Columbia
441 4th Street, NW Washington, DC 20001

ERIC T. SCHNEIDERMAN Attorney General of New York
120 Broadway, 25th Floor New York, NY 10271

PETER F. KILMARTIN Attorney General of Rhode Island
150 South Main Street Providence, RI 02903

THOMAS J. DONOVAN, JR. Attorney General of Vermont
109 State Street Montpelier, VT 05609

 
 No. 16-1161

IN THE
Supreme Court of the United States
_________
BEVERLY R. GILL, et al., Appellants,
v.

WILLIAM WHITFORD, et al.,

_________

Appellees.

On Appeal from the
United States District Court for the Western District
of Wisconsin _________

BRIEF OF AMICI CURIAE LEAGUE OF CONSERVATION VOTERS ET AL. IN SUPPORT OF APPELLEES _________

CARY E. ADICKMAN

IRA M. FEINBERG

MADELINE H. GITOMER Counsel of Record

HUNTER J. KENDRICK

HOGAN LOVELLS US LLP

HOGAN LOVELLS US LLP 875 Third Avenue

555 Thirteenth St., NW New York, NY 10022

Washington, DC 20004 (212) 918-3000

(202) 637-5600

ira.feinberg@hoganlovells.com

SUSAN M. CRAWFORD

PINES BACH LLP

122 West Washington

Avenue, Suite 900

Madison, WI 53703

Counsel for Amici Curiae

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES...................................... iii

STATEMENT OF INTEREST ....................................1

SUMMARY OF ARGUMENT.....................................5

ARGUMENT ...............................................................9

I. POLITICAL SCIENCE RESEARCH SHOWS THAT A REAPPORTIONMENT PLAN WITH A LARGER EFFICIENCY GAP WILL RESULT IN ADOPTION OF MORE PARTISAN AND EXTREME POLICIES ...........................................................9

II. THE EXPERIENCE IN WISCONSIN

SINCE 2011 DEMONSTRATES THAT

THE LEGISLATURE HAS ADOPTED

MORE PARTISAN AND EXTREME

POLICIES

THAT

DISREGARD

LONGSTANDING

BIPARTISAN

CONSENSUS ON MANY KEY ISSUES.......... 15

A. Drastic Budget Cuts Have Undermined Wisconsin’s Longstanding Commitment to Public Education ............ 15

1. Reducing Support for K-12 Public Schools ...................................... 15

2. Cutting Funding for the University of Wisconsin System......................... 20

(i)

TABLE OF CONTENTS

Page(s)

B. The Dismantling of the NonPartisan Government Accountability Board Has Sullied Wisconsin’s Reputation as a Model of Good Government............................................... 23
C. Extreme Policies Enacted Since the Redistricting Plan Have Tarnished Wisconsin’s Strong Bipartisan Tradition of Natural Resources Conservation and Environmental Protection.......... 31
CONCLUSION .......................................................... 39

(ii)

iii TABLE OF AUTHORITIES
Page(s) STATUTES:
Act of June 30, 1906, Pub. L. No. 59-398, Chapter 3929, § 2, 34 Stat. 805 .............................3
1989 Wis. Act 31 .....................................................31 1993 Wis. Act 16 .....................................................18 1993 Wis. Act 437 § 9145(1x)(b).......................16, 19 1997 Wis. Act 171 ...................................................37 2003 Wis. Act 33 .....................................................16 2007 Wis. Act 1 .......................................................26 2007 Wis. Act 227 ...................................................32 2011 Wis. Act 21 .....................................................33 2011 Wis. Act 32 § 2582 .........................................19 2013 Wis. Act 1 .......................................................38 2013 Wis. Act 20 § 9148 .........................................21 2015 Wis. Act 188 ...................................................29 Wis. Stat. § 19.81(1)................................................24 Wis. Stat. § 20.........................................................38 Wis. Stat. § 36.01(2)................................................20 Wis. Stat. § 121.91(2m)(g)(4)..................................19 Wis. Stat. § 227.10 et seq. .......................................33 Wis. Stat. § 293 .......................................................38 Wis. Stat. § 295 .......................................................38 CONSTITUTIONAL PROVISIONS: Wis. Const. art. X (1848) ........................................15 Wis. Const. art. X....................................................18

iv
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES:
“2007 Wis. Act 1: Roll Call Vote,” Wis. Assemb. J., Spec. Sess. (Jan. 30, 2007) ...............26
“2007 Wis. Act 1: Roll Call Vote,” Wis. S. J., 98th Reg. Sess. (Jan. 30, 2007).......................26
Stephen Ansolabehere et al., Candidate Positioning in U.S. House Elections, 45 Am. J. Pol. Sci. 136 (2001) ..............................13
Assemb. Bill 426, 2011-2012 Leg. (Wis. 2012)............................................................37
Scott Bauer, State’s Nonpartisan Election Board Ends; Two Partisan Boards Will Replace the 8-Year-Old Experiment; Elections Oversight New Entity Advised to ‘Follow the Law,’ Wis. State J. (June 27, 2016)...............................30
Molly Beck & Matthew DeFour, After Earlier Cuts, Scott Walker Proposes Spending Boost for Schools, Wis. State J. (Feb. 6, 2017)........................................................17
Kevin Beckman, Slashed Budgets Push University of Wisconsin Faculty to Minnesota, Minn. Daily (Sept. 19, 2016).............22
Lee Bergquist, New Poll Shows Majority Oppose Mining Bill, Milwaukee J. Sentinel (Feb. 25, 2013)................38
Bureau of Labor Statistics, CPI-All Urban Consumers (Current Series).................................19

v
TABLE OF AUTHORITIES—Continued
Page(s)
Siri Carpenter, How Scott Walker Dismantled Wisconsin’s Environmental Legacy, Sci. Am. (June 17, 2015) ..........................32, 34, 38
Devin Caughey et al., Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies ............................................11, 12, 13
James K. Conant, Wisconsin Politics and Government (2006) ................. 15, 16, 23, 31, 32, 34
Dep’t of Nat. Res., About the DNR.........................33
Katelyn Ferral, As the Government Accountability Board Ends, What’s the Future for Wisconsin Campaign Finance Regulation?, Capital Times (June 20, 2016) ............................29
Anthony Fowler & Andrew B. Hall, Long-Term Consequences of Election Results, 47 Brit. J. Pol. Sci. 351 (2017) ...............13
Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 Am. Pol. Sci. Rev. 541 (1994) .................................................................... 11
Gov’t Accountability Bd., 2008 GAB 1: Representation of Clients .....................................27
Christopher Hare et al., Polarization in Congress Has Risen Sharply, Where Is It Going Next?, Wash. Post (Feb. 13, 2014) ............14

vi
TABLE OF AUTHORITIES—Continued
Page(s)
Karen Herzog & Patrick Marley, Scott Walker Budget Cut Sparks Sharp Debate on UW System, Milwaukee J. Sentinel (Jan. 28, 2015)......................................................22
Karen Herzog, Wisconsin One of Few States Taking Up Higher Education Cuts, Milwaukee J. Sentinel (May 28, 2015)................21
Steven Huefner et al., From Registration to Recounts: Developments in the Election Ecosystem of Five Midwestern States (2011) ........................................................27
Steven Huefner et al., From Registration to Recounts: The Election Ecosystems of Five Midwestern States (2007) ......................23, 24
Samuel Issacharoff, Supreme Court Destabilization of Single-Member Districts, 1995 U. Chi. Legal F. 205 (1995)...........................9
Russ Kava & Layla Merrifield, State Aid to School Districts, Wis. Legislative Fiscal Bureau (Jan. 2007)............................................................16
Russ Kava & Rick Olin, Local Government Expenditure and Revenue Limits, Wis. Legislative Fiscal Bureau (Jan. 2013)......................................................18, 19
David S. Lee et al., Do Voters Affect or Elect Policies? Evidence from the U.S. House, 119 Q. J. Econ. 807 (2004) ...................................13

vii
TABLE OF AUTHORITIES—Continued
Page(s)
2 Legislative Fiscal Bureau, Comparative Summary of Budget Recommendations (Aug. 2011) .....................................................17, 18
Bill Leuders, Iron Mine Is Halted, But Battle Scars Remain, Wis. Watch (Mar. 17, 2015) ...............................................37, 38
Lower Wis. State Riverway Bd., Welcome .............31
Patrick Marley & Stacy Forster, Legislators Join Ethics Cause Late; Republicans Who Killed Bill Now Use Issue in Campaigns, Milwaukee J. Sentinel (Sept. 24, 2006) ..............25
Patrick Marley & Jason Stein, Assembly Approves Splitting GAB into Elections and Ethics Agencies, Milwaukee J. Sentinel (Oct. 21, 2015) ................29
Theodoric Meyer, In Wisconsin, Dark Money Got a Mining Company What It Wanted, Pro Publica (Oct. 14, 2014) ..................................37
Richard G. Niemi & Simon Jackman, Bias and Responsiveness in State Legislative Districting, 16 Legis. Stud. Q. 183 (1991) ........................................................11
Mark Pitsch, Board Comes Out Swinging; New Government Accountability Board is More Aggressive Than the Board It Replaces, Wis. State J. (Apr. 14, 2008)................................27

viii
TABLE OF AUTHORITIES—Continued
Page(s)
Mark Pitsch, Real Ethics Reform: This Time, They Might Be Serious: Supporters Say the Time is Right to Finally Get a Meaningful Bill Passed, Wis. State J. (Nov. 26, 2006) ...............................25
Press Release, Gov. Jim Doyle, Dec. 14, 2006 ........................................................26
Press Release, State Rep. Karl Van Roy, Jan. 30, 2007 ........................................................26
Press Release, State Rep. Scott Suder, Jan. 3, 2007 ..........................................................26
Reform Bandwagon is Filling Up Fast, The Sheboygan (Sept. 27, 2006) ..........................25
Steve Rundio, Scott Walker visits Tomah, Tomah J. (Sept. 8, 2010) ......................................16
Steven Salzberg, Scott Walker Takes $250 Million From U. Wisconsin, Gives $250M To Billionaire Sports Team Owners, Forbes (Aug. 14, 2015) .........................................21
Nico Savidge, UW-Madison Losing Ground to Competitors Amid Budget Cuts, Rebecca Blank Says, Wis. State J. (Sept. 15, 2016) ..............................................22, 24
Luke Schaetzel, Just How Much Has the UW System Lost Since 2011?, Observatory (Nov. 9, 2016) ..................................21
Ron Seely, Safe, Clean Drinking Water Eludes Many Wisconsinites, Minn. Post (Nov. 18, 2015) ............................36, 37

ix
TABLE OF AUTHORITIES—Continued
Page(s)
Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. R. 530 (2010) ...........................13
Patricia Simms, Wisconsin get D grade in 2015 State Integrity Investigation, Ctr. for Pub. Integrity (Nov. 9, 2015) ..........................28
State Ethics Panel Gets First Big Vote, Wis. State J. (Aug. 28, 2016) ...............................30
Jason Stein, Wisconsin Ethics Commissioner Resigns in Disgust, Milwaukee J. Sentinel (Dec. 12, 2016)................30
Nicholas O. Stephanopoulos, The Causes and Consequences of Gerrymandering (June 21, 2017).....................................................11
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) .............................................................14
Sen. Lena Taylor, GAB’s Obituary, Milwaukee Courier, July 2, 2016 ........................30
Ross Terrell, Study: Budget Cuts Is A Top Factor In Declining Faculty Morale At UW-Madison, Wis. Pub. Radio (Apr. 7, 2017)........................................................22
Presidential Comm’n on Election Admin., The American Voting Experience: Report and Recommendations (Jan. 2014) .....................27
The Pew Charitable Trs., The Elections Performance Index 2012 (Apr. 2014) ...................28

x
TABLE OF AUTHORITIES—Continued
Page(s)
Tommy Thompson, Government– University Collaboration at the Root of The Wisconsin Idea, Capital Times (Jan. 4, 2017)..................................................20, 22
Daniel P. Tokaji, America’s Top Model: The Wisconsin Government Accountability Board, 3 U.C. Irvine L. Rev. 575 (2013)....................24, 27
U.S. Census Bureau, Per Pupil Current Spending (PPCS) Amounts and OneYear Percentage Changes for PPCS of Public Elementary-Secondary School Systems by State: Fiscal Years 20072012 (May 22, 2014).............................................17
Univ. of Wis., The Wisconsin Idea..........................20
Steven Verburg, Fines for Pollution Fell to 30-Year Low in 2015, Wis. State J. (May 19, 2016)................................35
Steven Verburg, Gogebic Taconite Says Wisconsin Mine Isn’t Feasible; Cites Wetlands, EPA Wis. State J. (Feb. 28, 2015)................................................37, 38
Steven Verburg, Scott Walker, Legislature Altering Wisconsin’s Way of Protecting Natural Resources, Wis. State J. (Oct. 4, 2015) .......... 32, 33, 34, 35, 36
Steven Verburg, Secretary Cathy Stepp Leaving DNR to Join Donald Trump’s EPA (Aug. 30, 2017).............................................36

xi
TABLE OF AUTHORITIES—Continued
Page(s)
Sen. Kathleen Vinehout, Putting Political Parties Back in Charge of Elections and Ethics? (Oct. 14, 2015) .........................................28
Scott Walker Takes $250 Million From U. Wisconsin, Gives $250M To Billionaire Sports Team Owners, Forbes (Aug. 14, 2015) .....................................................21
Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263 (2016)..................................9
Jodi Wilgoren, In Wisconsin, Scandal, Outrage and Deficit Churn Up a Storm of Political Change, N.Y. Times (May 19, 2002) .....................................................................24
Cassandra Willyard, After Censoring Stories, Gov. Scott Walker Wants to Kill Off Self-Funded Outdoors Magazine, Colum. Journalism Rev. (May 1, 2017)............................35
Wis. Gov. Signs Budget Cutting Education $1.85B, CBS News (June 26, 2011).....................19
Wis. Budget Project, An Overview of Education Issues in the 2013–15 Budget (2013) .................................................................... 19
Wisconsin Elections Performance Index, The Pew Charitable Trs. (Apr. 2014)..................28
Wis. State Elections Bd., Results of Fall General Election (Nov. 7, 2006).....................25, 28
Wis. State Leg., Record of Committee Proceedings (2015) ...............................................28

xii
TABLE OF AUTHORITIES—Continued Page(s)
Dave Zweifel, Plain Talk: Next November, Remember Who Butchered Good Government In Wisconsin, Capital Times (Nov. 18, 2015).......................28, 29
Dave Zweifel, We, The People? No. We, The Irrelevant, Capital Times (Dec. 24, 2015) ...........29

IN THE
Supreme Court of the United States
_________
No. 16-1161 _________
BEVERLY R. GILL, et al., Appellants,
v.

WILLIAM WHITFORD, et al.,

_________

Appellees.

On Appeal from the
United States District Court for the Western District
of Wisconsin _________

BRIEF OF AMICI CURIAE LEAGUE OF CONSERVATION VOTERS ET AL. IN SUPPORT OF APPELLEES _________

STATEMENT OF INTEREST1
The League of Conservation Voters, National Education Association, Wisconsin Education Association Council, League of Women Voters of Wisconsin, Dr. Anthony Evers and George Meyer respectfully sub-

1 No party or counsel for a party authored this brief in whole or in part. No party, counsel for a party, or person other than amici curiae, their members, or their counsel made any monetary contribution intended to fund the preparation or submission of this brief. The parties have filed letters with the Clerk granting blanket consent to the filing of amicus curiae briefs in this case.

(1)

2
mit this brief as amici curiae in support of Appellees. Amici are organizations and individuals who closely monitor Wisconsin elections and government and are greatly concerned by the adverse impact of the partisan gerrymandering engineered by the State Legislature in 2011. As the court below found, Act 43 deliberately apportioned districts for State Senate and Assembly elections in a way that both guarantees that Republicans control the Legislature in numbers that far exceed their actual support among Wisconsin voters and has entrenched that control for nearly a decade. Amici have seen the dramatic effect on political life in Wisconsin, as the gerrymandering has enabled the Legislature to pursue a narrow partisan agenda that has undermined values and policies long held by a bipartisan majority of Wisconsin voters.
The League of Conservation Voters (“LCV”) is a non-profit environmental advocacy organization with more than two million members throughout the United States, including more than 58,000 members in Wisconsin, and has partner organizations in twenty-nine States including Wisconsin. LCV advocates for sound environmental law and policies, and works to elect pro-environment candidates who will champion clean energy, air and water issues irrespective of party affiliation.
The National Education Association (“NEA”) is a nationwide organization representing more than 3 million elementary and secondary teachers, higher education faculty, education support professionals, school administrators, retired educators, and students preparing to become educators. Chartered by an Act of Congress in 1906 “to elevate the character and advance the interests of the profession of teach-

3
ing, and to promote the cause of education in the United States,” Act of June 30, 1906, Pub. L. No. 59398, ch. 3929, § 2, 34 Stat. 805, NEA’s interest in this litigation stems from its concern that extreme partisan gerrymandering has eroded a longstanding bipartisan consensus on support for public education, which NEA regards as the cornerstone of our social, economic, and political structure and values.
The Wisconsin Education Association Council (“WEAC”) is an unincorporated organization whose membership includes over 34,000 teachers and other employees employed by public school districts in Wisconsin. WEAC’s purpose is to promote the interests of public education, the teaching profession and the welfare of members of the collective bargaining units that are affiliates of WEAC. The issues presented in this case are of special concern to WEAC members because the partisan gerrymandering has led to dramatic cutbacks in support for public education in Wisconsin.
The League of Women Voters of Wisconsin (“the League”) is a non-partisan organization that advocates for citizens’ rights to informed and active participation in government. The League has advocated for reforms to ensure that Wisconsin voting districts are drawn on a non-partisan basis since 1981. The League also strongly supports: legislative efforts to ensure that government officials are subject to the highest ethical standards; equal educational opportunities for children through an equitable state aid formula; and preservation of a healthy physical environment.
Dr. Anthony Evers is the Superintendent of Public Instruction of the State of Wisconsin, a statewide elective office charged with supervising public educa-

4
tion. He was elected to that non-partisan position in 2009 and has been re-elected twice, in 2013 and 2017. He previously served as Deputy Superintendent from 2001 to 2009. As Superintendent, Dr. Evers is the head of the Department of Public Instruction, the state agency responsible for advancing public education in Wisconsin. He is also an ex officio member of the state university’s Board of Regents. As the non-partisan guardian of the state’s public educational institutions, Dr. Evers is aware of the adverse impact of the State’s declining commitment to K–12 and higher education on Wisconsin’s longstanding tradition of excellence in education. Dr. Evers has recently announced his candidacy for Governor of Wisconsin in 2018, as a Democrat.
George Meyer is the Executive Director of the Wisconsin Wildlife Federation, a conservation group dedicated to the protection of Wisconsin’s fish and wildlife habitat for the benefit of Wisconsin hunters and fishermen. Before taking that position in 2003, Mr. Meyer worked for thirty-two years at the Wisconsin Department of Natural Resources. He was appointed as Secretary (or head) of the Department of Natural Resources by the state Natural Resources Board in 1993, was re-appointed by Republican Governor Tommy Thompson in 1995, and served in that capacity until 2001. Mr. Meyer is greatly concerned that the actions of the gerrymandered Legislature in recent years have undermined longstanding state conservation policies and disregarded what had been a bipartisan consensus in favor of protecting Wisconsin’s outdoor heritage.
SUMMARY OF ARGUMENT
The District Court found that the Republicancontrolled Wisconsin Legislature, through the use of

5
extensive computer modeling, created a redistricting plan that intentionally imposed a severe impediment on the effectiveness of the votes of Democratic voters. J.S. App. 3a, 126a-177a. The District Court explained that its conclusion on the discriminatory effect of the reapportionment was “bolstered” by plaintiffs’ evidence demonstrating a sizeable “efficiency gap.” Id. at 159a.
The “efficiency gap” is a simple tool for measuring the extent of partisan bias in a reapportionment plan, and thus the discriminatory effect of a gerrymander. It is an easily calculated ratio that quantifies the comparative relationship of one party’s “wasted votes”—votes cast in a losing race, or votes cast in a winning race in excess of the number necessary to win—to the other party’s. The size of the efficiency gap after redistricting thus illustrates the degree to which the gerrymander has successfully diminished the effectiveness of the other party’s votes.
This brief focuses on one of the most pernicious effects of a partisan gerrymander: that it results in the adoption of state policies that are more partisan and extreme than the broad middle of voters would support. Appellants’ brief (at 50), relying on the dissenting opinion of Judge Griesbach in the District Court, argues that a Republican legislator in a swing district will adopt more moderate, centrist positions than a Republican in a safe district. But this easy reassurance is of no relevance in assessing the effect of a partisan gerrymander. The goal of a partisan gerrymander—and the goal of the Wisconsin Legislature here—was to modify the composition of as many districts as possible so as to favor Republicans and create a safe Republican majority, by packing Demo-

6
cratic voters into a smaller number of overwhelmingly Democratic districts. Legislators in these Republican districts do not have to consider their Democratic constituents, or even the more moderate voices in their own party. Political science research has shown that these legislators will toe the party line regardless of the ideological midpoint of their constituency, and that, with their party’s majority secure, legislators will support more partisan policies that depart from any bipartisan consensus.
This brief first reviews recent political science research, which demonstrates that partisan gerrymanders with a high efficiency gap are strongly associated with adoption of state policies that are more partisan and extreme than the State’s median voter supports. This research also shows that the conventional wisdom relied upon by Appellants—that legislators from swing districts will gravitate towards the center—is mistaken. On the contrary, even in districts where the margin of victory was very small, analysis shows that there is a vast difference in the voting records of the elected representatives, depending upon whether the Democrat or Republican came out on top.
This brief will go on to show that, in fact, the adoption of more partisan and extreme policies is exactly what has happened in Wisconsin: since the adoption of the State’s redistricting plan in 2011, the longstanding bipartisan consensus on many state policies has been upended and replaced with partisan policies that are not supported by the Wisconsin public at large.
We explore in detail four examples, though there are many others that could be pursued if space permitted. First, in education, Wisconsin has long

7
prided itself on its strong support for K–12 public education, under both Republican and Democratic leadership. In the 1990s, Republican Governor Tommy Thompson pledged that the State would provide two-thirds of the funding for public schools. That strong commitment to public education has been the standard for Wisconsin ever since, leading to one of the best public school systems in the country. But since the reapportionment, state support for the public schools has been cut dramatically. State legislators have even restricted the ability of local governments to raise additional money to support their public schools, even when citizens of those localities attempt to raise their own taxes to pay for it.
Second, the effect of the gerrymandering on the University of Wisconsin system has also been dramatic. The University of Wisconsin system has long been one of the State’s crown jewels, and central to the “Wisconsin idea,” that the state university system exists to serve all state citizens and to benefit their lives far beyond the classroom. But since 2011, the Legislature has dramatically cut funding for the university system, even though up to 70% of state citizens opposed these budget cuts. The result has been devastating: hundreds of positions have been cut, faculty members have left for other universities, and even the Chancellor of the University’s flagship campus in Madison has had to admit that the quality of that campus has “slipped.”
Third, Wisconsin citizens have long been proud of their State’s well-deserved reputation for good, clean state government, ever since the era of Republican Governor Robert LaFollette a hundred years ago. As recently as 2007, the bipartisan consensus in support

8
of clean government led to creation of the Government Accountability Board, a non-partisan panel of former state judges to oversee state elections and the ethics of public officials. The Government Accountability Board was popular and effective, and hailed as a “worthy model” for other States. But despite this— and despite overwhelming Republican support just a few years earlier—the gerrymandered Legislature dismantled the Board in 2016, replacing it with two much weaker commissions, composed of openly partisan members, to oversee public officials’ ethics and elections.
Finally, Wisconsin residents have always treasured the State’s natural resources and wildlife, and there has long been strong bipartisan support for environmental protection and conservation to benefit all forms of outdoor recreation. But this bipartisan consensus has been ripped asunder since the reapportionment. The State’s Department of Natural Resources has been underfunded and subjected to political interference. The Legislature also passed a mining deregulation law for the benefit of one politically influential company, which weakened protections for wetlands and Lake Superior. The Legislature’s actions have significantly relaxed rules to address pollution, reduced protections for Wisconsin’s rivers and lakes, and undermined policies intended to protect the State’s wildlife and natural resources, despite broad popular support for these conservation policies.

9
ARGUMENT
I. POLITICAL SCIENCE RESEARCH SHOWS THAT A REAPPORTIONMENT PLAN WITH A LARGER EFFICIENCY GAP WILL RESULT IN ADOPTION OF MORE PARTISAN AND EXTREME POLICIES.
“Computer technology has evolved dramatically to the point that . . . actors are able to carve ever more intricate districting patterns that seek to advance a particular political agenda. . . . [T]he new computer technology allows virtually anyone to redistrict consistent with general equipopulation principles and rerun past elections across altered district lines to determine optimal future arrangements.” Those words were written twenty-two years ago. Samuel Issacharoff, Supreme Court Destabilization of SingleMember Districts, 1995 U. Chi. Legal F. 205, 232-33 (1995). In the intervening years, redistricting technology has become much more advanced, and accessible to legislators and individuals alike. See Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263, 1267 (2016) (noting that “even activists and ordinary citizens can enter the fray,” using free redistricting software).
With the power to redraw districts with nearly scientific precision to entrench a party in the legislature comes the temptation to exercise it. In adopting Act 43, the Wisconsin Legislature “intended and accomplished an entrenchment of the Republican Party likely to endure for the entire decennial period.” J.S. App. 107a. The drafters of the Wisconsin redistricting plan used a computer program with past election data and current demographic information to “assess the partisan make-up of the new

10
districts” they were drawing and create a “partisan score” to project the number of seats Republicans likely would win under various alternative maps. Id. at 17a-18a. The Legislature ultimately adopted a map that ensured a significant and durable partisan advantage for Republicans, which “would solidify Republican control.” Id. at 128a. In an environment where a legislature has the intent and capacity, with such stunning precision,2 to redraw districts to ensure that the party in power stays in power, it is increasingly important to be able to measure—and once measured, remedy—the discriminatory effect of partisan gerrymanders.
The “efficiency gap” is a simple and easily calculated tool for measuring the discriminatory effect of a gerrymander. For a given election, it is calculated by subtracting the “wasted” votes of one party from those of the other, and dividing by the total number of votes cast. Id. at 31a-33a. A “wasted” vote is one that did not help the chosen candidate win, and includes all votes for the losing candidate and all surplus votes for the winner above the minimum necessary to win. Id. It stands to reason that if one can increase an opposing party’s wasted votes through redistricting, the party in power can significantly increase the likelihood it will win more seats.
Recent political science research has shown that when a single party has control over redistricting,
2 The map drawers projected that the map would yield 59 Republican seats in the 99-seat Assembly; in the 2012 election, it actually yielded 60 Republican seats, J.S. App. 25a, 30a, even though Republican candidates won less than 50% of the popular vote statewide.

11
the efficiency gap is significantly increased in that party’s favor. A study of state legislative and congressional elections since 1972 by Professor Nicholas Stephanopoulos of the University of Chicago Law School reveals that unified party control over redistricting had a significant effect on the efficiency gap, resulting in a pro-Democratic increase of 3 to 3.5 percentage points when Democrats controlled the process and pro-Republican increase of 4.5 points when Republicans controlled it. Nicholas O. Stephanopoulos, The Causes and Consequences of Gerrymandering (June 21, 2017) (unpublished manuscript) (on file with the William & Mary Law Review).3 See also, e.g., Richard G. Niemi & Simon Jackman, Bias and Responsiveness in State Legislative Districting, 16 Legis. Stud. Q. 183, 195 (1991) (state legislative plans designed by Democrats had average proDemocrat bias of 4.1%, while Republican-drafted maps had average pro-Republican bias of 4.5%); Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 Am. Pol. Sci. Rev. 541, 553 (1994)4 (unified partisan control produced 3% bias in state legislative elections in favor of map-drawing party).
Recent research has evaluated the effect of the efficiency gap on state policy. Professors Caughey, Tausanovitch and Warshaw found that large efficiency gaps distort both legislative representation and policy results. See Devin Caughey et al., Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies 10-11
3 Available at goo.gl/pu8YkY.
4 Available at goo.gl/fJK8zg.

12
(unpublished manuscript) (on file with the Election Law Journal)5 (“Partisan Gerrymandering”) (years in which efficiency gap was more pro-Republican than average “tended to have more conservative roll-call voting behavior”); id. at 10-11, 12 (Figure 4) (same correlation for pro-Democratic efficiency gaps, to less severe extent). Moreover, as the efficiency gap grew in a more Republican direction, the median ideal point of the state legislators—i.e., the median point of legislators’ substantive policy positions—grew significantly more conservative. Id. at 12-14.
Their research also shows that legislatures whose redistricting plans are characterized by large efficiency gaps enact more extreme policies. Caughey, Tausanovitch and Warshaw found that:
[A] pro-Republican EG [Efficiency Gap] shifts the median state legislator markedly to the right, whereas a pro-Democratic EG shifts the median to the left. Analogously, state policies become more conservative when the EG favors Republicans and (with less certainty) more liberal when the EG favors Democrats. Though smaller than its effects on legislative medians, the EG’s policy effects are nonetheless substantial. Indeed, a one standard deviation change in the efficiency gap has a larger effect on state policy than a change in the party of the governor. Overall, these results suggest that partisan gerrymandering has major consequences not only for who wins elections, but for the political process as a whole.
Id. at 3; see also id. at 10-13.
5 Available at goo.gl/ftB6xP; see also goo.gl/iAJYdM.

13
Appellants argue (at 50) that a legislator in a swing district will align his or her policies with the median voter in order to win re-election. But the research shows that this conventional wisdom is mistaken. In close elections, electing a Republican legislator will result in more conservative roll-call voting, and electing a Democrat more liberal voting—legislators do not gravitate toward the center as Appellants argue. See Caughey et al., Partisan Gerrymandering 11; accord Anthony Fowler & Andrew B. Hall, LongTerm Consequences of Election Results, 47 Brit. J. Pol. Sci. 351 (2017)6; David S. Lee et al., Do Voters Affect or Elect Policies? Evidence from the U.S. House, 119 Q. J. Econ. 807 (2004)7 (finding that winning an election by a smaller margin does not result in more moderate policies); Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. R. 530 (2011).8 In other words, legislators will toe the party line even where it would otherwise appear to be in their selfinterest to conform to the median voter’s ideal point (ideological midpoint). See Caughey et al., Partisan Gerrymandering 6-8 (showing party affiliation’s effect on roll-call voting and state policy). Other studies show that legislators now trim much less toward the center, even in marginal districts, than they did in the mid-twentieth century. See Stephen Ansolabehere et al., Candidate Positioning in U.S. House Elections, 45 Am. J. Pol. Sci. 136 (2001)9; see
6 Available at goo.gl/yCZuX6.
7 Available at goo.gl/WC4thv.
8 Available at goo.gl/XaYQKa.
9 Available at goo.gl/NCjavs.

14 also Christopher Hare et al., Polarization in Congress Has Risen Sharply. Where Is It Going Next?, Wash. Post (Feb. 13, 2014).10 Appellants offer no political science research to support their position, because there is none.
Given the technological advances that have made it ever easier to produce a partisan advantage, recent decades have seen a massive increase in the magnitude of efficiency gaps in redistricting plans. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 876 (2015); see also SA 227.
Thus, the research shows that in redistricting plans characterized by large efficiency gaps, the party in power will translate votes to seats in the legislature more efficiently, win more seats, and enact more polarized policies. Given the recent tendency for redistricting plans to result in higher efficiency gaps, the trend of legislators in swing districts declining to conform their voting to the median voter, and the resulting more extreme policies that disregard the voters of the other party, it is more urgent than ever for this Court to address the kind of blatant effort to disenfranchise the voters of the other party that the District Court found here.
10 Available at goo.gl/uUW8f9.

15
II. THE EXPERIENCE IN WISCONSIN SINCE 2011 DEMONSTRATES THAT THE LEGISLATURE HAS ADOPTED MORE PARTISAN AND EXTREME POLICIES THAT DISREGARD LONGSTANDING BIPARTISAN CONSENSUS ON MANY KEY ISSUES.
The experience in Wisconsin since the 2011 reapportionment fully bears out the prediction of these academic researchers: on issue after issue, the gerrymandered legislature has adopted highly partisan policies that disregard a longstanding bipartisan consensus and are not supported by the broad majority of Wisconsin voters.
A. Drastic Budget Cuts Have Undermined Wisconsin’s Longstanding Commitment to Public Education.
The policies enacted by the Wisconsin Legislature since 2011 have resulted in a dramatic shift in education policy and priorities. Legislators have abandoned long-held bipartisan values concerning both the Kindergarten through Twelfth Grade (K– 12) public schools and the University of Wisconsin system.
1. Reducing Support for K–12 Public Schools
Wisconsin has long prided itself on its “extraordinary commitment” to K–12 public education. James K. Conant, Wisconsin Politics and Government 28 (2006). In 1848, voters ratified the State’s first constitution, including an article explaining the responsibilities of state and local governments to educate their children. Wis. Const. art. X (1848). Wisconsin has made education a budget priority since the early 1900s, and has given “generous

16
support to school districts” in the decades since. Conant, supra, at 27, 29. Since the redistricting, however, the Legislature has passed a series of substantial budget cuts that have weakened the State’s public education system. These budget cuts not only reduced overall funding for public schools, but abandoned a bipartisan policy to fund the public schools mainly through state, rather than local, contributions.
Historically, public education funding has been a bipartisan priority in Wisconsin. In the 1990s, Republican Governor Tommy Thompson pledged that the State would provide two-thirds of the funding for K–12 public schools. This pledge was enacted into law with bipartisan support. 1993 Wis. Act 437 § 9145(1x)(b). This pledge aimed to provide adequate per-pupil public education funding, while holding the line on local property taxes. From the pledge’s implementation in 1996 until its repeal in 2003, the State’s share of K–12 funding remained at 66%. Russ Kava & Layla Merrifield, State Aid to School Districts, Wis. Legislative Fiscal Bureau (Jan. 2007).11
Although the Legislature formally repealed the pledge in 2003, 2003 Wis. Act 33, the two-thirds funding pledge remained popular in Wisconsin. During his successful 2010 campaign for Governor, Scott Walker declared “it would be an aim” to restore state funding to two-thirds. Steve Rundio, Scott Walker visits Tomah, Tomah J. (Sept. 8, 2010).12
11 Available at goo.gl/LFqy78.
12 Available at goo.gl/QM4Qoz.

17
However, following the partisan gerrymander in 2011, the Republican-controlled Legislature, with Governor Walker’s support, drastically cut funding for K–12 public schools. Wisconsin’s 2011–2013 budget cut $792 million from aid to local K–12 schools. 2 Legislative Fiscal Bureau, Comparative Summary of Budget Recommendations 539 (Aug. 2011).13 The State’s share of K–12 funding dropped below 62%. Id. Per pupil spending in 2011–2012 dropped by 6.2% from 2010–2011, representing the largest per-pupil spending cut in the nation. The previous four years had seen increases of 2.6% to 4%. U.S. Census Bureau, Per Pupil Current Spending (PPCS) Amounts and One-Year Percentage Changes for PPCS of Public Elementary-Secondary School Systems by State: Fiscal Years 2007-2012 (May 22, 2014).14
Although Governor Walker recently released a proposed budget increasing state K–12 education funding, see Molly Beck & Matthew DeFour, After Earlier Cuts, Scott Walker Proposes Spending Boost for Schools, Wis. State J. (Feb. 6, 2017),15 the proposed increases are grossly insufficient to make up the ground lost with the 2011 cut.16
13 Available at goo.gl/b2Xs9R.
14 Available at goo.gl/mmb3T7.
15 Available at goo.gl/Ua4E6v.
16 Some of the legislative actions discussed in this brief took place during the Legislature’s 2011 session, before legislators were elected under the 2011 reapportionment plan, first used in 2012. However, work on the plan began in January 2011, and the first maps were drafted by April. J.S. App. 12a-14a. Act 43 was passed by the Senate and Assembly in July 2011, and

18
Moreover, the Legislature has eroded local jurisdictions’ autonomy over the amount of revenue they can raise for K–12 education. The state government’s obligation to make substantial financial contributions to local school districts is enshrined in the state’s constitution. See Wis. Const. art. X, § 5. But Wisconsin’s constitution also requires local governments to tax residents specifically for “the support of common schools.” Id. § 4. Cities and towns that fail to levy such taxes cannot receive state funding for K– 12 education. Id. § 5.
Since 1993, the State has limited the amount of additional money local governments can collect from local property taxes, 1993 Wis. Act 16, but has permitted local governments to override these revenue limits by referenda. Russ Kava & Rick Olin, Local Government Expenditure and Revenue Limits, Wis. Legislative Fiscal Bureau 7 (Jan. 2013).17 Under this system, local governments receive financial backing
signed by the Governor in August. At all times during the 2011 session, Republican legislators knew they had complete control of the reapportionment process and the ability (and will) to draw districts that would insulate Republican legislators from any serious challenge based on the policies they were implementing. As the District Court found, “from the outset of the redistricting process, the drafters sought to understand the partisan effects of the maps they were drawing,” and “were concerned with, and convinced of, the durability of their plan.” Id. at 138a, 139a. Indeed, in meetings with the Republican caucus, a staff member for the Majority Leader told them that the “maps we pass will determine who’s here 10 years from now.” Id. at 28a. This gave Republican legislators the freedom to enact highly partisan policies without concern for the electoral consequences or the popularity of their actions among the broader electorate.
17 Available at goo.gl/QH7kzN.

19
from the state, but retain the power—and the responsibility—to tax their residents to fund schools.
Since the 2011 redistricting, however, the Legislature has restricted the ability of local governments to fund the public schools themselves, which—in combination with the cuts in state funding—has severely restricted funding for public education in Wisconsin. Whereas every previous budget had increased the per-pupil revenue limit by $190 to $274, the 2011– 2013 state budget reduced the amount that school districts could collect by an average of $554 per pupil. Id. at 2-3; see also 2011 Wis. Act 32 § 2582 (codified at Wis. Stat. § 121.91(2m)(g)(4)) (reducing revenue cap by 5.5% per student). This restriction amounted to another $800 million cut, statewide, in overall funding for K–12 education. See Wis. Gov. Signs Budget Cutting Education $1.85B, CBS News (June 26, 2011).18 While recent state budgets have increased the per-pupil revenue cap, the increases have not kept pace with inflation. See Wis. Budget Project, An Overview of Education Issues in the 2013–15 Budget (2013)19 (noting that revenue cap increased by 0.8% in 2014 and 2015); Bureau of Labor Statistics, CPI-All Urban Consumers (Current Series)20 (calculating inflation rate as 1.9% for July 2014 and 1.8% for July 2015).
The recent history of K–12 education funding in Wisconsin illustrates how partisan gerrymandering affects policy. Secure in their electoral majority,
18 Available at goo.gl/ZpH1Y4.
19 Available at goo.gl/WbcDLE.
20 Available at goo.gl/W3dJKL (last visited Sept. 5, 2017).

20
legislators have abandoned decades-old policies in support of state funding for public schools, by slashing state funding and prohibiting Wisconsin citizens from offsetting the cuts through local referenda to increase their own taxes to fund schools.
2. Cutting Funding for the University of Wisconsin System
The effects of partisan gerrymandering on the University of Wisconsin System (the “UW System”) are similarly troubling. Despite a robust history of bipartisan support for the UW System, the redistricting legislators have cut funding for the System by over $360 million.
These cuts undermine the non-partisan “Wisconsin Idea,” a concept unique to Wisconsin, which views the University as a means to improve the quality of life for all the State’s citizens. Univ. of Wis., The Wisconsin Idea.21 The Wisconsin Idea is considered the guiding principle of the UW System. Tommy Thompson, Government–University Collaboration at the Root of The Wisconsin Idea, Capital Times (Jan. 4, 2017).22 The Wisconsin Idea derives from former UW-Madison President Charles Van Hise’s 1905 declaration that “I shall never be content until the beneficent influence of the [U]niversity reaches every home in the state.” Id. This concept is enshrined in state statute; by law, UW’s mission is “to extend knowledge and its application beyond the boundaries of its campuses and to serve and stimulate society.” Wis. Stat. § 36.01(2).
21 Available at goo.gl/jo8jdf (last visited Sept. 5, 2017).
22 Available at goo.gl/PwDVLb.

21
After the 2011 gerrymandering, however, the Wisconsin Idea, and the UW’s standing as one of the finest state university systems in the nation, are in jeopardy. In 2011, the Legislature imposed more than $100 million in budget cuts on the UW System. Luke Schaetzel, Just How Much Has the UW System Lost Since 2011?, Observatory (Nov. 9, 2016).23
Then, in 2015, the State cut the UW System’s budget by an additional $250 million, id., while largely preventing the university from raising tuition to cover costs, see 2013 Wis. Act 20 § 9148.24 These cuts were deeply unpopular with Wisconsin voters. A majority of Wisconsin citizens—between 64% and 70%—disapproved of Governor Walker’s original proposal to cut $300 million from the System’s budget. See Karen Herzog, Wisconsin One of Few States Taking Up Higher Education Cuts, Milwaukee J. Sentinel (May 28, 2015).25 The cuts adopted by the Legislature were also out of step with the rest of the country: Wisconsin was one of only six States to approve (or even consider) cuts in higher education funding that year. Id. From fiscal year 2012 to 2017, the UW System’s budget has been cut by a total of $362 million. Schaetzel, supra.
23 Available at goo.gl/VHSP21.
24 The same year, the Legislature approved a $250 million expenditure to build a new arena for Wisconsin’s professional basketball team, the Milwaukee Bucks. Steven Salzberg, Scott Walker Takes $250 Million From U. Wisconsin, Gives $250M To Billionaire Sports Team Owners, Forbes (Aug. 14, 2015), goo.gl/zndB3J.
25 Available at goo.gl/s8WaUE.

22
The UW System has suffered greatly from these cuts. Before the $250 million cut took effect, the UW System’s President announced moratoria on nonessential hiring, out-of-state travel, promotions, and non-statutory raises. See Karen Herzog & Patrick Marley, Scott Walker Budget Cut Sparks Sharp Debate on UW System, Milwaukee J. Sentinel (Jan. 28, 2015).26 UW-Madison was forced to eliminate 420 positions and fire 50 employees in 2016. Nico Savidge, UW-Madison Losing Ground to Competitors Amid Budget Cuts, Rebecca Blank Says, Wis. State J. (Sept. 15, 2016).27 UW-Madison Chancellor Rebecca Blank noted that the UW’s flagship campus had “slipped” because it could not serve its faculty or students as well as competitors. Id. For example, several departments at UW-Madison have more than 500 students per adviser, almost twice the recommended number. Id. Over 90% of faculty at UWMadison reported that the budget cuts had a negative impact on their morale. Ross Terrell, Study: Budget Cuts Is A Top Factor In Declining Faculty Morale At UW-Madison, Wis. Pub. Radio (Apr. 7, 2017).28 Faculty began leaving the UW System for other universities because budget cuts made it feel “perilous” to remain in Wisconsin. See Kevin Beckman, Slashed Budgets Push University of Wisconsin Faculty to Minnesota, Minn. Daily (Sept. 19, 2016).29
26 Available at goo.gl/jk1aSL.
27 Available at goo.gl/tRJSkr.
28 Available at goo.gl/ewFxSM. 29 Available at goo.gl/2To2w5.

23
Thus, far from supporting the Wisconsin Idea, legislators have ravaged the UW System’s budget and made it far more difficult for the System to live up to its mission.
B. The Dismantling of the Non-Partisan Government Accountability Board Has Sullied Wisconsin’s Reputation as a Model of Good Government.
Wisconsin citizens are proud of their “good government” reputation. Since the early 1900s, when Republican Governor Robert LaFollette “ushered in an era of reform,” Wisconsinites have come to expect “openness in government and honesty from their elected officials.” Steven F. Huefner et al., From Registration to Recounts: The Election Ecosystems of Five Midwestern States 111 (2007)30; accord Conant, supra, at 4. One historian suggests this commitment to good government stems, in part, from the State’s constitution, which was based, in part, on “the presumption that government has an important, positive role to play in society,” and that “strong popular control over elected officials was to be maintained.” Conant, supra, at 17. State legislators have reinforced this notion; since 1975, state law declares it “to be the policy of th[e] state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.” Wis. Stat. § 19.81(1).
The Government Accountability Board (“GAB”) was one of the most significant recent initiatives to
30 Available at goo.gl/MvLGxz.

24
ensure the integrity of state elections and public officials. The GAB was a non-partisan, independent enforcement body established in 2007 with strong bipartisan support to oversee state elections and enforce ethical standards for state officials. The GAB replaced two prior oversight bodies, the State Elections Board and State Ethics Board, which were criticized because their members were partisan appointees, resulting in weak oversight. To take the politics out of enforcement, members of the GAB had to be former judges. A candidate committee composed of court of appeals judges proposed potential members, and the governor was required to nominate GAB members from this list. Members were prohibited from engaging in political activities, and were ineligible if they had engaged in politics in the past. See Daniel P. Tokaji, America’s Top Model: The Wisconsin Government Accountability Board, 3 U.C. Irvine L. Rev. 575, 577-79 (2013).
The creation of the GAB arose out of a series of political scandals in the early 2000s. See Jodi Wilgoren, In Wisconsin, Scandal, Outrage and Deficit Churn Up a Storm of Political Change, N.Y. Times (May 19, 2002).31 Legislative leaders of both parties faced corruption investigations, leading to resignations and extensive negative publicity. Wisconsin residents were “dissatisf[ied] with how the state’s campaign finance and lobbying rules were being enforced,” and “believed that the state elections and ethics boards had been too lax in their enforcement.” Huefner, supra, at 115.
31 Available at goo.gl/4zndRH.

25
In 2005, a group of state legislators responded by introducing bipartisan ethics reform legislation, including creation of the GAB. At the time, however, control of state government was divided—the Governor was a Democrat, while Republicans controlled the Legislature—and the Republican leadership would not allow the bill to go forward. See Reform Bandwagon is Filling Up Fast, The Sheboygan, Sept. 27, 2006, at 5A. But once the 2006 election season began, lawmakers received a clear message from Wisconsin voters. Lawmakers in competitive districts, who had previously opposed the legislation, campaigned as “ethics reformers.” Patrick Marley & Stacy Forster, Legislators Join Ethics Cause Late; Republicans Who Killed Bill Now Use Issue in Campaigns, Milwaukee J. Sentinel, Sept. 24, 2006, at A1. Democratic challengers “hammered incumbent Assembly Republicans” for standing in the way of ethics reform. News reports noted that “even Republicans who opposed [ethics reform] this spring have vowed to work toward a compromise.” Mark Pitsch, Real Ethics Reform: This Time, They Might Be Serious: Supporters Say the Time is Right to Finally Get a Meaningful Bill Passed, Wis. State J., Nov. 26, 2006, at A1.
The result was that Democrats picked up eight seats in the Assembly and won control of the State Senate. Wis. State Elections Bd., Results of Fall General Election (Nov. 7, 2006).32 And responding to the voters’ message, the Assembly Speaker, Republican Mike Huebsch, who had previously blocked the legislation, pledged in a bipartisan
32 Available at goo.gl/toXJHC.

26
announcement to pass “major, bipartisan ethics reform early in 2007.” Press Release, Gov. Jim Doyle, Dec. 14, 2006.
Thus, ethics reform legislation, including creation of the GAB, was passed in early 2007, with unanimous Republican support. 2007 Wis. Act 1; see “2007 Wis. Act 1: Roll Call Vote,” Wis. Assemb. J., Spec. Sess. (Jan. 30, 2007);33 “2007 Wis. Act 1: Roll Call Vote,” Wis. S. J., 98th Reg. Sess. (Jan. 30, 2007).34 Voices on both sides of the aisle praised the legislation as a victory for good government. As one Republican state representative explained: “This bipartisan ethics reform package will help restore the public’s trust in their elected officials and Wisconsin’s reputation for clean, ethical government.” Press Release, State Rep. Scott Suder, Jan. 3, 2007. Another Republican lawmaker called the bill “the most sweeping ethics reform bill in Wisconsin history,” noting that “the citizens of this state deserve a clean and honest government.” Press Release, State Rep. Karl Van Roy, Jan. 30, 2007.
The GAB quickly established a reputation for independence and efficacy. In one of its first actions, the GAB overturned an Ethics Board policy that had provided special treatment to state lawmakers.35
33 Available at goo.gl/jyKxZj.
34 Available at goo.gl/4bLm6W.
35 The Ethics Board had allowed state lawmakers who were attorneys to communicate with state agencies on behalf of special purpose districts that the lawmaker represented in private practice. Opponents argued that allowing legislators, acting in their private capacity, to negotiate with state employees whose budgets they controlled in their lawmaker capacity created the appearance of impropriety and raised concerns

27
Gov’t Accountability Bd., 2008 GAB 1: Representation of Clients.36 This action was praised as showing “more steel and backbone” than the prior ethics enforcement agency. Mark Pitsch, Board Comes Out Swinging; New Government Accountability Board is More Aggressive Than the Board It Replaces, Wis. State J., Apr. 14, 2008, at A1.
The GAB was widely praised as a “worthy model” for other States. See Tokaji, supra, at 607. One elections expert wrote in 2011 that the GAB “achieves something that up until now has been a rarity in the United States: election administration that is independent of partisan politics.” Steven Huefner et al., From Registration to Recounts: Developments in the Election Ecosystem of Five Midwestern States (2011) at 43.37 In 2014, the bipartisan Presidential Commission on Election Administration, co-chaired by the former general counsels of the national Democratic and Republican Parties, cited the GAB as a “model,” particularly for its work in improving accessibility to polling places for the disabled. See Presidential Comm’n on Election Admin., The American Voting Experience: Report and Recommendations 52 (Jan. 2014).38 Researchers found in 2014 that Wisconsin had “dramatically improved its [election] data reporting between 2008 and 2012,” and had the second highest voter partici-
about potential special treatment. The GAB voted to bar the practice.
36 Available at goo.gl/BYTAjP (last visited Sept. 5, 2017). 37 Available at goo.gl/pZFXkL.
38 Available at goo.gl/DKXQdB.

28
pation rate in the nation. The Pew Charitable Trs., The Elections Performance Index 2012 (Apr. 2014);39 The Pew Charitable Trs., Wisconsin Elections Performance Index (Apr. 2014).40
Despite overwhelming Republican support just a few years earlier, however, starting in 2011, the Republican-controlled Legislature “waged war” on the GAB. Patricia Simms, Wisconsin get D grade in 2015 State Integrity Investigation, Ctr. for Pub. Integrity (Nov. 9, 2015).41 What changed? By virtue of their election victory in 2010 and their complete control of the Legislature and Governor’s office, Republican legislators knew they would be insulated from political consequences by their ability to control the redistricting plan. See J.S. App. 18a.
In 2015, the Legislature took the ultimate step of seeking to disband the GAB, a move widely believed to be “partisan ‘payback’ for investigations in which the GAB was involved.” See Sen. Kathleen Vinehout, Putting Political Parties Back in Charge of Elections and Ethics? (Oct. 14, 2015).42 One of the six retired judges to serve on the GAB called the action “a great step backwards.” Dave Zweifel, Plain Talk: Next November, Remember Who Butchered Good Government In Wisconsin, Capital Times (Nov. 18, 2015).43 The chair of the GAB, another retired judge,
39 Available at goo.gl/xHchB7.
40 Available at goo.gl/SVW2fb.
41
Available at goo.gl/oaw5Xr.
42 Available at goo.gl/z54LuF.
43 Available at goo.gl/v861tC.

29

testified against dismantling the GAB at an Assem-

bly hearing. Wis. State Leg., Record of Committee

Proceedings (2015).44

The Capital Times

characterized the behavior of legislators as

equivalent to “drunken sailors on shore leave” in

their reckless exercise of raw power. “Only problem

is, it’s our government and our historic safeguards

that are being smashed.” Zweifel, Next November,

Remember, supra. One citizen, a retired Milwaukee

public school teacher, sent open records requests to

each Republican legislator asking for copies of

communications from constituents regarding the

proposed legislation. Though not all such requests

were fulfilled, the responses showed more than 2,500

communications in support of the GAB and only 189

against—i.e., more than 90% in favor of preserving

the GAB. See Dave Zweifel, Plain Talk: We, The

People? No. We, The Irrelevant, Capital Times (Dec.

24, 2015).45

Nevertheless, in early 2016 legislation to dismantle the GAB was enacted, on a “nearly party-line” vote. 2015 Wis. Act 188; see Patrick Marley & Jason Stein, Assembly Approves Splitting GAB into Elections and Ethics Agencies, Milwaukee J. Sentinel (Oct. 21, 2015).46 The GAB ceased to exist on June 30, 2016, and was replaced by a “weak and politically connected commission,” that allows “lawmakers [to] have a bigger role in the agency charged with regulating them, with authority over the majority of the commissions’ appointees and its funding for

44 Available at goo.gl/EGPqYT. 45 Available at goo.gl/QNJwXX. 46 Available at goo.gl/Nz6BDP.

30
investigations.” Katelyn Ferral, As the Government Accountability Board Ends, What’s the Future for Wisconsin Campaign Finance Regulation?, Capital Times (June 20, 2016)47; State Ethics Panel Gets First Big Vote, Wis. State J. (Aug. 28, 2016).48
Wisconsin legislators took this action despite the fact that “62% of those polled . . . said the board should remain an independent and impartial board of judges.” Sen. Lena Taylor, GAB’s Obituary, Milwaukee Courier, July 2, 2016. The former Executive Director of the GAB explained why the GAB was dismantled: “The people in power did not like being held to account.” Scott Bauer, State’s Nonpartisan Election Board Ends; Two Partisan Boards Will Replace the 8-Year-Old Experiment; Elections Oversight New Entity Advised to ‘Follow the Law,’ Wis. State J., June 27, 2016, at A3. And just months after the GAB was replaced (in part) by the Wisconsin Ethics Commission, one of the judges newly appointed to that Commission “resigned in disgust,” stating that the agency was “ill-suited to its mission of ensuring clean government” and that the system “almost guarantees” that investigations of financial and ethical improprieties will not occur. Jason Stein, Wisconsin Ethics Commissioner Resigns in Disgust, Milwaukee J. Sentinel (Dec. 12, 2016).49
47 Available at goo.gl/rNIOzP. 48 Available at goo.gl/E4VpJX. 49 Available at goo.gl/v0cZrp.

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C. Extreme Policies Enacted Since the Redistricting Plan Have Tarnished Wisconsin’s Strong Bipartisan Tradition of Natural Resources Conservation and Environmental Protection.
Historically, Wisconsin has been practically synonymous with environmental conservation. John Muir, the renowned naturalist, spent his formative years in Wisconsin and studied at UW-Madison. The father of American wildlife ecology, Aldo Leopold, settled in Wisconsin in 1924 and published the first textbook on wildlife management in 1933. Gaylord Nelson— the former Wisconsin governor and U.S. senator— founded Earth Day in 1970.
For decades, there has been a bipartisan commitment in Wisconsin to environmental protection and conservation of its abundant natural resources. During the 1970s, Wisconsin politicians and “the majority of the state’s citizens supported the national government’s efforts to reduce air and water pollution.” Conant, supra, at 293. In the 1980s, “the state actively cooperated with the national government in efforts designed to reduce the risks that hazardous wastes posed for human health.” Id. Republicans, including former Governor Thompson, worked closely with Democrats to enact historic legislation, like 1989 Wisconsin Act 31, which created the Lower Wisconsin State Riverway to help protect the natural beauty and ecological health of the 95,893 acres within the Riverway’s boundaries. See Lower Wis. State Riverway Bd., Welcome.50 As recently as 2008, with control of the Legislature split between the
50 Available at goo.gl/PSYfGz (last visited Sept. 5, 2017).

32
parties, legislators almost unanimously passed, after lengthy negotiations and compromise, legislation implementing the historic Great Lakes Compact, a compact between eight States and two Canadian provinces to protect and manage the waters of the Great Lakes basin. See 2007 Wis. Act 227.
Wisconsinites still “expect state (and local) government to manage the state’s natural resources carefully and to protect the environment vigilantly.” Conant, supra, at 4, 17. Over the years, Wisconsin has earned its reputation as a sportsman’s paradise because of the State’s bipartisan efforts to preserve its natural beauty and conserve its wildlife and resources.
Yet this bipartisan tradition is now endangered, largely due to the extreme policies adopted by the Legislature since the 2011 redistricting plan rewired Wisconsin’s politics. Wisconsin legislators have undermined the Wisconsin Department of Natural Resources (“DNR”), loosened rules designed to curb pollution, made it easier to endanger wetlands, and adopted policies that threaten the State’s wildlife. See Steven Verburg, Scott Walker, Legislature Altering Wisconsin’s Way of Protecting Natural Resources, Wis. State J. (Oct. 4, 2015)51 (“Protecting Natural Resources”). The Legislature has done so much to undercut Wisconsin’s protections for natural resources that one retired Republican state senator exclaimed: “‘I think what’s going on is appalling . . . . I’m a pretty pro-business Republican. But a clean environment is essential to business. This is just wholly unacceptable.’” Siri Carpenter, How Scott
51 Available at goo.gl/NxWmHd.

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Walker Dismantled Wisconsin’s Environmental Legacy, Sci. Am. (June 17, 2015)52 (quoting former Senator Dale Schultz). Though Wisconsin faces many conservation and environmental dilemmas because of the post-redistricting policies adopted by the Legislature, three are particularly worrisome: the politicization and weakening of the DNR, the interference with its efforts to protect clean drinking water, and the adoption of legislation that has weakened laws regulating mining.
Perhaps the most obvious change has been the increasing politicization of the DNR, the state agency responsible for protecting and managing Wisconsin’s “fish, wildlife, forests, parks, air and water resources.” Dep’t of Nat. Res., About the DNR.53 While campaigning in 2010, Governor Scott Walker called the DNR “out of control” and an impediment to job growth. See Verburg, Protecting Natural Resources, supra. Then, in 2011, the Legislature passed a law, Act 21, that gave the governor and legislators “much greater control of administrative rules that are written by DNR professionals and scientists.” Id. Act 21 limited the DNR’s ability to take rule-making, enforcement, or administrative actions beyond those “explicitly required or explicitly permitted by statute.” 2011 Wis. Act 21 (codified as amended at Wis. Stat. § 227.10 et seq.). Act 21 also authorized the governor to issue executive orders to ensure that any new rules complied with existing statutes. Id.
52 Available at goo.gl/XmrdWx.
53 Available at goo.gl/wNsdNt (last visited Sept. 5, 2017).

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Under this heightened political control, the DNR’s environmental protection efforts have become lax. In 2013, the DNR restructured its advisory committee, cutting university scientists and adding more representatives from politically influential groups. See Carpenter, supra. Whereas the DNR was once “much more forceful in disagreeing with the legislature and making recommendations to improve the legislation,” it now defers to legislators. Id. (quoting Adrian Wydeven, the former head of the DNR wolf management program under Governor Thompson). DNR scientists are restricted from speaking directly with lawmakers, and DNR employees complain that terms like “climate change” have become red flags in grant proposals. Id.
The Legislature has also slashed financial support for the DNR. Since the 1920s, the State’s “commitment to . . . natural resource management has also been reflected in the [state] budget.” Conant, supra, at 27. But in recent years, the Legislature has dramatically reduced the DNR’s budget. Governor Walker’s 2015–2017 budget proposal called for the removal of one-third “of all research scientist positions and more than half of all environmental educator positions from the DNR.” Carpenter, supra. The budget approved by the Legislature removed 92 DNR employee positions, including 18 senior scientists who had previously “guide[d] the work of agency program managers.” Verburg, Protecting Natural Resources, supra. Legislators also “complained about ‘controversial’ DNR research on wildlife, mining and climate change.” Id. The most recent former Secretary of the DNR, Cathy Stepp—who was a vocal DNR critic when she served as Republican state senator, and stepped down as Secretary in August

35
2017—admitted that the DNR’s staffing cuts were politically motivated:
We’ve seen a pretty sound response from the Legislature during this last budget process on some things that they saw that happened historically in that particular area of the department that they were unhappy about, and they wanted to send a message to us, (which) is, you know, ‘Get your researchers in better line with what their constituents are telling them, the legislators,’ and we’re going to do that.
Id. (quoting Secretary Stepp) (alteration in original).
This legislative interference has greatly diminished the DNR’s effectiveness. The DNR is now less able to perform essential functions, including environmental enforcement. In 2015, the year of the major budget cuts, the fines DNR collected from polluters “plummeted to the lowest level in 30 years.” Cassandra Willyard, After Censoring Stories, Gov. Scott Walker Wants to Kill Off Self-funded Outdoors Magazine, Colum. Journalism Rev. (May 1, 2017).54 The fines imposed on polluters in 2015 decreased a staggering 88% from the year before. Steven Verburg, Fines for Pollution Fell to 30-Year Low in 2015, Wis. State J. (May 19, 2016).55 Though Governor Walker has chalked this up to Wisconsin suddenly having fewer polluters, others—including George Meyer, a former DNR Secretary appointed by Governor Thompson (and an amicus on this brief)—have questioned whether an under-staffed DNR is con-
54 Available at goo.gl/PduRbx.
55 Available at goo.gl/FuCwUc.

36
ducting adequate inspections. Id. As Mr. Meyer put it, “If you don’t look, you won’t find.” Id. Similarly, the Wisconsin State Journal recently reported that under Secretary Stepp, the U.S. Environmental Protection Agency (“EPA”) called the DNR’s effort to control fine-particle air pollution “a failure,” and that the State’s non-partisan Legislative Audit Bureau found that the DNR “failed to enforce its own standards for industrial and municipal water pollution 94 percent of the time.” Steven Verburg, Secretary Cathy Stepp Leaving DNR to Join Donald Trump’s EPA (Aug. 30, 2017).56
The Legislature has also undermined the DNR’s efforts to provide Wisconsinites with clean drinking water. The EPA recently warned the DNR that Wisconsin’s water quality protections are “inadequate or out of date.” Verburg, Protecting Natural Resources, supra. An investigation by the Wisconsin Center for Investigative Journalism found that “[h]undreds of thousands” of Wisconsinites are “at risk of consuming drinking water tainted with substances including lead, nitrate, disease-causing bacteria and viruses, naturally occurring metals and other contaminants.” Ron Seely, Safe, Clean Drinking Water Eludes Many Wisconsinites, Minn. Post (Nov. 18, 2015).57
In 2009, researchers found viruses in municipal water supplies, so state regulators began requiring disinfection. Id. But two years later, the Legislature rescinded that rule, with one Republican state representative calling it “‘an unnecessary and financial
56 Available at goo.gl/jSA9C5.
57 Available at goo.gl/azhQDw.

37
bureaucratic burden.’” Id. (quoting Rep. Erik Severson). Researchers later linked the viruses in fourteen municipal water systems to “acute gastrointestinal illness.” Id. But the fallout could have been much worse—according to the DNR, as of 2015, more than 73,000 Wisconsinites relied on water from public systems that did not disinfect. Id.
The redistricting process also paved the way for changes in mining laws and protections for Wisconsin’s wetlands and waterways. In 1998, Governor Thompson signed a bipartisan mining moratorium law that required companies to prove that a sulfide ore mine could operate without polluting groundwater or surface waters. 1997 Wis. Act. 171. Yet in 2011, Republican policymakers began pushing for construction of an iron mine in an economically depressed area of northwestern Wisconsin, even though it was precluded under state law. Steven Verburg, Gogebic Taconite Says Wisconsin Mine Isn’t Feasible; Cites Wetlands, EPA, Wis. State J. (Feb. 28, 2015) (“Gogebic Taconite”)58; see also Bill Leuders, Iron Mine Is Halted, But Battle Scars Remain, Wis. Watch (Mar. 17, 2015).59 The initial effort to enact legislation to authorize the mine failed. See Assemb. Bill 426, 2011-2012 Leg. (Wis. 2012).60 But despite warnings from scientists, the mine’s supporters kept pursuing legislation. See Gogebic Taconite. And the company pursuing the mine, Gogebic Taconite, contributed $700,000 to the Wisconsin Club for Growth, a conservative group supporting Republican
58 Available at goo.gl/MGPKAr.
59 Available at goo.gl/Gz13Ms.
60 Available at goo.gl/T6ZLjB.

38
candidates, to improve its prospects. See Leuders, supra; see also Theodoric Meyer, In Wisconsin, Dark Money Got a Mining Company What It Wanted, Pro Publica (Oct. 14, 2014).61
The Legislature ultimately passed a mining deregulation law, which Gogebic Taconite helped to write, in 2013. See Gogebic Taconite. The law, 2013 Wisconsin Act 1, was enacted even though polling suggested that over 60% of Wisconsin voters opposed it. See Lee Bergquist, New Poll Shows Majority Oppose Mining Bill, Milwaukee J. Sentinel (Feb. 25, 2013).62 Act 1 modified Wisconsin’s mining regulations so that they only applied to the mining of nonferrous metals (excluding the proposed iron mine); and prohibited DNR from requiring any wetlands mitigation measures beyond those required under federal law. 2013 Wis. Act 1 (codified as amended in scattered sections of Wis. Stat., including §§ 20, 293, 295). Act 1 also allowed mining companies to dump mining waste in wetlands, streams, and lakes; doubled the area around mines where companies could permissibly pollute; “and strip[ped] citizens of the right to sue mining companies for illegal environmental damage.” Carpenter, supra. The Legislature passed Act 1 despite the threat it posed to lakes, streams, wetlands and groundwater only 30 miles from Lake Superior. See Gogebic Taconite.
In the end, Gogebic Taconite gave up on its Wisconsin project, citing federal wetlands regulations. See Leuders, supra. Thus, the Legislature gutted Wisconsin’s mining regulations, and ended up with
61 Available at goo.gl/jN6y9j.
62 Available at goo.gl/1R47aa.

39

nothing to show for it. The Legislature’s mining deregulation is yet another disheartening example of an emboldened political majority—entrenched in power and protected from electoral consequences because of partisan gerrymandering—taking action contrary to Wisconsin’s bipartisan tradition of environmental protection and conservation.
CONCLUSION
For the foregoing reasons, the judgment of the District Court should be affirmed.

Respectfully submitted,

CARY E. ADICKMAN MADELINE H. GITOMER HUNTER J. KENDRICK HOGAN LOVELLS US LLP 555 Thirteenth St., NW Washington, DC 20004 (202) 637-5600

IRA M. FEINBERG Counsel of Record
HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 (212) 918-3000 ira.feinberg@hoganlovells.com
SUSAN M. CRAWFORD PINES BACH LLP 122 West Washington
Avenue, Suite 900 Madison, WI 53703

Counsel for Amici Curiae

SEPTEMBER 2017

 
 NO. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, et al., v.

Appellants,

WILLIAM WHITFORD, et al., Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF FOR AMICUS CURIAE CENTER FOR MEDIA AND DEMOCRACY
IN SUPPORT OF APPELLEES

THEODORE R. BOEHM

JOSEPH H. YEAGER, JR.

HOOVER HULL TURNER

Counsel of Record

111 Monument Circle

HARMONY A. MAPPES

Suite 4400

DULANY LUCETTA POPE

Indianapolis, IN 46204 (317) 822-4400 tboehm@hooverhullturner.com

MATTHEW B. HARRIS JEFFREY P. JUSTMAN JULIANA YANEZ

FAEGRE BAKER DANIELS LLP

300 North Meridian Street

Suite 2700

Indianapolis, IN 46204

(317) 237-0300

jay.yeager@faegrebd.com

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii
STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. Wisconsin’s Pre-Act 43 Redistricting Problems Sprang From Divided Government, not Litigation, and the 2011 Process of Enacting Act 43 Was Anything but a Triumph of the Policy-Driven Process the Legislature Describes . . . . . . . . . . . . . . . . . . . 7
II. The Record Strongly Supports the District Court’s Finding—and Act 43’s Guiding Principle—that Past Party Preferences Reliably Predict the Future Statewide Behavior of Wisconsin’s Voters . . . . . . . . . . 14
A. Actions Speak Louder than Words: the Legislature Has Changed its Tune Since the 2011 Redistricting Process . . . . . . . . 15
B. The District Court Relied on Extensive Data Proving that Voter Party Preference Reliably Predicts Assembly Vote in the Vast Majority of Districts . . . . . . . . . . . . 17
C. The Legislature’s Hand-Picked Examples Prove Nothing . . . . . . . . . . . . . . . . . . . . . 21
III. Voters Have Representational Interests and Rights that Extend Far Beyond Constituent Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ii
IV. The Authors of Act 43 Did not Assume Away Party Volatility)They Planned for It . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iii
TABLE OF AUTHORITIES
CASES
Ariz. Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) . . . . . . . . . 10, 12
Arrington v. Elections Bd., 173 F.Supp.2d 856 (E.D. Wis. 2001) . . . . . . . . . . 7
Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . 10
Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F.Supp.2d 840 (E.D. Wis. 2012) . . . . . . 10, 15
Baumgart v. Wendelberger, No. 01-C-0121, 02-C-0366, 2002 WL 34127471 (E.D. Wis. May 30, 2002) (per curiam), amended by 2002 WL 34127473 (E.D. Wis. July 11, 2002) . . . . . . . . . . . . . . . . . . . 7
Davis v. Bandemer, 478 U.S. 109 (1986) . . . . . . . . . . . . . . . . . . . 11, 27
Gaffney v. Cummings, 412 U.S. 735 (1973) . . . . . . . . . . . . . . . . . . . . . . 11
Peterson v. Borst, 786 N.E.2d 668 (Ind. 2003) . . . . . . . . . . . . . . . . . 8
Prosser v. Elections Bd., 793 F.Supp. 859 (W.D. Wis. 1992) . . . . . . . . . . . 7
Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . . 6, 10
Shaw v. Reno, 509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . 25, 26

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Vieth v. Jubelirer, 541 U.S. 267 (2004) . . . . . . . . . . . . . . . . 11, 27, 29
Wis. State AFL-CIO v. Elections Bd., 543 F.Supp. 630 (E.D. Wis. 1982) . . . . . . . . . . . . 7
STATUTES
Wis. Stat. §§ 19.31-19.39 . . . . . . . . . . . . . . . . . . . . . . 9
Wis. Stat. §§ 19.81-19.98 . . . . . . . . . . . . . . . . . . . . . . 9
OTHER AUTHORITIES
Jowei Chen & Jonathon Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
A. Scott Chinn, The Role of Indiana’s State and Federal Courts in Legislative Redistricting, 37 Ind. L. Rev. 643 (2004) . . . . . . . . . . . . . . . . . . . . . 8
Tim Cullen & Dale Schultz, We led the Wisconsin Senate. Now we’re fighting gerrymandering in our state., Wash. Post, June 20, 2017 . . . . . . . . 25
Jeffmd, Daily Kos Elections’ statewide election results by congressional and legislative districts, Daily Kos, July 9, 2013, https://www.dailykos. com/stories/2013/7/9/1220127/-Daily-Kos-Elec tions-2012-election-results-by-congressionaland-legislative-districts . . . . . . . . . . . . . . . . . . . 31
Daniel R. Roy, How Political Turf Battle Morphed Into Legal Contest Before State's Highest Court, 46 Res Gestae, June 2003 . . . . . . . . . . . . . . . . . . 8

v
Boris Shor & Nolan McCarty, Ideological Mapping of American Legislatures,105 Am. Pol. Sci. Rev. 530 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Reference Manual on Scientific Evidence: Third (Statistics) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Wisconsin Election Results, Wisconsin Elections Commission, http://elections.wi.gov/electionsvoting/results (last visited Sept. 1, 2017) . . . . . . . . . . . 13, 19, 31
Wisconsin State Legislature Open GIS Data, Legislative Technology Services Bureau, http://data-ltsb.opendata.arcgis.com/dat asets/2012-2020-wi-election-data-with-2011wards/data?selectedAttribute=PREREP12 (last visited Sept. 1, 2017) . . . . . . . . . . . . . . . . . . . . . 13

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STATEMENT OF INTEREST1
The Center for Media and Democracy (the “Center”) is a nonprofit, nonpartisan organization based in Madison, Wisconsin. Founded in 1993, it has focused on investigating and exposing abuses of power that corrupt the proper workings of democratic government. Its particular interest in this case is to expose incorrect claims as to the legislative history of gerrymandering in Wisconsin and distorted reports of Wisconsin election results and to supply insight into the current state of Wisconsin politics. The Center offers this brief to respond specifically to points in Sections I.A and II.B, C and D in the Brief for the Wisconsin State Senate and Wisconsin State Assembly (the “Legislature”) that are within the Center’s experience. The Center also wishes to point out the damage a gerrymander inflicts on others in addition to the targeted minority party, in this case Wisconsin Democrats. The credibility of the Center’s work is established by its more than two decade history of citations in the New York Times, Washington Post, the Los Angeles Times, POLITICO, the Guardian, the New Yorker, Bloomberg, WIRED, Vice and The Atlantic as well as on CNN, MSNBC, NBC, CBS, PBS and NPR.
1 Counsel for all parties have consented to this filing. No counsel for any party authored this brief in whole or in part, and no entity or person, aside from Amicus Curiae, its members and counsel have made any monetary contribution towards the preparation or submission of this brief.

2
SUMMARY OF ARGUMENT
The Legislature2 describes a fair, deliberative, policy-driven legislative process that bears no relation to the actual process by which Act 43 became the law of Wisconsin. The short answer to many of the Legislature’s claims is that the only policy driving Act 43 was preservation of one-party domination of the Wisconsin Assembly and the incumbency of the legislators who voted for it.3 That was the evidence, and the Appellants have not contested the district court’s finding of intent.
The Legislature argues that the power of incumbency, differences among individual candidates, and other factors drive election results. But actions speak louder than words. In drafting Act 43, the Legislature wholly ignored the factors it now applauds. Instead it used reliable statistical analyses of historical data to project the durability of the Republican legislative majority under the Act 43 map against various possible shifts in relative party strength. Indeed, the evidence shows that party affiliation explains well over 95% of a voter’s decision on Assembly candidates. The Legislature now asks the Court to ignore that core fact: in designing its gerrymander, the Legislature embraced the very principles and analysis it now argues against.
The legislators who supported Act 43 preserved their own seats and positions in the legislative
2 The Wisconsin Legislature’s amicus brief is cited as “Br.”
3 The plaintiffs challenged only the Assembly map, but because the Senate districts are nested within the Assembly districts, this decision necessarily impacts the Senate map as well.

3
hierarchy and uniquely benefited from it. This gerrymander is thus the product of a strain of conflict of interest that infects few other forms of legislation. This gerrymander is immune from the checks and balances that operate on normal legislation. In Wisconsin, as in about half the states in the Union, there is no voter initiative to correct this abuse of power by enacting a redistricting procedure without the Assembly’s approval. Without court intervention, this gerrymander will survive despite its partisan origin and anti-democratic impact.
Prior court intervention over the past three decades in Wisconsin arose from the Legislature and the Executive’s inability to agree on maps, not from any inherent difficulty in drawing districts. The remaining complexities in districting that the Legislature cites arise from compliance with the Voting Rights Act and the recognized constitutional prohibition on racial gerrymandering. These will govern any redistricting regardless of the outcome of this case. The Appellees (“Wisconsin Voters”) proved and the Appellants have not contested that computers are fully capable of drawing maps without political data that still respect traditional districting principles.
Modern technology offers a uniquely reliable methodology for building a fortress around a transient majority’s control through intentional maximization of the number of districts deemed safe for one party. In Wisconsin, as in most states, a map not dominated by partisan animus will still produce some districts that heavily favor one of the two major parties. But in Act 43 the State intentionally maximized the number of safe districts, cutting meaningfully competitive

4
districts in half in the process. The Legislature does not address the basic data that show the durability of a partisan majority riding the back of a well-drawn gerrymander. And Wisconsin as a result has one of the most partisan legislatures in the nation. Nor does the Legislature offer an answer to the most obvious question: If the authors of Act 43 did not believe in analyzing past election results to predict future results and maximize the likelihood of an impenetrable Republican majority, then why did they spend nearly half a million dollars of public money on sophisticated computer analysis by outside consultants to do just that?
In conferring this personal benefit on themselves, the legislators who enacted Act 43 imposed a high cost on the millions who must live under the Act 43 maps. A gerrymander intentionally invades the representative rights of millions of citizens. A legislature with few competitive races imposes multiple barriers to the proper functioning of democratic government. Candidates in both parties are obliged to appeal not to the electorate as a whole, but only to a majority of their party. The result is a legislative body unrepresentative of the voters as a whole and resistant to compromise. And the elimination of meaningful races in the general election is damaging to the body politic, producing large numbers of unopposed candidates, fewer competitive races, increased voter apathy, lower turnout, and suspicion of government.
There is of course no Constitutional right to proportional representation, and nothing in this case would change that. But individuals and political parties have a constitutional right not to be targeted by

5
the state for partisan reasons. That is what happened to the Wisconsin Democratic party and to voters in districts purposely manipulated to pack minority party voters into supermajority districts or increase majority party voters in other districts to levels deemed safe for the majority.
The handful of races the Legislature offers as examples of competitiveness are outliers among the 297 races in Wisconsin’s 99 Assembly districts in the three election years since 2012. In fact only about 20)not the 75 the Legislature says)of those 297 races were actually competitive. To be sure, an occasional candidate will succeed in a competitive or even slightly adverse district. But the overwhelming and uncontested data of record show these anomalies are few and far between and extremely unlikely to overcome the intended statewide partisan tilt of a sophisticated computer-driven gerrymander such as Act 43.
Wisconsin has seen litigation break out after each census since 1980, but only because the government was divided and could not agree on any map, forcing courts to act. Establishment of an objective standard for impermissible manipulation, rebuttable by a state’s ability to justify its action as required by legitimate districting considerations or otherwise, should over time reduce the need for court intervention. And, of course, as the district court noted, a state could eliminate any presumption of impermissible motive simply by employing a neutral process.
In addition to impairing the proper function of the legislative branch, a gerrymander intentionally invades the representative rights of millions of citizens. A

6
gerrymander is intended to, and does, place the election of the legislator for each district in the hands of the voters in the primary of the party with a majority in that district. It thus purposefully maximizes the number of voters who have no meaningful voice in the selection of their legislators and facilitates candidates from the far right and left. Not only Democrats are deprived of a vote in a majority of districts. In many states voting in a primary requires a public declaration of affiliation with that party. Independents and third party supporters who are unwilling to do that have no vote in the only contest that matters in the selection of their legislator. They suffer the ultimate impairment of representational rights. Thus, though Democrats are the target of the Wisconsin gerrymander, Act 43 inflicts collateral damage on many voters of both parties and of no party.
ARGUMENT
The Wisconsin Legislature is systematically depriving Wisconsin’s voters of the “fair and effective representation for all citizens [which] is concededly the basic aim of legislative apportionment.” Reynolds v. Sims, 377 U.S. 533, 565-66 (1964). It has been the law of the land for over 50 years that the Constitution “guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights. . . .” Id. at 566. The Wisconsin Voters proved below that the Legislature is doing precisely that and worse: discriminating based on voters’ own political views and associations. This

7
tramples not only the Fourteenth Amendment but the First Amendment as well.
The Center submits this brief because Wisconsin’s voters need this Court’s help. Given the inherent conflicts of interest and human nature, and given the structure of Wisconsin government, this problem will not fix itself.
I. Wisconsin’s Pre-Act 43 Redistricting Problems Sprang From Divided Government, not Litigation, and the 2011 Process of Enacting Act 43 Was Anything but a Triumph of the Policy-Driven Process the Legislature Describes.
The Legislature cites repeated litigation over Wisconsin legislative maps since 1972 to warn that partisan gerrymandering claims would invite additional federal “intrusions into the legislative process.” Br. 7-8.4 But in the three decades leading up to Act 43, federal courts were not drawn into the
4 In the attempt following the 1980 census, the Republican governor vetoed the Democrat-controlled legislature’s map, leading to court intervention. See Wis. State AFL–CIO v. Elections Bd., 543 F.Supp. 630, 631 (E.D. Wis. 1982). The same thing happened following the 1990 census. Prosser v. Elections Bd., 793 F.Supp. 859, 861-62 (W.D. Wis.1992) (“Both houses of the Wisconsin legislature have a Democratic majority, but not a large enough one to override vetoes by the state’s Republican governor.”). And following the 2000 census, the divided state legislature (Democrat controlled Senate and Republican controlled Assembly) failed to produce a map, again resulting in a court-drawn map. See Arrington v. Elections Bd., 173 F.Supp.2d 856, 858-59 (E.D. Wis. 2001); Baumgart v. Wendelberger, No. 01-C-0121, 02-C-0366, 2002 WL 34127471, at *1 (E.D. Wis. May 30, 2002) (per curiam), amended by 2002 WL 34127473 (E.D. Wis. July 11, 2002).

8
mapmaking process by any tide of plaintiff-driven litigation. Instead, divided state government failed to agree on any map that met population standards required by the most recent census. See id. Court intervention was required then; and intervention will be required in the future if the Legislature and Governor cannot produce a proper map. None of this implicates partisan gerrymandering claims.
The Legislature also complains that limiting partisan gerrymanders will impose great burdens on the Legislature. Yet with relative ease, a single political scientist, expert witness Kenneth Mayer, Professor of Political Science at the University of Wisconsin, was able to draw a map adhering better to traditional redistricting criteria than the Legislature’s map and that did not discriminate against voters based on political preference. Courts find the job similarly manageable. See, e.g., Peterson v. Borst, 786 N.E.2d 668, 677-78 (Ind. 2003) (using software supplied by parties without political data, Indiana Supreme Court staff drew city-county council districts with minimal population variation, regular shape, and respecting internal lines within a few hours, resulting in a map widely viewed as fair); A. Scott Chinn, The Role of Indiana’s State and Federal Courts in Legislative Redistricting, 1962-2003, 37 Ind. L. Rev. 643, 657-59 (2004); Daniel R. Roy, How Political Turf Battle Morphed Into Legal Contest Before State’s Highest Court, 46 Res Gestae, June 2003 at 20, 22. Indeed, analysts can now create through computer algorithms hundreds or even thousands of maps that comply with traditional criteria. See, e.g., Jowei Chen & Jonathon Rodden, Cutting Through the Thicket: Redistricting

9
Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331, 338 (2015).
Neither do partisan gerrymandering claims threaten the Legislature’s discretion to make policy. The Wisconsin process that produced Act 43 in particular deserves little deference to the policymaking prerogatives normally accorded the legislative branch. Remarkably, given the record before this Court, the Legislature portrays that process as a breakthrough of good government. Br. 8. The Legislature describes “months of full-time work by legislative aides meeting with caucus members and drafting maps that complied with traditional criteria.” Id.
But the legislative process that produced Act 43 was not conducted in the usual sunshine of public introduction of a bill, hearings, and amendments. The press, public, and even most legislators first saw Act 43 on the eve of its passage. Individual Republicans, but not Democrats, were permitted to view their new districts at a secret location outside the Capitol building. Even those Republicans were not given access to the map as a whole and were sworn to secrecy contrary at least to the spirit of Wisconsin’s strong open meetings and records laws. Jurisdictional Statement Appendix5 12a; Joint Appendix6 355; Wis. Stat. §§ 19.31-19.39; 19.81-19.98. Due to the inherent complexity of any written districting bill, which identifies each district as a list of dozens of wards, it was impossible for anyone newly introduced to Act 43
5 The Jurisdictional Statement Appendix is cited as “JSA.”
6 The Joint Appendix is cited as “JA.”

10
to have a meaningful clue as to the boundaries of each of these new districts before it was enacted. The entire public process from introduction to approval by both houses of the Legislature consumed only ten calendar days. JSA 29a. See also Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F.Supp.2d 840, 845-46 (E.D. Wis. 2012) (describing secretive and hurried process; “every effort was made to keep this work out of the public eye and, most particularly, out of the eye of the Democrats”).
In short, the Legislature’s claim that Act 43 is the product of public-spirited deliberation and wise policy choices is preposterous.
The Legislature’s claim that it exercised “constitutionally conferred policy-making discretion” assumes, wrongly, that Act 43 complies with the Constitution of the United States. Br. 6. Gerrymandering is qualitatively different from other legislation, and the key reasons for deference to the policy calls of the legislative branch carry little weight when it comes to redistricting, the primary motive of which is partisan advantage.
First, the “policy” that drove Act 43 was indeed that impermissible goal: partisan advantage. A majority of the Court has already declared partisan gerrymanders “incompatible with democratic principles.” Ariz. Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (internal quotations omitted). This Court held decades ago, and has never wavered from the rule, that state discretion in districting is constrained by the constitutional rights of the voters. Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964). As the district court noted, the

11
notion that some “partisan considerations” are lawful in districting originates with Gaffney v. Cummings, 412 U.S. 735 (1973), but Gaffney held that partisan considerations may be used to make districts more fair and representative, not for the “invidious” purpose of minimizing the voting strength of political groups. Id. at 752-54; JSA 66a-68a.
The Gaffney line is entirely consistent with this Court’s long-held consensus that partisan gerrymandering presents, at the very least, a significant constitutional problem. In Vieth v. Jubelirer, five Members of this Court explicitly recognized that extreme partisan gerrymandering violates the Constitution. See 541 U.S. 267, 307, 31216 (2004) (Kennedy, J., concurring in judgment); id. at 317–318 (Stevens, J., dissenting); id. at 343, 347–52 (Souter, J., joined by Ginsburg, J., dissenting); id. at 356–57, 366–67 (Breyer, J., dissenting). The other four Justices in Vieth stated that they did not disagree with that conclusion. See id. at 292 (plurality opinion) (a dissent addresses “the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment.”).7
7 Six Justices in Davis v. Bandemer, 478 U.S. 109 (1986), had held the issue justiciable, but four of the six found proof of the loss of a majority in the legislature insufficient to establish a lasting impairment of voting rights. See id. at 118-27, 134-37. In Vieth five Justices affirmed that the issue was justiciable, but Justice Kennedy found no reliable measure of the impairment of voters’ First or Fourteenth Amendment rights. See 541 U.S. at 313-14. Plaintiffs here offer proof of durability and a measure of an impairment that shifts the burden of explanation to the State to show that the impairment was not the product of partisan gerrymander.

12
Second, Act 43 is the product of a conflict of interest different in kind from conflicts that affect any other form of legislation. Each of the legislators who foists a gerrymander upon the citizens of the state is among the small group of individuals whose careers, positions in the legislative hierarchy, and fundraising capacity are cemented by their party’s majority status. Normal checks and balances and deliberative policy processes do not operate in this environment. See Ariz. Indep. Redistricting Comm’n, 135 S. Ct. at 2672 (describing the inherent conflict of interest “when legislators draw district lines that they ultimately have to run in” and the Founders’ purpose behind the Elections Clause “to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate”) (internal quotations omitted).
Here, legislators used State power in their own selfinterest to disempower political opponents for a decade or more. JSA 145a-146a. In the process, the Legislature has maximized the number of safe majority districts, rendering the election of legislators in the general election a foregone conclusion in most of Wisconsin, depriving independents of any meaningful vote in most districts, and contributing to an unrepresentative legislature. Throughout its defense of gerrymandering the Legislature ignores entirely that these consequences flow from legislation intentionally designed for impermissible partisan reasons.
Finally, although the Legislature tells the Court that partisan voting swings and dozens of competitive races protected Wisconsin’s voters from the gerrymander, the facts show just the opposite. The

13
number of elections in competitive districts under Act 43 does not approach the 75 claimed by the Legislature. Br. 30. The Legislature does not disclose its standard for a competitive election.
In his 2011 work for the Legislature, Professor Keith Gaddie defined a district as “swing” if neither major party had more than 52% (an advantage of up to 4%) of the total major party vote. SA 325. Act 43 reduced the number of swing districts by almost half, from 19 to 10. Id. Even treating margins up to a 6% advantage as competitive, half again Professor Gaddie’s cutoff, the number of competitive elections was 11 and 15 in 2008 and 2010, respectively, but then dropped under Act 43 in 2012 to 12, then five, then three in 2016. SA 325, Exs. 535 to 541; Wisconsin Election Results.8 That adds up to 20, not 75, elections in competitive districts out of 297 in the last three cycles—less than 7% by a measure half again as generous as that applied by the Legislature’s own consultant.
The Legislature also overstates Republican performance in close districts by choosing a skewed group of “competitive” districts. Though the Brief presumes that the 29 Act 43 districts at 55%-45% or closer were competitive, it ignores that 14 of those 29
8 Citations herein to Wisconsin Elections Results reflect analyses of official election data available at Wisconsin Elections Commission, http://elections.wi.gov/elections-voting/results (last visited Sept. 1, 2017). Election data is also available in downloadable format at Wisconsin State Legislature Open GIS Data, Legislative Technology Services Bureau, http://dataltsb.opendata.arcgis.com/datasets/2012-2020-wi-election-data-with2011-wards/data?selectedAttribute=PREREP12 (last visited Sept. 1, 2017).

14
districts actually leaned Republican (i.e. were over 52% Republican but did not reach the “safe” level of 55%). SA 325. This is more than three times the four districts that leaned Democratic. Compare Br. 29-31 with SA 325. Thus, the Legislature’s argument proceeds not from a group of true swing districts but from a larger group strongly tilted to favor the Republican party.
II. The Record Strongly Supports the District Court’s Finding—and Act 43’s Guiding Principle—that Past Party Preferences Reliably Predict the Future Statewide Behavior of Wisconsin’s Voters.
The Legislature does not deny that it deliberately gerrymandered Wisconsin’s legislative districts in 2011 in a manner carefully calculated to give Republicans durable and sizable majorities for a decade. Nor does the Legislature contest the proof and the district court’s finding that the Act 43 maps were not required by traditional redistricting criteria. Instead, the Legislature contends that the Wisconsin Voters’ claims are based on “factual assumptions that are inconsistent with how representative democracy works. . . .” Br. 17.
The Wisconsin Voters’ claims and the district court’s findings are based not on “assumptions” but on hard facts supported by voluminous evidence. Specifically, the district court’s opinion, unlike the Legislature’s argument, is based on evidence and careful analysis of years of data from 99 Assembly districts, not cherrypicked examples from a handful of elections in the few competitive districts that survived Act 43. And, of course, the Legislature’s argument to this Court is contradicted by the Legislature’s own research,

15
analysis and conduct in successfully gerrymandering the State of Wisconsin.
A. Actions Speak Louder than Words: the Legislature Has Changed its Tune Since the 2011 Redistricting Process.
The Legislature’s own conduct in 2011, proven in Baldus, 849 F.Supp.2d at 845-46, and again in this case, directly contradicts what it now tells this Court.
The district court, in a finding not contested here, said:
In sum, from the outset of the redistricting process, the drafters sought to understand the partisan effects of the maps they were drawing. They designed a measure of partisanship and confirmed the accuracy of this measure with Professor Gaddie. They used this measure to evaluate regional and statewide maps that they drew. They labeled their maps by reference to their partisanship scores, they evaluated partisan outcomes of the maps, and they compared the partisanship scores and partisan outcomes of the various maps. When they completed a statewide map, they submitted it to Professor Gaddie to assess the fortitude of the partisan design in the wake of various electoral outcomes.
The map that emerged from this process reduced markedly the possibility that the Democrats could regain control of the Assembly even with a majority of the statewide vote. The map that would become Act 43 had a pickup of 10

16
Assembly seats compared to the Current Map. As well, if their statewide vote fell below 48%, the design of Act 43 ensured that the Republicans would maintain a comfortable majority.
JSA 138a-139a.
Were a party’s likely statewide success not largely predictable based on the party’s showing in prior elections, the Legislature would not have spent $431,000 of state money and weeks of effort analyzing past elections in various combinations of wards to test the durability of ever more partisan majorities against possible future swings in the relative public support for the two major parties. JA 186. The Legislature claims various other factors affect districting choices, but the record reveals no evidence that in drawing its maps the Legislature considered any nonpartisan policy or the record or character of any individual candidate. Br. 20. Indeed, the State here admits the Legislature’s vote projections in 2011 “took no account of incumbency, candidate strength, or other Assembly-district-specific factors.” Appellants’ Brief 15.
In 2011 the Legislature hired consulting expert Professor Keith Gaddie9 to evaluate the future vote breakdown that could be expected under a series of draft redistricting plans. SA 322; JSA 12a-13a. Professor Gaddie calculated a “partisan score” based on regression analysis to measure the party preference of voters in existing and proposed districts. Id. He then confirmed that his regression analysis tracked closely
9 The district court concluded: “We find [Gaddie’s] testimony credible.” JSA 127a, n.181.

17
with the Republican staff’s “composite score” of partisanship and told his clients that their composite score was “an almost perfect proxy for open seat vote, the best proxy you’ll come up with.” JSA 17a-18a, 127a, Ex. 175 at 1. Professor Gaddie used methods very similar to Professor Mayer’s to gauge partisanship, and these experts for both sides agreed that partisanship would in turn predict legislative outcomes. JA 164-65; JSA 14a, 47a-48a, 54a, 127a128a, 131a. In fact, Professor Gaddie also noted to his clients the “top-to-bottom party basis of the state politics.” SA 322. Moreover, his projections regarding the Republican advantages under the enacted plan were borne out)in a good year for Republicans, the Republicans did even a little better than Professors Gaddie, and Mayer, predicted. JSA 148a, 153a, 158a (“. . . we have the actual election results to confirm the reliability of Professor Gaddie’s model . . . .”).
B. The District Court Relied on Extensive Data Proving that Voter Party Preference Reliably Predicts Assembly Vote in the Vast Majority of Districts.
The Legislature claims voters “choose[] candidates based on their records and positions, not just their political parties.” Br. 20. But as the district court found and the data demonstrate, voters’ choices are overwhelmingly influenced by party rather than individual candidate characteristics. Creating a robust majority of safe districts produces a very high probability of preserving one-party control throughout the decade. The district court never suggested every district would inevitably follow the party preference its history suggested. But the underlying proven fact is

18
that “safe” or “strongly leaning” districts rarely fall outside the pattern.
The Wisconsin Voters’ expert Kenneth Mayer testified at length and virtually without rebuttal on these points. JSA 13a-14a, 147a-152a. Professor Mayer’s testimony and the district court’s findings considered statewide data—not a handful of selected races—to demonstrate the high correlation between party preference in presidential vote and Assembly races. His regression analysis considered a variety of independent factors that might influence elections and proved presidential vote accounted for 93% to 94% of the variation in Assembly vote. SA 47. Professors Gaddie’s and Mayer’s projections are also closely correlated, reinforcing their reliability as predictors of Assembly vote. Professor Mayer actually compared his estimate of the partisanship of each district against Professor Gaddie’s own calculations. “The r-squared for this regression is 0.96, indicating that the two measures are almost perfectly related, and are both capturing the same underlying partisanship.” SA 5556.
Professor Mayer noted that the presidential vote share “correlates very strongly with other more complex measures of partisan strength.” SA 39. He showed graphically how closely Assembly vote tracks presidential vote in Wisconsin:

19
Further voting data from 2014 and 2016 shows the same correlation.10
10 Wisconsin Election Results, supra. Graphs generated by Microsoft Excel 2010.

20
The ward-by-ward vote totals from the elections under Act 43 show the high correlation between votes for Republican candidates for governor and president and votes for Republican Wisconsin State Assembly candidates. The best-fit line for these data points, one for each ward, shows a one-to-one ratio. They demonstrate how the vote at the top of the ticket matches closely the vote in each ward for the party’s legislative candidates. In each of the three elections, in numerical terms, the correlation exceeds 0.987.11 Because the real world is rarely perfect, however, the relationship has just enough play to give the Legislature the few outliers it discusses in its Brief.
In short, the district court’s finding of a high correlation between a district’s party preference, commonly measured by presidential vote, and its vote
11 “Multiple R,” Microsoft Excel 2010.

21
for state legislators is not clearly erroneous. It is correct and is confirmed by the experts.
C. The Legislature’s Hand-Picked Examples Prove Nothing.
Rather than address this extensive data and expert testimony based on all races, the Legislature now offers the Court anecdotes from five of the 792 Assembly races held between 2002 and 2016. Anecdotes cannot rebut the strong statistical correlation detailed in the record. See, e.g., Reference Manual on Scientific Evidence: Third (Statistics), 217-18 (citing shortcomings of anecdotes in establishing reliable correlation between an alleged cause (here, individual factors other than party affiliation) and effect (here, statewide vote for a party)). But, these particular anecdotes suffer from additional flaws.
(1) The Legislature first points to four of the 297 Assembly races in 2008, 2010 and 2012, in which Republican candidates outperformed the national ticket. Br. 20. These are not random selections. Under Act 43 the Legislature’s composite score for District 96 narrowed from 53.6% to a 46.4% Democratic advantage in 2012, and District 49 favored Democrats by 50.41% to 49.59%, making it one of the few truly competitive districts after Act 43. SA 325. Moreover, the Legislature itself identifies a major reason these two districts did not follow form: the two Republicans who won races in Democratic districts had demonstrated a strong independent streak and opposed Governor Walker on the 2011 Act 10 that

22
sparked mass protests and launched a new era of partisanship in Wisconsin. Br. 20.
(2) The Legislature’s next set of districts “that have changed hands within the same districting cycle,”12 id., show in almost every case the strong correlation between direction of vote change in state Assembly races and top-ofticket races. Br. 20-22. Democrat Danou won in 2014 but was unseated by a Republican in 2016—a strong Republican year. Br. 21. Similarly, Republican Rivard lost to a Democrat in 2012, a strong Democratic year—but then Republican Quinn recovered the seat in 2014 (a Republican year statewide and nationally) and did better in 2016 along with the surge in Republican support. Id. And Representative Vruwink, a Democrat, won in the 2012 presidential election year but then lost in 2014 to a Republican, whose margin then predictably increased in 2016 when President Trump won Wisconsin. Id. None of these districts was packed with Democrats: they ranged from 44.3% to 52.18% Republican post-Act 43. SA 325.
(3) The Legislature next looks to the 2002 to 2010 districting cycle to find two districts in which party preference shifted. Br. 21. These elections were conducted under court-drawn maps that included at least twice as many competitive districts as Act 43. SA 325. The races the Legislature cites were in districts that
12 District 70, District 75 and District 92.

23
would be expected to shift with the relative political fortunes of the two major parties. Specifically, District 28 swung from Republican to Democrat in 2006 and back to Republican in 2010. Br. 21. District 68 swung from Democrat to Republican in 2004, back to Democrat in 2008 and back to Republican in 2010. Id. These changes reflected national trends as one would expect in what the Legislature refers to as “traditional ‘swing’ districts.” Id. But, in 2011, Act 43 did away with many competitive districts, and minimized this healthy effect that the Legislature purports to value so highly. See pp. 12–14 above.
(4) Last, the Legislature offers the 2010 example of an “embattled” Assembly speaker who lost his seat to scandal in 2010. Br. 21. On this the Legislature and the Center can agree ) a high-profile scandal can affect any race. But the Legislature has not pointed to a single such scandal that flipped a district under Act 43. Even had it done so, it would have proven nothing. The statewide results were the predictable, and predicted, result of the Legislature’s calculated gerrymander. Partisan gerrymanders work statewide, not district by district.

24
III. Voters Have Representational Interests and Rights that Extend Far Beyond Constituent Services.
In Section II.C, the Legislature seems to claim that those in the minority party suffer no harm from their gerrymander because the minority party voters are “[n]ot [d]eprived of [r]epresentation or [a]ccess to the [p]olitical [p]rocess.” Br. 23. But, this truism—that all voters are represented by the representative from their district regardless of how they voted—ignores the realworld relationship between elected officials and their constituents.
To be sure, each person residing within a district, whether Republican, Democrat, Independent, or noneof-the-above, has a person in the state legislature designated as his or her representative. Even voters who did not support a legislator may be able to get help with a pass to tour the White House or funding to repair a local bridge or extend a bike trail. The Legislature’s point is that the “name of the majority party has no bearing on a great many of the services that legislators provide their constituents on a day-today basis.” Br. 25. But, their representatives do not represent or speak on behalf of the minority party voters on the issues that matter most. As a practical matter, an elected official in a gerrymandered safe district can freely ignore the policy concerns of those constituents who play no role in getting the representative elected. And voters everywhere are adversely affected by the distorted and unrepresentative legislature Act 43 produces. As former Wisconsin Senate Majority Leaders from both parties recently wrote in the Washington Post, a

25
“different kind of politics” takes hold when maps are “rigged” and politicians no longer “ha[ve] to win votes from the middle”:
With party control pre-decided, most legislators care only about their primary elections. Everyone knows who’s going to win the general election. There’s much less incentive to reach bipartisan compromise. Instead, we see policy decided in partisan caucuses, leaving the minority out in the cold.
Tim Cullen & Dale Schultz, We led the Wisconsin Senate. Now we’re fighting gerrymandering in our state, Wash. Post, June 20, 2017 (emphasis supplied).13
The Legislature misconstrues Shaw v. Reno, 509 U.S. 630, 648 (1993) for the proposition: “[P]resum[ing] that voters who support[] losing candidates are deprived of representation” is “antithetical to our system of representative democracy.” Br. 23. In fact Shaw says the opposite. Describing a racial gerrymander, the Court wrote:
The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group,

13

https://www.washingtonpost.com/opinions/we-led-the-

wisconsin-senate-partisan-gerrymandering-in-our-state-and-

others-goes-too-far/2017/06/20/8978544e-55d1-11e7-ba90-

f5875b7d1876_story.html?utm_term=.563d4d7fc4c0 (emphasis

added).

26
rather than their constituency as a whole. That is altogether antithetical to our system of representative democracy.
Shaw, 509 U.S. at 648. The same holds true for a partisan gerrymander. The Republican legislators have every reason to cater to their core voters and every incentive to ignore the interests of the minorityparty voters.
The Legislature contends that votes for the losing candidate can force the winning candidate to “#adopt more moderate centrist positions’ and to be more responsive to independent and swing voters.” Br. 26 (quoting Opinion below (Griesbach, J., dissenting), JSA 287a). But that holds true only in competitive districts. Act 43 intentionally minimized this salutary feature of a republican form of government.
The Legislature claims “unexpectedly close” elections serve as beneficial “wake-up call[s]” for politicians. Br. 26. But in a gerrymandered legislature the majority can sleep undisturbed. “Unexpectedly close” elections are too rare to serve as any meaningful check on the majority party’s gerrymander, or realistically cause a candidate “to be more responsive to the independent and swing voters.” Id.; see also pp. 12–14 above on frequency of competitive elections. The Legislature also overlooks the data regarding polarization of legislatures, which places Wisconsin near the top of the list. Boris Shor & Nolan McCarty, Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. Rev., 530, 537, 540, 546 (2011). The Wisconsin Legislature’s documented high degree of political polarization even before 2011 refutes the Legislature’s claim that the ordinary processes of democratic

27
elections will bring legislators to the center and cause them to moderate their views. Br. 23-26.
This polarization has reinforced the dominance of a caucus system in the legislature, demanding fealty to the majority of the caucus and eliminating even the possibility of dialog with minority legislators. See e.g., JSA 8a-9a (describing how caucus system blocks minority-sourced legislation).
The relationship between elected officials and constituents that the Legislature lauds in an audacious effort to argue that gerrymanders do no harm is not only counterfactual, it is not in keeping with this Court’s previous statements on the subject. See p. 11 above; see also Vieth, 541 U.S. at 329–30 (Stevens, J., dissenting) (“Gerrymanders subvert that representative norm because the winner of an election in a gerrymandered district inevitably will infer that her success is primarily attributable to the architect of the district rather than to a constituency defined by neutral principles.); Bandemer, 478 U.S. at 132 (“[U]nconstitutional discrimination occurs … when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”).

28
IV. The Authors of Act 43 Did not Assume Away Party Volatility)They Planned for It.
The Legislature offers another surprising defense in Section II.D of its Brief. Partisan gerrymandering claims, it says, “ignore the reality” that how a voter voted in past elections does not “necessarily dictate[] what results that voter would prefer to see in the next election.” Br. 27. This is an empirical claim that voter movement from one party to another prevents mapmakers from severely impeding the voting strength of either party. Thus, lawmakers who spent some $431,000 to build one of the most partisan districting plans in U.S. history now contend that gerrymanders do not work. JSA 246a-247a.
Gerrymandering claims do not rely on any assumption that, at the individual level, “party affiliation rarely changes” or “candidates do not matter.” Br. 29. Indeed, anticipating vote switching—and insulating partisan advantage against it—is an essential part of any gerrymandering project, and was here. These phenomena occur, but they do not occur in sufficient numbers to overcome the advantage that Act 43 built into a majority of districts.
The Legislature’s expert, Professor Gaddie, conducted elaborate analyses to test how maps would respond to changes in party preference. JSA 22a-23a, 27a, 41a-42a, 54a, 131a; SA 335-339 (Prof. Gaddie “S Curves”). His predictions were borne out: the gerrymandered map was robust enough in the face of normal political ebbs and flows to give Republicans what they paid for—a severe and durable partisan

29
advantage.14 Professors Mayer and Jackman tested the same thing: how would the gerrymander hold up in the face of likely shifts in party preference? They correctly predicted that the Act 43 map would reliably produce Republican majorities even in years where the Republican vote share sagged well below 50%. JSA 148a.15 All the experts agreed on this general method. JSA 149a at n.255.
Indeed, Professor Jackman projected almost exactly how the efficiency gap would react in a year like 2016 when the Republicans did well. He predicted 10% and the actual efficiency gap was around 11%. Br. of Eric McGhee as Amicus Curiae in Support of Neither Party at 17, n.6; SA 360. His sensitivity testing further shows that even had the trend from 2012 to 2016 been
14 If accepted, this argument would also defeat claims of racial vote dilution. While race is immutable, voting preferences are not. Racial vote dilution claims therefore depend on a link between voting preferences and race that is no less empirical than the link between voting preferences and party.
15 The Legislature also points out that the gerrymander challenged in Vieth and another judicial gerrymander cited by the Vieth court in North Carolina failed to hold up. Br. 27. As with the partisanship/vote correlation argument (see above at 14–21), here the Legislature selects a few examples purporting to disprove a general rule. But, those picks again prove only the unremarkable proposition that political behavior is not a perfect science. This occasional failure of a gerrymander may reflect on the skill of the gerrymanderers, the over-ambitious drawing of maps or wave elections. The Legislature has not and cannot show that any gerrymander meeting the standards set forth by the district court in this case would likely fail. To the contrary, the district court required proof that an intentionally discriminatory map would likely endure throughout the period of the gerrymander. JSA 148a-152a, 158a, 166a, 172a.

30
Democratic, the gerrymander would still have produced reliably pro-Republican seat shares. Id., JSA 148a, 152a at n.262, 165a.
Moreover experience confirms the accuracy of the Legislature’s 2011 district-by-district partisanship composite scores as predictors of 2012 and 2016 presidential election results.

31
Graphs generated by Microsoft Excel 2010 from composite scores at SA 325 and data compiled by DailyKos.16
Statistics purporting to show “significant intradecade volatility in partisan balance” are less persuasive still. Br. 28. As the Legislature would have it, frequent changes in party control under the same electoral map would suggest legislative power in Wisconsin goes solely and simply to the party whose “candidates do a better job than their counterparts at earning votes.” Br. 29. In fact, Wisconsin’s actual “intra-decade volatility” suggests the opposite. Under the court-imposed non-gerrymandered map in force from 2004-2010, both parties won and lost seats, with Republicans gaining, losing, then regaining majorities in both legislative chambers as one would expect absent gerrymandered districts engineered to survive common partisan shifts. By contrast, in the wake of Act 43, starting in 2014 only four races changed party out of 198 races held. Wisconsin Election Results, supra. The “simple explanation” for this divergence is not better candidates, but gerrymandered safe majorities. And the record shows just how effective that gerrymander has been. In 2012, 51.4% of the statewide vote gave Democrats 39 Assembly seats, but a “roughly equivalent vote share for Republicans (52% in 2014) . . . translated into 63 seats”—yielding a 24seat disparity. JSA 154a. The Legislature does not seek to explain this disparity.
16 See Jeffmd, Daily Kos Elections’ statewide election results by congressional and legislative districts, Daily Kos, July 9, 2013, https://www.dailykos.com/stories/2013/7/9/1220127/-Daily-KosElections-2012-election-results-by-congressional-and-legislativedistricts.

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CONCLUSION
The Legislature’s counter-factual and counterhistorical account only demonstrates why ordinary political processes have not and will not solve this problem. This Court should affirm the judgment of the district court.
Respectfully submitted,

THEODORE R. BOEHM HOOVER HULL TURNER 111 Monument Circle Suite 4400 Indianapolis, IN 46204 (317) 822-4400
tboehm@hooverhullturner.com

JOSEPH H. YEAGER, JR. Counsel of Record
HARMONY A. MAPPES DULANY LUCETTA POPE MATTHEW B. HARRIS JEFFREY P. JUSTMAN JULIANA YANEZ FAEGRE BAKER DANIELS LLP 300 North Meridian Street Suite 2700 Indianapolis, IN 46204 (317) 237-0300 jay.yeager@faegrebd.com

Counsel for Amicus Curiae

 
 No. 16-1161 ================================================================

In The
Supreme Court of the United States

---------------------------------  --------------------------------BEVERLY R. GILL, ET AL.,
Appellants, v.

WILLIAM WHITFORD, ET AL.,

Appellees. ---------------------------------  ---------------------------------

On Appeal From The United States District Court For The Western District Of Wisconsin
---------------------------------  ---------------------------------

BRIEF OF THE GEORGIA STATE CONFERENCE OF THE NAACP, LAVELLE LEMON, MARLON REID,
CELESTE SIMS, PATRICIA SMITH, AND COLEY TYSON AS AMICI CURIAE IN SUPPORT OF APPELLEES
---------------------------------  ---------------------------------

KRISTEN CLARKE JON GREENBAUM EZRA D. ROSENBERG
Counsel of Record JULIE HOUK JOHN POWERS LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW
Suite 400 Washington, DC 20005 (202) 662-8600 erosenberg@
lawyerscommittee.org

WILLIAM V. CUSTER JENNIFER B. DEMPSEY BRYAN CAVE LLP 1201 W. Peachtree St. Atlanta, GA 30312 (404) 572-6600 bill.custer@bryancave.com

Counsel for Amici Curiae

================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

i
TABLE OF CONTENTS Page
TABLE OF CONTENTS ...................................... i
TABLE OF AUTHORITIES ................................. iii
INTEREST OF THE AMICI CURIAE ................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................... 2
ARGUMENT ........................................................ 6
I. Partisan Gerrymandering Claims Are Justiciable.................................................. 6
II. Invidious Intent to Minimize the Voting Power of a Political Element Is a JudiciallyManageable Standard ............................... 12
A. Invidiousness Is an Accepted, JudiciallyManageable Standard ......................... 13
B. The Invidiousness Standard Must Be Applied in a Manner Sufficiently Flexible to Cover a Variety of Political Gerrymanders............................................ 15
C. There Is a Settled Method of Proving Invidiousness Applicable to Partisan Gerrymandering Cases........................ 18
D. There Are Accepted Factors That Go to Proof of Invidiousness ......................... 19
1. Discriminatory Impact ................... 20
2. The Use of Race to Achieve a Partisan End in Line-Drawing ............... 21
3. Modifying a Plan Mid-Decade ........ 24

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TABLE OF CONTENTS – Continued Page
III. A Robust Invidiousness Standard Allows for Necessary Flexibility and Evolution of Subsidiary Standards ................................ 25
CONCLUSION..................................................... 27

iii
TABLE OF AUTHORITIES Page
CASES Ala. Legislative Black Caucus v. Alabama, 135
S. Ct. 1257 (2015) ....................................................16 Ariz. State Legislature v. Ariz. Indep. Redistrict-
ing Comm’n, 135 S. Ct. 2652 (2015) .........................6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................15 Baker v. Carr, 369 U.S. 186 (1962) ....... 6, 12, 13, 26, 27 Benisek v. Lamone, No. 1:13-cv-03233-JKB, 2017
WL 3642928 (D. Md. Aug. 24, 2017) .........................8 Bethune-Hill v. Va. State Bd. of Elections, 137
S. Ct. 788 (Mar. 1, 2017)..........................................16 Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263 (1993) ........................................................15 Burns v. Richardson, 384 U.S. 73 (1966)....................17 Cano v. Davis, 211 F. Supp. 2d 1208 (C.D. Cal.
2002) ........................................................................23 Cooper v. Harris, 137 S. Ct. 1455 (May 22,
2017) .................................................................... 16, 21 Davis v. Bandemer, 478 U.S. 109 (1986) ............ passim Fortson v. Dorsey, 379 U.S. 433 (1965) .......................17 Gaffney v. Cummings, 412 U.S. 735 (1973) ..........14, 17 Georgia State Conference of the NAACP, et al. v.
State of Georgia, et al., ___ F. Supp. 3d ___, 2017 WL 3698494 (Aug. 25, 2017) .................. passim Griffin v. Breckenridge, 403 U.S. 88 (1971) ................14

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TABLE OF AUTHORITIES – Continued Page
Harris v. Arizona Indep. Redistricting Com’n, 136 S. Ct. 1301 (2016) .............................................27
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ..................... 19, 21, 22, 25
Luther v. Borden, 48 U.S. 1 (1849)..............................12 Marbury v. Madison, 5 U.S. 137 (1803)......................11 Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla.
2002) ........................................................................23 Meyer v. Nebraska, 262 U.S. 390 (1923) .....................24 Miller v. Johnson, 515 U.S. 900 (1995) .......................22 N.C. State Conf. of NAACP v. McCrory, 831 F.3d
204 (4th Cir. 2016)...................................................22 Packingham v. North Carolina, 137 S. Ct. 1730
(June 19, 2017) ........................................................23 Patino v. City of Pasadena, 230 F. Supp. 3d 667
(S.D. Tex. Jan. 6, 2017) ............................................23 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 23 Reynolds v. Sims, 377 U.S. 533 (1964)............ 14, 26, 27 Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d
686 (S.D. Tex. 2013).................................................23 Rogers v. Lodge, 458 U.S. 613 (1982)..........................14 Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016)............22 Vieth v. Jubelirer, 541 U.S. 267 (2004) ............... passim

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TABLE OF AUTHORITIES – Continued Page
Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977) ...................................................... 4, 18, 19
White v. Weiser, 412 U.S. 783 (1973)...........................27 Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis.
2016) ..................................................................15, 16 Williams v. Rhodes, 393 U.S. 23 (1968) ......................13
CONSTITUTIONAL PROVISIONS U.S. Const. art. IV, § 4.................................................12 U.S. Const. amend. I ...............................................7, 23 U.S. Const. amend. XIV ...................................... passim
LEGISLATIVE AUTHORITIES H.B. 566.................................................................10, 11
OTHER AUTHORITIES Travis Fain & Laura Leslie, Redistricting crite-
ria call for partisan maps, no consideration of race, WRAL, Aug. 10, 2017........................................9 Justin Levitt, Intent Is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. ___ (forthcoming 2017) ......................................8

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TABLE OF AUTHORITIES – Continued
Page
Ann E. Marimow & Josh Hicks, Judges in Md. redistricting case decry politically motivated electoral map, THE WASHINGTON POST, July 14, 2017 ...........................................................................8
Laughlin McDonald, The Looming 2010 Census: A Proposed Judicially-Manageable Standard and Other Reform Options for Partisan Gerrymandering, 46 Harv. J. on Legis. 243 (2009) ............8
Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a procedural Safeguard against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301 (1991) .................................7
Bill Torpy, Torpy at Large: Democracy divided should not stand, THE ATLANTA JOURNALCONSTITUTION, Aug. 23, 2017...................................25

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INTEREST OF THE AMICI CURIAE1
The Georgia State Conference of the National Association for the Advancement of Colored People (NAACP) was formed in 1941 to eliminate racial discrimination through democratic processes and ensure the equal political, educational, social, and economic rights of all persons, in particular African-Americans. The Georgia NAACP, Lavelle Lemon, Marlon Reid, Celeste Sims, Patricia Smith, and Coley Tyson (Georgia redistricting plaintiffs) have brought a redistricting lawsuit in the United States District Court for the Northern District of Georgia. See generally Georgia State Conference of the NAACP, et al. v. State of Georgia, et al., ___ F. Supp. 3d ___, 2017 WL 3698494 (Aug. 25, 2017). The Georgia redistricting plaintiffs’ claims include the allegation that the 2015 mid-census cycle redrawing of Georgia State House Districts 105 and 111 is an unconstitutional partisan gerrymander. On August 25, 2017, a three-judge panel dismissed that count for failure to provide a judicially-manageable standard with respect to the alleged discriminatory effect. Id. at *12-13. The Georgia redistricting plaintiffs have an interest in the instant appeal because it raises foundational issues related to the justiciability and standard of review for partisan gerrymandering cases,
1 No counsel for a party has authored this brief in whole or in part, and no counsel or any party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to its preparation or submission. The parties have consented to the filing of amicus briefs.

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directly impacting the adjudication of their constitutional rights.
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INTRODUCTION AND SUMMARY OF ARGUMENT
For over three decades, a majority of the Court has ruled that partisan gerrymander cases are justiciable, a conclusion consistent with the cognate apportionment cases. There appears to be no precedent for this Court to remove a category of cases from justiciability to non-justiciability. To do so would be particularly anomalous in the face of the universal acknowledgement, among jurists and legal commentators, that partisan gerrymandering is incompatible with our democracy because it denies voters a reasonable opportunity to elect representatives of their choice, and allows representatives to disregard these voters.
Partisan gerrymanders, and their attendant evils, come in many guises. It is therefore not only important for this Court to hold that partisan gerrymander cases are justiciable with respect to a statewide apportionment, but also to recognize that the evils wrought by this conduct may be accomplished subtly, with surgical precision targeted at a single district to accomplish a similarly anti-democratic end. In 2015, the Republican-controlled Georgia legislature carefully manipulated the lines of two swing districts in the State House of Representatives, Districts 105 and 111. See Georgia State Conf. of the NAACP v. State of Georgia, ___

3
F. Supp. 3d ___, 2017 WL 3698494, at *2 (Aug. 25, 2017) (three-judge panel). Elections in both districts were very close in 2012 and 2014, and their demographics were shifting to the disadvantage of the white, Republican incumbents. See id. at *2-3. The 2015 changes, in aggregate, moved African-American voters out of and white voters into both districts. There was a net gain of 2,191 non-Hispanic white residents in District 105, according to 2010 Census data, while there was a net loss of 1,137 non-Hispanic African-American and 1,073 Hispanic residents in District 105. In District 111, there was a net gain of 1,335 non-Hispanic white residents, and a net loss of 1,251 non-Hispanic AfricanAmerican and 277 Hispanic residents.2 Id.
This dilutive redistricting accomplished its goal. In 2016, the white, Republican incumbents in both districts narrowly defeated their black, Democratic challengers – in one case by 222 votes. Nevertheless, a federal court has dismissed a partisan gerrymandering claim against Georgia, on the basis that the plaintiffs failed to plead a “metric” by which to measure discriminatory effect such as disproportionality, asymmetry, or efficiency gaps. See Georgia State Conf. of the NAACP, 2017 WL 3698494, at *12-13. However, these metrics are relevant only to a statewide analysis and are not applicable to a district-specific challenge. A
2 Amici are not asking the Court to adjudicate the Georgia redistricting case, because it is not before the Court. Rather, they are positing the facts alleged in that case, as if true, for the purpose of providing the Court with a real-life example of a pinpoint gerrymander so as to demonstrate one of the other forms of partisan gerrymanders.

4
pinpoint redistricting, however, can violate constitutional principles as much as a statewide partisan gerrymander. Any standard or standards adopted by this Court must be flexible enough so as to apply to both. Accepting the justiciability of partisan gerrymandering cases but adopting rules that effectively permit subtler but equally pernicious forms of gerrymandering would allow democracy to die by a thousand cuts.
The sole basis for doubt as to the justiciability of partisan gerrymandering cases is the purported lack of “judicially-manageable standards” to guide resolution of these cases, a concept derived from the “political question” cases. There is, however, an accepted, overarching, judicially-manageable standard applicable to these cases: whether the line-drawing was done with the invidious intent to minimize the voting strength of a group of voters. This standard has been a staple of Equal Protection apportionment cases. It is sufficiently flexible to apply both to a statewide redistricting plan like that in Wisconsin and a pinpoint redistricting plan like that in Georgia. Moreover, there is an accepted method of proving invidiousness, applying the standards set forth in Village of Arlington Heights. Moreover, accepted factors such as discriminatory impact, the use of race to achieve partisan ends, and modification of a plan mid-decade are indicia of invidiousness in line-drawing. Indeed, clarification that the use of race as a tool to effect a partisan gerrymander is an indicium of invidiousness is necessary to dispel the notion that jurisdictions can use partisanship as a defense to pernicious racial gerrymanders.

5
A robust invidiousness standard allows for the necessary flexibility and the evolution of subsidiary standards. Since partisan gerrymandering cases come in different forms, there is no need for the Court to announce, in this case, the precise subsidiary standards that must be met in all future cases. Indeed, it would be a mistake to do so, because one subsidiary standard cannot possibly fit all gerrymanders. The same subsidiary standards may not necessarily apply to a statewide post-census redistricting as to a mid-decade manipulation of a handful of districts. For example, while quantitative measures such as disproportionality, asymmetry, or an efficiency gap may be corroborative of invidiousness in a statewide redistricting, they are not relevant in a pinpoint gerrymander of one or a handful of districts, such as the one at issue in Georgia.
The courts, guided by judicially-manageable standards, may devise the subsidiary standards on a case-by-case basis, as they evolve over time, precisely the way other constitutional jurisprudence has developed. The stronger the evidence of invidiousness, the sounder the basis for the Court to determine that the impact of the line-drawing is caused by an unconstitutional intent to minimize the voting strength of a particular political element.
---------------------------------  ---------------------------------

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ARGUMENT
I. Partisan Gerrymandering Claims Are Justiciable
For over three decades, a majority of the Court has ruled that partisan gerrymander cases are justiciable. Davis v. Bandemer, 478 U.S. 109, 118-27 (1986); Vieth v. Jubelirer, 541 U.S. 267, 307-68 (2004) (Kennedy, J., concurring; Stevens, J., Souter, J., Ginsburg, J. Breyer, J., dissenting). The justiciability of these cases is consistent with the Court’s ruling in Baker v. Carr, 369 U.S. 186 (1962), that cases brought under the Fourteenth Amendment challenging the constitutionality of redistricting decisions did not present non-justiciable “political questions.”
The plurality in Vieth, who opined that partisan gerrymander claims were not justiciable because of the lack of “judicially-manageable standards,” provided not a single example where this Court had moved a category of cases previously ruled justiciable into the non-justiciable category. Amici are unaware of a comparable decision. Barring the judicial review of partisan gerrymandering claims would be particularly anomalous because this Court has itself stated that partisan gerrymanders are incompatible with democratic principles. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (alterations in original) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (plurality opinion)).
This is because such conduct goes “to the adequacy of representation,” Bandemer, 478 U.S. at 125. From

7
the voter’s perspective, partisan gerrymandering has been characterized as denying a particular group “its chance to effectively influence the political process,” id. at 132-33, and an effective opportunity to elect representatives of their choice in violation of the Equal Protection Clause. Id. at 167-68 (Powell, J., concurring and dissenting). Justice Souter has described it as a “fairness” issue, deviating from the constitutional standard that each political group is supposed to have the same chance to elect their representatives. Vieth, 541 U.S. at 343 (Souter, J., dissenting).
To others, the problem is “conceding to legislatures a power of self-selection,” which is in tension with a Constitution “whose most arresting innovation was the dispersion of power.” Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a procedural Safeguard against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301, 304 (1991). Justice Stevens believes that the practice violates the decision-maker’s duty to remain impartial. Vieth, 541 U.S. at 326 (Stevens, J., dissenting). Justice Kennedy has suggested that partisan gerrymandering may raise First Amendment issues because political classifications are used “to burden a group’s representational rights.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the judgment).
Regardless of whether the constitutional source of the right is the First or the Fourteenth Amendment, authorities agree that the consequences of partisan gerrymandering are profound. Lawmakers may choose their voters for the purpose of ensuring a near-certain

8
result, which allows elected officials to disregard the citizenry’s needs and concerns. Laughlin McDonald, The Looming 2010 Census: A Proposed JudiciallyManageable Standard and Other Reform Options for Partisan Gerrymandering, 46 Harv. J. on Legis. 243, 244 (2009). This in turn leads to the voters being denied an “effective voice in policy making,” and the ability to protect their rights. Id. Even worse, as one commentator has said, “districts intentionally designed to subordinate voters based on party preference are more likely to actually suppress representation of that political viewpoint, whether that suppression is measurable or not.” Justin Levitt, Intent Is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. ___, pp. 34-35 (forthcoming 2017).
Partisan gerrymandering is not going away, and it is not owned by one particular political party. One federal judge has described Maryland Democrats’ congressional redistricting plan as politically motivated “nefarious activity.”3 The three-judge panel hearing a challenge to that plan agrees that the segregation of voters by political affiliation for partisan ends is “noxious” and “repugnant to representative democracy.” Benisek v. Lamone, No. 1:13-cv-03233-JKB, 2017 WL 3642928, at *14 (D. Md. Aug. 24, 2017); see also id. at *15 (Niemeyer, J., dissenting) (concluding that “the
3 Ann E. Marimow & Josh Hicks, Judges in Md. redistricting case decry politically motivated electoral map, THE WASHINGTON POST, July 14, 2017, available at https://www.washingtonpost.com/ local/public-safety/judges-in-md-redistricting-case-decry-politicallymotivated-electoral-map/2017/07/14/33b44fc2-6814-11e7-992822d00a47778f_story.html?utm_term=.1f85c92384f5.

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record could not be clearer that the mapmakers specifically intended to dilute the effectiveness of Republican voters in the Sixth Congressional District and that the actual dilution that they accomplished was caused by their intent.”). In North Carolina, where the state legislature must redraw congressional and state legislative districts struck down as racial gerrymanders, House Rules Chairman David Lewis has publicly suggested that a partisan gerrymander is forthcoming, stating that, “[t]he entire process of where lines are drawn – every result from where a line’s drawn – will be an inherently political thing.”4
Partisan gerrymanders come in various guises, although they perpetuate the same evils. While the instant case centers on statewide redistricting, the Georgia redistricting case focuses on a limited number of districts. Of the 7,556 residents surgically moved from Georgia State House District 105 into a neighboring safe Republican district, 2010 Census data indicates that 63.8 percent are African-American or Hispanic; they were replaced by 7,380 residents, of whom only 35.6 percent are African-American or Hispanic. See Georgia State Conf. of the NAACP, 2017 WL 3698494, at *2. With respect to District 111, more than 30,000 residents were shuttled in and out of four adjoining districts, increasing the white population percentage
4 Travis Fain & Laura Leslie, Redistricting criteria call for partisan maps, no consideration of race, WRAL, Aug. 10, 2017, available at http://www.wral.com/redistricting-criteria-call-forpartisan-maps-no-consideration-of-race/16871238/.

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by 2.3 percentage points, and decreasing the nonHispanic African-American percentage by the same amount. Id. at *3. These changes, while relatively small in comparison to a statewide apportionment, had a decisive effect in countering the demographic shifts in the populations of Districts 105 and 111. Id. at *2-3.
The reason is obvious: the State House elections in both districts in 2012 and 2014 were close and featured racially polarized voting patterns, both districts were experiencing an increase in the registered voter percentage due to demographic changes, and minority voters are perceived as reliably supporting Democratic State House candidates. Id. The Republicandominated Georgia legislature did not want to risk the incumbents in either district losing to a Democratic challenger. The Legislature accomplished its goal by splitting precincts and moving census blocks, for which there are racial data but no electoral information. See id. at *12. Moreover, reflecting the hurried and secret nature of this legislation, the adoption of H.B. 566 did not follow the normal legislative procedures. AfricanAmerican legislators serving on the House Legislative and Congressional Reapportionment and the Senate Reapportionment and Redistricting Committees were excluded from the process of drawing and negotiating the plans ultimately codified in H.B. 566. Id. at *2.
The November 2016 races for House District 105 and 111 were each close and proved just how effective these changes could be in district elections. In 2016, the white, Republican incumbents in both districts again ran against African-American candidates who

11
were Democrats. Id. at *2-3. Despite the adjustments made by the legislature to tilt the outcome and the presence of racially polarized voting patterns, the margins remained uncomfortably close. See id. In the election for House District 105, the margin of victory was so close that the race went to recount. The incumbent ultimately defeated her challenger by only 222 votes. Id. at *2. In House District 111, the incumbent’s margin of victory in that election was only 946 votes, an even tighter result than in past races. Id. at *3. But for H.B. 566, and the mid-decade redistricting, AfricanAmerican Democrats would likely have won both races in these districts. Id. at *2-3.
The minority voters in these districts have therefore been deprived of their chance to have an effective voice and to influence their representatives because of their race and presumed political affiliation. It cannot be the law that it is constitutional for one political party to make a series of incremental changes designed for one purpose and one purpose only: to stack the deck by moving opposing party members out of one district and into another whenever an election becomes close. That is the antithesis of a true democracy. Unless partisan gerrymandering cases are justiciable, the Court is consigning democracy to die by a thousand cuts. Clearly, partisan gerrymandering is an area where the Court must exercise its paramount authority “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

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II. Invidious Intent to Minimize the Voting Power of a Political Element Is a JudiciallyManageable Standard
The sole basis for doubt as to the justiciability of partisan gerrymandering cases is the purported lack of “judicially-manageable standards” to guide resolution of these cases. See, e.g., Vieth, 541 U.S. 267, 277-90 (plurality opinion). However, the overarching standard of an invidious intent to minimize the voting strength of a group of voters is a time-tested, judicially-manageable standard.
The concept that justiciability is contingent on the availability of judicially-manageable standards finds its genesis in Baker v. Carr, 369 U.S. 186 (1962), where the Court distinguished the “political questions” inherent in cases brought under the Guaranty Clause5 from those implicated in cases brought under the Fourteenth Amendment, such as partisan gerrymandering cases. In the former, the Court explained that it had not been able to identify a “set of judicially manageable standards which courts could utilize independently in order to identify a State’s lawful government.” Id. at 223.6 Discrimination claims brought under the Fourteenth Amendment, however, do not face this obstacle:
5 The Guaranty Clause requires the federal government to “guarantee to every State in the Union a Republican Form of Government.” U.S. Const. art. IV, § 4.
6 The leading Guaranty Clause case in this respect is Luther v. Borden, 48 U.S. 1 (1849), where, in the face of the Dorr Rebellion, the Court was asked to rule in effect that Dorr’s alternative

13
Nor need the appellants, in order to succeed in this [Equal Protection] action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if, on the particular facts, they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.
369 U.S. at 226.
A. Invidiousness Is an Accepted, JudiciallyManageable Standard
The settled benchmark for discrimination claims brought under the Equal Protection Clause is invidiousness. See, e.g., Williams v. Rhodes, 393 U.S. 23, 3031 (1968) (noting that “we have . . . held that ‘invidious’ distinctions cannot be enacted without a violation of the Equal Protection Clause.”). This Court has consistently applied this standard to various types of Equal Protection challenges to redistricting, including racial gerrymandering, one person one vote, and vote dilution
government was lawful, superseding Rhode Island’s charter government, because the latter limited the vote to landowners. Chief Justice Taney, writing for the Court, rejected the claim, and, in so doing, created the “political question” doctrine. The decision, of course, predated the enactment of the Fourteenth Amendment.

14
claims.7 In the past, this Court has also suggested that invidiousness is relevant to the analysis of partisan gerrymandering claims.8 A standard emphasizing the offensiveness of the line-drawers’ conduct is consistent with the Court’s traditional usage of “invidiously discriminatory animus,” as acknowledged by Justice Scalia in his discussion of that phrase by this Court in Griffin v. Breckenridge, 403 U.S. 88 (1971):
The nature of the ‘invidiously discriminatory animus’ Griffin had in mind is suggested both by the language used in that phrase (“invidious . . . [t]ending to excite odium, ill will, or envy; likely to give offense; esp., unjustly and irritatingly discriminating,” Webster’s Second International Dictionary 1306 (1954)) and by
7 See, e.g., Reynolds v. Sims, 377 U.S. 533, 656-66 (1964) (a redistricting plan impairs Fourteenth Amendment rights if it employs “invidious discriminations based upon factors such as race or economic status.”); Rogers v. Lodge, 458 U.S. 613, 622 (1982) (declining to “disturb the District Court’s finding that the at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population”).
8 Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (multimember districts “may be vulnerable” to constitutional challenges “if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”); Davis v. Bandemer, 478 U.S. 109, 124 (1986) (noting that “[d]iluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race. . . .”) (quoting Reynolds, 377 U.S. at 565-66); Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J., concurring in the judgment) (a redistricting plan constitutes an unconstitutional partisan gerrymander if political classifications “were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”).

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the company in which the phrase is found (“there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus,” Griffin, 403 U.S., at 102, 91 S. Ct., at 353 (emphasis added)).
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 274 (1993).9
B. The Invidiousness Standard Must Be Applied in a Manner Sufficiently Flexible to Cover a Variety of Political Gerrymanders
The difference between the Wisconsin statewide post-census redistricting and the mid-decade districtspecific manipulation that occurred in Georgia in 2015 demonstrates the need for flexibility in the applicability of the invidiousness standard. For example, the district court in this case employed a standard requiring that the legislature possess “an intent to entrench a political party in power” for the remainder of the decade, or “to make the political system systematically
9 Similarly, invidiousness is the standard applicable to claims of discriminatory burdens in violation of the First Amendment, which the district court here, and Justice Kennedy have posited as the appropriate constitutional basis for political gerrymandering claims. See Whitford v. Gill, 218 F. Supp. 3d 837, 883 (W.D. Wis. 2016); Vieth, 541 U.S. at 315 (Kennedy, J., concurring); and see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[w]here the claim is invidious discrimination in contravention of the First . . . Amendment[ ], our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.”).

16
unresponsive to a particular segment of the voters based on their political preference.” Whitford, 218 F. Supp. 3d 837, 887 & n. 170, 896 (W.D. Wis. 2016). Plaintiffs offered various statistical models to support their claim, including an “efficiency gap” analysis which quantified the “wasted” votes of the parties, i.e., those not needed to win a race and those wasted on losing races, on a statewide basis.
The entrenchment standard and quantitative methods such as the efficiency gap analysis may be applicable when adjudicating a statewide redistricting plan. They are not necessarily applicable in smallerscale, subtler, yet equally invidious gerrymanders, such as the pinpoint, mid-census redistricting enacted for the purpose of making a handful of highly competitive districts safer for incumbents of a political party that was already enjoying a super-majority, as occurred in Georgia in 2015. In cases such as that, the evil is the simple practice of stacking the deck incrementally in a particular district, a concept the Court has recognized in its racial gerrymandering jurisprudence. See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 148182 (May 22, 2017) (North Carolina Congressional Districts 1 and 12 were racially gerrymandered); BethuneHill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (Mar. 1, 2017) (analyzing whether race predominated in drawing 11 of 12 Virginia House of Delegate districts); Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1264 (2015) (holding that analyzing racial gerrymandering in the context of the state “as a whole” is legally erroneous and the district court erred in

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concluding that race did not predominate in the creation of Alabama Senate Districts 7, 11, 22, or 26).
Where particular districts have been subjected to partisan gerrymandering, a standard different than “entrenchment” should apply. Fortunately, this Court has already created that standard. In Burns v. Richardson, a one person, one vote case, the Court defined a multi-member apportionment scheme as having a discriminatory effect if it is shown that, “ ‘designedly or otherwise . . . under the circumstances of a particular case, [it] would operate to minimize or cancel out the voting strength of racial or political elements of the voting population’ ” (emphasis added). 384 U.S. 73, 88 (1966) (quoting Fortson v. Dorsey, 379 U.S. 433, 439 (1965)). This standard is consistent with this Court’s pronouncements in partisan gerrymandering cases that an electoral district “may be vulnerable” to constitutional challenges “if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized,” Gaffney v. Cummings, 412 U.S. 735, 754 (1973), and that “each political group in a State should have the same chance to elect representatives of its choice as any other political group.” Bandemer, 478 U.S. at 124.
A standard focused on an invidious intent to minimize or cancel out the votes of certain elements of the voting population based on their political association is more rigorous than the “mere intent to disadvantage” standard offered by the plurality in Davis v.

18
Bandemer, 478 U.S. 109 (1986).10 It also provides courts with the flexibility needed to apply to both statewide or pinpoint gerrymanders because the affected “elements of the voting population” can be located in a single district or throughout the state.
The Court should set a standard in this statewide gerrymandering case that is sufficiently broad and flexible to apply to cases such as that presented by Georgia’s pinpoint gerrymander. If not, the Court should make clear that the unique circumstances surrounding pinpoint redistricting necessitate a different framework from the one used in statewide gerrymandering cases.
C. There Is a Settled Method of Proving Invidiousness Applicable to Partisan Gerrymandering Cases
Not only has the overarching legal standard of invidiousness been firmly established in discriminatory intent claims, but this Court has set clear guidelines for approaching proof of invidiousness through both direct and circumstantial evidence. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266-68 (1977). These factors include the impact of the official action, the specific sequence of events leading up to the challenged decision, departures from the normal procedural and substantive departures from typical methods and manners of
10 Vieth, 541 U.S. at 284 (plurality opinion) (characterizing the standard offered by the Bandemer plurality).

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decision-making, and legislative and administrative history, including contemporary statements by members of the decision-making body. Id.
Having regularly applied the Arlington Heights factors, courts are seasoned in delving into the invidiousness of alleged discriminatory practices. Invidiousness bears all of the hallmarks of a judiciallymanageable standard.
D. There Are Accepted Factors That Go to Proof of Invidiousness
Case law provides ample examples of the sort of objective facts that can contribute to a finding of invidious intent to discriminate on account of political affiliation. These include not only express statements of decision-makers to that effect, but also trial-tested evidence such as disproportionate impact, using race as a proxy for party, deviating from traditional districting principles, redistricting in the middle of a census cycle, and other forms of manipulation that indicate the decision-maker strayed from typical procedures or made substantive choices that furthered no legitimate governmental interest. See, e.g., League of United Latin American Citizens v. Perry, 548 U.S. 399, 422 (2006) (addressing appellants’ contention that the Texas Legislature “intentionally sought to manipulate” districts through their population variances). Of course, not all of these elements are going to be present in every case, but some salient factors are laid out below.

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1. Discriminatory Impact
Disproportionality in the results of statewide elections – i.e., the gap between a party’s vote share and seat share in a state – does not in of itself prove an unconstitutional statewide partisan gerrymander. Bandemer, 478 U.S. at 130-31. However, when combined with other factors, it can support the conclusion of an invidious intent to minimize the voting strength of a discrete political element. The same is true of other statewide measures of impact such as asymmetry (the extent to which the percent of votes of one party does not translate to the percent of votes achieved by the opposing party) or the efficiency gap.
Such statewide measures of impact, however, are not applicable to pinpoint gerrymanders, as the measure of impact corroborative of invidiousness does not involve a comparison with other districts, but only the actual, or projected election result. The Georgia pinpoint redistricting serves as an example. In 2012 and 2014, white, Republican incumbents barely beat Black Democrats in districts where the minority registered voter percentage was steadily increasing due to demographic changes. In 2015, the Legislature responded by cutting neighborhoods of Black Democratic voters out of those districts. See Georgia State Conf. of the NAACP, 2017 WL 3698494, at *12. A quantification of statewide disproportionality, asymmetry, or efficiency gap would not instruct on the discriminatory impact of the line-drawing. Rather, the proof of impact would be in the form of past election results and projected future

21
election results, i.e., showing that elections were tight, that specific groups were targeted for exclusion or inclusion in the district, and that the line-drawing party continued to win, or could be projected to win. See Bandemer, 478 U.S. at 141 (plurality opinion) (combining the district configurations “with vote projections to produce future election results. . . .”).
2. The Use of Race to Achieve a Partisan End in Line-Drawing
The use of race as a proxy for partisan goals has been a recurring theme in redistricting litigation over the years, which shows no sign of abating.11 Unfortunately, this is precisely what the Georgia Legislature
11 See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1476-77 (May 22, 2017) (rejecting State claim that politics alone drove drawing of congressional district, not race); LULAC v. Perry, 548 U.S. 399, 440 (2006) (rejecting State’s claim that redrawing of Congressional district was primarily for political, not racial, reasons); Perez v. Abbott, No. 5:11-cv-00360-OLG-JES-XR, 2017 WL 3495922 at *41 (W.D. Tex. Aug. 15, 2017) (describing State’s purpose of adding significant population from Travis County into Congressional District 35 was “to use race as a tool for partisan goals.”); id., 2017 WL 1450121 at *14-16 (W.D. Tex. Apr. 20, 2017) (rejecting State’s excuse that increasing or maintaining the Spanish surname voter percentage while simultaneously and intentionally minimizing Latino voters’ ability to elect in State House Districts 78 and 117 was partisan gerrymandering”); id., 2017 WL 962947, at *59 (W.D. Tex. Mar. 10, 2017) (describing “mapdrawers as willing to disadvantage minorities to gain partisan advantage . . . and that they were willing to use race to gain partisan advantage . . . and limit the number of Democrat districts overall”).

22
did when redrawing Georgia State House of Representatives Districts 105 and 111 in 2015. See Georgia State Conf. of the NAACP, 2017 WL 3698494, at *12.
Employing the use of race to further partisan interests is per se evidence of an invidious politically discriminatory intent. This may occur by using racial data as a proxy for partisan performance, intentionally packing or cracking minority communities, using arbitrary numerical racial thresholds not based on evidence of minority voters’ ability to elect, splitting voting precincts or voting tabulation districts and using racial data, artificially inflating the minority percentage in a low-turnout district to benefit the other political party, or other means.
It is important for the Court to clarify that using race as a proxy for party is an indicium of invidiousness in partisan gerrymander cases, because courts have not been uniform in their response to the defense of partisanship in racial discrimination cases.12
12 See, e.g., Miller v. Johnson, 515 U.S. 900, 914 (1995) (stating that the “use of race as a proxy” for “political interest[s]” is “prohibit[ed]”); League of United Latin American Citizens v. Perry, 548 U.S. 399, 440 (2006) (finding that the Texas redistricting plan bore “the mark of intentional discrimination” on the basis of race when the legislature used racial considerations to achieve a partisan result); Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (en banc) (discussing that the rapid increase in minority populations in Texas such that “the party currently in power is ‘facing a declining voter base and can gain partisan advantage’ through a strict voter ID law” was evidence that could support a finding of intentional discrimination based on race); N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 222 (4th Cir. 2016) (stating that “intentionally targeting a particular race’s access to the franchise

23
Discriminating on the basis of race to achieve a partisan goal should not be a defense against a racial discrimination claim. Even if partisanship were a legitimate goal, targeting a suspect class as the means of achieving that goal is unconstitutional. See, e.g., Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (June 19, 2017) (holding that a North Carolina law preventing sex offenders from using social media for the purpose of protecting vulnerable victims was unconstitutional because it was unnecessarily burdensome on First Amendment rights); Price Waterhouse v. Hopkins,
because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose”); Perez v. Abbott, 2017 WL 962947, at *63 (W.D. Tex. Mar. 10, 2017) (finding that the redistricting plan was intentionally discriminatory because the legislature drew the plan on the basis of race “using race as a proxy for voting behavior”); Patino v. City of Pasadena, 230 F. Supp. 3d 667, 727-28 (S.D. Tex. Jan. 6, 2017) (finding that “[b]y clearly and explicitly intending to diminish Latinos’ voting power for partisan ends, Pasadena officials intentionally discriminated on the basis of race”); contra Rodriguez v. Harris Cty., Tex., 964 F. Supp. 2d 686, 804 (S.D. Tex. 2013) (declining to find racial considerations “steered the redistricting process” because “proclivities” of Latinos to vote Democratic and Anglos to vote Republican, “without more, cannot transform partisanship into race discrimination”); Cano v. Davis, 211 F. Supp. 2d 1208, 1248 (C.D. Cal. 2002) (California legislature had non-racial goals such as “protecting incumbents” and “advancing partisan interests” and the redistricting plan was therefore not intentionally discriminatory); Martinez v. Bush, 234 F. Supp. 2d 1275, 1296-98 (S.D. Fla. 2002) (finding that the “Republican-controlled legislature intended to maximize the number of Republican congressional and legislative seats through the redistricting process” and engaged in a “raw exercise of majority legislative power” but did not intentionally discriminate on the basis of race).

24
490 U.S. 228, 241 (1989) (identifying the standard under Title VII when a plaintiff proves that her gender played a motivating part in an employment decision); Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (Nebraska law prohibiting teaching any language other than English through eighth grade, enacted to promote civic development, violated the Fourteenth Amendment). In the context of a partisan gerrymandering claim, it is itself an indication that the jurisdiction is acting unconstitutionally.
3. Modifying a Plan Mid-Decade
If a legislature modifies a legitimately drawn, legislatively-enacted plan compliant with the one person, one vote principle, and enacts an unnecessary midcensus redistricting plan solely for the purpose of making swing districts less competitive to the benefit of the party in power, that is an indicium of an invidious partisan motive.
Again, the 2015 Georgia State House redistricting plan is an instructive example of a mid-census redistricting enacted with such an invidious intent. There, the Georgia Legislature needlessly redrew district boundaries that complied with the one person, one vote principle and had survived scrutiny by the Department of Justice. See Georgia State Conf. of the NAACP, 2017 WL 3698494, at *2. Its purpose in doing so was to move the goal posts to help white Republican incumbents who had narrowly defeated black Democratic challengers in swing districts that were experiencing

25
an increase in minority voter registration percentage due to demographic changes.13 Id. at *2-3. In the case of State House District 105, Representative Joyce Chandler won by 554 votes in 2012 and 789 votes in 2014, and has since acknowledged that her district is becoming increasingly “diverse,” while adding that the Legislature acted without her asking for any special redistricting help.14 In the 2016 election, under the new lines, Chandler prevailed by 222 votes. See id. at *2.
III. A Robust Invidiousness Standard Allows for Necessary Flexibility and Evolution of Subsidiary Standards
Partisan gerrymandering claims do not present an absence of judicially-manageable standards, but, rather, as Justice Kennedy has termed it, a search for
13 While this Court confirmed in League of United Latin American Citizens v. Perry (LULAC) that the Constitution does not prohibit mid-decade redistricting per se, mid-decade modifications of the swing districts by the same party that drew the lines merit scrutiny, particularly when that party has already achieved super-majority status, the facts of the Georgia redistricting are distinguishable from those in LULAC v. Perry. In that case, the Supreme Court stated that (1) partisan gain was not necessarily the “sole motivation” for the entire redistricting plan, id. at 417; (2) the Republican legislature was replacing a courtordered plan, which had previously entrenched the Democrats, a party on the verge of minority status, id. at 416, 419; and (3) the new plan made the “party balance more congruent to statewide party power.” Id. at 419.
14 Bill Torpy, Torpy at Large: Democracy divided should not stand, THE ATLANTA JOURNAL-CONSTITUTION, Aug. 23, 2017, available at http://www.myajc.com/news/local/torpy-large-democracydivided-should-not-stand/KaxFVEPXsuxkBGpUe7BpeK/.

26
“subsidiary” standards. Vieth, 541 U.S. at 314. In Justice Kennedy’s view, that search may be for ways of quantifying the effect of the gerrymander. And, as discussed above, in some cases such quantification may corroborate the invidiousness of the line-drawing. However, because partisan gerrymander cases come in so many different forms, there is no need for the Court to announce a single standard – other than invidiousness – to govern these cases.
Indeed, it would be a mistake to do so, because one subsidiary standard cannot possibly fit all gerrymanders. The same subsidiary standards cannot apply to a statewide redistricting on the heels of a census cycle that will apply to a mid-decade manipulation of the lines of a single district. The courts, guided by general standards, may devise the subsidiary standards on a case-by-case basis, as they evolve over time, precisely the way other constitutional jurisprudence has developed.
This is what happened in the cognate area of one person, one vote cases after Baker v. Carr, 369 U.S. 186 (1962). In Reynolds v. Sims, 377 U.S. 533 (1964), the Court declined to employ a specific substantive standard in the course of concluding that Alabama’s apportionment plans violated the Equal Protection Clause, instead simply declaring that “the deviations from a strict population basis are too egregious . . . to be constitutionally sustained.” 377 U.S. at 568-69. While Chief Justice Warren declared in Reynolds that “mathematical nicety is not a constitutional requisite” when adjudicating one person, one vote cases under the

27
Equal Protection Clause, id. at 569, the Court would later reverse course and determine that certain numerical thresholds were in fact appropriate.15 By not defining the limits of the one person, one vote principle at the outset, Carr and Reynolds gave lower courts latitude to rein in severe malapportionment in the short term while allowing the Court to develop workable and easily-communicable legal standards in future cases.
In this context, the focus on the invidiousness of the decision making relieves the courts of the need to adopt a one-size-fits-all set of subsidiary standards. The stronger the evidence of invidiousness, the sounder the basis for the Court to determine that the impact of the line-drawing is caused by an unconstitutional intent to minimize the voting strength of a particular political element.
---------------------------------  ---------------------------------
CONCLUSION
Partisan gerrymanders are incompatible with our democracy and deny voters a meaningful opportunity to elect candidates of their choice. For the foregoing
15 Harris v. Arizona Indep. Redistricting Com’n, 136 S. Ct. 1301, 1305 (2016) (holding that “[b]ecause the maximum population deviation between the largest and the smallest district is less than 10%, the appellants cannot simply rely upon the numbers to show that the [state legislative] plan violates the Constitution.”); White v. Weiser, 412 U.S. 783, 790 (1973) (even small congressional district population deviations are allowed only in “unavoidable” instances).

28

reasons, the Court should hold that partisan gerrymandering claims are justiciable and subject to a judicially-manageable standard. That standard should be based on the principle that invidious discrimination against a group of voters based on their presumed political persuasion is prohibited under the Constitution. The invidiousness standard is widely accepted and can be applied in a sufficiently broad and flexible manner to cover the variety of gerrymanders being employed by political parties today, including the “pinpoint” gerrymander enacted by the Georgia legislature in 2015.

Respectfully submitted,

KRISTEN CLARKE JON GREENBAUM EZRA D. ROSENBERG
Counsel of Record JULIE HOUK JOHN POWERS LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW,
Suite 400 Washington, DC 20005 (202) 662-8600 erosenberg@
lawyerscommittee.org

WILLIAM V. CUSTER JENNIFER B. DEMPSEY BRYAN CAVE LLP 1201 W. Peachtree St. Atlanta, GA 30312 (404) 572-6600 bill.custer@bryancave.com

Counsel for Amici Curiae

 
 No. 16-1161

In the Supreme Court of the United States

───────────────────
BEVERLY R. GILL, et al., Appellants,
v.

WILLIAM WHITFORD, et al.,

Appellees.

─────────────────── On Appeal from the United States District Court
for the Western District of Wisconsin

───────────────────
BRIEF OF CALIFORNIA CITIZENS REDISTRICTING COMMISSION AND FAIRDISTRICTS NOW, INC. AS AMICI
CURIAE IN SUPPORT OF APPELLEES

───────────────────

Benjamin R. Fliegel REED SMITH LLP 355 S. Grand Avenue Los Angeles, CA 90071 (213) 457-8000 bfliegel@reedsmith.com

September 5, 2017

Brian A. Sutherland Counsel of Record
REED SMITH LLP 101 2nd Street San Francisco, CA 94105 (415) 543-8700 bsutherland@reedsmith.com

i

Table of Contents

Page

Interest of Amici Curiae..............................................1

Summary of Argument................................................2

Argument ..................................................................... 3

I. Amici Curiae’s Experiences Show That Neutral Decision-Makers Can Implement Non-Partisan Standards for Drawing Electoral Districts.............................................3

A. California’s Citizens Redistricting Commission ............................................4

1. California’s Standards for Drawing Electoral Districts ........5

2. California’s Experience ...............6

B. FairDistricts Now, Inc. ..........................9

1. Florida’s Standards for Drawing Electoral Districts ......10

2. Florida’s Experience..................10
II. Upon a Finding That a Redistricting Plan Violates Voters’ Rights Through Partisan Gerrymandering, Neutral Redistricting Standards Are a Permissible Remedy ...........14
Conclusion .................................................................16

ii

Table of Authorities

Page(s)

Cases

Brown v. Secretary of State, 668 F.3d 1271 (11th Cir. 2012) ............................ 10

Davis v. Bandemer, 478 U.S. 109 (1986) .............................................. 14

In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597 (Fla. 2012)................................ 10, 11

League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) .............................................. 14

League of Women Voters of Florida v. Florida House of Representatives, 132 So. 3d 135 (Fla. 2013)................................ 9, 10

League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (Fla. 2015).................................... 11

League of Women Voters of Florida v. Detzner, 179 So. 3d 258 (Fla. 2015).................................... 12

Radanovich v. Bowen, No. 11-cv-09786 (C.D. Cal. Feb. 9, 2012) ....................................................................... 8

iii
Vandermost v. Bowen, 269 P.3d 446 (Cal. 2012) ............................ 4, 5, 6, 8
Vieth v. Jubelirer, 541 U.S. 267 (2004) .................................... 1, 14, 15
Constitutions and Statutes
Cal. Const. art. XXI, § 2 ...................................... 4, 5, 6
Cal. Gov’t Code §§ 8251 et seq. .................................... 5
Cal. Gov’t Code § 8252................................................. 5
Cal. Gov’t Code § 8253................................................. 6
Fla. Const. art. III, § 16............................................. 11
Fla. Const. art. III, § 20......................................... 9, 10
Fla. Const. art. III, § 21......................................... 9, 10
Other Authorities
Barry Edwards et al., Institutional Control of Redistricting and the Geography of Representation, 79 J. Politics 722 (2017) .............................................. 8
Eric McGhee & Daniel Krimm, California’s New Electoral Reforms: The Fall Election (Nov. 2012), https://goo.gl/Whm3iS ......................................... 8-9

iv
Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015) .................................. 15
Nicholas O. Stephanopoulos, Arizona and Anti-Reform, 2015 University of Chicago Legal Forum 477 (2015)........................... 9
Raphael J. Sonenshein, When the People Draw the Lines (League of Women Voters of Cal. 2012), https://goo.gl/ER4RiX ............................................. 8
Vladimir Kogan & Eric McGhee, Redistricting California: An Evaluation of the Citizens Commission Final Plans, 4 Cal. J. Politics & Policy 1 (2012) ....................................... 8

INTEREST OF AMICI CURIAE1
Since this Court issued its decision in Vieth v. Jubelirer, the States of California and Florida, which together account for more than one sixth of the population of the United States, have amended their state constitutions to prohibit partisan gerrymandering. California granted authority to an independent commission to draw district boundaries while Florida entrusted its Legislature with that task. The citizens of both States enacted a constitutional rule that districts may not be drawn for the purpose of favoring or disfavoring political parties. A fundamental premise underlying this rule is that neutral decision-makers are able to apply it, in the case of line drawers, or enforce it, in the case of courts, in a non-partisan manner.
The mission of California’s Citizens Redistricting Commission and FairDistricts Now, Inc. is to ensure that electoral districts are drawn in a non-partisan manner in California and Florida, respectively. Amici curiae have a strong interest in the outcome of this case because public confidence in their work depends on the proposition that rules requiring non-partisan redistricting can be respected and applied. If this Court were to conclude that no neutral principles for
1 Pursuant to Rule 37.6, amici curiae state that no counsel for a party authored this brief in whole or in part and that no person other than amici and their counsel made a monetary contribution to its preparation or submission. The parties’ letters consenting to the filing of amicus curiae briefs have been filed with the Clerk’s office.

2
drawing electoral boundaries exist—that the redistricting process raises little besides “political questions”—that conclusion might undercut amici curiae’s institutional mission. Accordingly, while amici curiae take no position on the ultimate outcome of this case, they urge the Court to conclude that neutral arbiters, including commissions and courts, can implement redistricting standards in a nonpartisan manner, thereby protecting voters’ constitutional rights.
SUMMARY OF ARGUMENT
Neutral, non-partisan principles for drawing electoral boundaries exist. They can be found in the constitutions of the States of California and Florida, which expressly prohibit line-drawing for the purpose of favoring or discriminating against an incumbent or political party. Instead, in these States, map drawers must follow traditional redistricting principles such as contiguity, compactness, and respect for existing political boundaries. In the experience of amici curiae, when those who prepare an apportionment plan seek to avoid partisan considerations, they can produce a plan that is free from invidious discrimination based on voters’ political views and associations.
The decisions of California and Florida voters to amend their state constitutions to prohibit partisan gerrymandering strongly suggest that these voters concluded that, absent legal constraints, redistricting to favor or disfavor political parties poses a serious risk of burdening voters’ rights. Amici curiae do not, however, propose a standard for determining

3
whether a State’s redistricting plan imposes an unconstitutional burden. Their limited aim is to assist the Court by providing assurance that neutral decision-makers proceeding in good faith can apply redistricting principles in a non-partisan manner.
Thus, while a federal court should intervene in the States’ redistricting processes only as a last resort, if it finds that a State’s redistricting plan violates voters’ constitutional rights, it may provide redress appropriate to that injury: a plan drawn without discriminatory partisan intent, using traditional redistricting principles.
ARGUMENT
I. Amici Curiae’s Experiences Show That Neutral Decision-Makers Can Implement Non-Partisan Standards for Drawing Electoral Districts
The constitutions of California and Florida prohibit the drawing of electoral maps with an intent to favor or disfavor a political party. These rules matter. Amici curiae’s experiences demonstrate that while applying mandatory redistricting criteria in a non-partisan manner is not a simple task, neutral decision-makers can create apportionment plans in accordance with applicable law and without discriminating against voters based on their political views or associations.

4
A. California’s Citizens Redistricting Commission
In 2008 and 2010, California voters exercised their legislative initiative authority to approve ballot propositions 11 and 20, respectively, which amended their state constitution and statutes. As amended, California’s constitution establishes an independent commission—the Citizens Redistricting Commission (“CRC”)—to draw state legislative districts and congressional districts. See Vandermost v. Bowen, 269 P.3d 446, 455 (Cal. 2012).
California’s constitution provides that the CRC shall have fourteen members, composed of five members of the State’s largest political party (Democratic), five members of the next largest political party (Republican), and four members from neither of these parties. Cal. Const. art. XXI, § 2(c)(2). To approve a district map, at least three members from each of the three groups (i.e., the two largest political parties in California based on registration and three votes from members who are not registered with either of these two political parties) must vote in favor of it. See id. § 2(c)(5).
California law imposes numerous requirements designed to prevent political partisans from “hacking” or infiltrating the Commission. California citizens may apply to serve as commissioners. To be eligible, the applicant must have voted in two out of the last three statewide elections and must have been registered to vote as a member of the same political party, or unaffiliated with any party, for the last five years. Cal. Const. art. XXI, § 2(c)(3). In

5
addition, an applicant is disqualified if, during the ten years prior to applying, he or she or an immediate family member was elected or appointed to or a candidate for state office; or an employee or consultant to a political party, campaign, or legislative body; or a registered lobbyist; or a contributor of $2,000 or more to a congressional, state, or local campaign. Cal. Gov’t Code § 8252(a)(2). These requirements guard against partisan attempts to conceal party affiliation.
An applicant review panel consisting of one Democrat, one Republican, and one non-partisan member screens applicants to reduce the pool to sixty individuals. Certain designated legislative leaders may thereafter strike, collectively, up to 24 members of the pool. Three Democrats, three Republicans, and two from neither party are then chosen by lottery, and these eight select the remaining six to form the full fourteen-member CRC. Cal. Gov’t Code § 8252.
1. California’s Standards for Drawing Electoral Districts
The stated purpose of the ballot proposition creating the CRC was to “draw districts based on strict, nonpartisan rules designed to ensure fair representation.” Prop. 11, as approved by voters, General Election (Nov. 4, 2008), § 2(d), https://goo.gl/b6TiJW. As California’s constitution declares, the CRC is designed to be “independent from legislative influence ….” Cal. Const. art. XXI, § 2(c)(1); see id. § 2(c)(2); Cal. Gov’t Code §§ 8251 et seq.; Vandermost, 269 P.3d at 455-56.

6
California’s constitution provides that “[d]istricts shall not be drawn for the purpose of favoring or discriminating against an incumbent, political candidate, or political party.” Cal. Const. art. XXI, § 2(e). On the flip side of the same coin, producing competitive elections or partisan symmetry is not a permissible CRC goal. Instead, the CRC must apply non-partisan criteria in drawing electoral districts, including compliance with the United States Constitution and Voting Rights Act, geographic contiguity and compactness, and respect for existing municipal and county boundaries. See id. § 2(d); Vandermost, 269 P.3d at 457-58. The CRC must consider the geographic integrity of any local “community of interest,” except that such communities shall not include any relationship with political parties, incumbents, or candidates. Cal. Const. art. XXI, § 2(d)(4).
The CRC’s redistricting process is open to public review and comment. Cal. Const. art. XXI, § 2(b)(1). The CRC engages in outreach seeking to increase public participation in the process. With limited exceptions, CRC records are public and available for inspection, and all proposed maps must be publicly displayed and available for public comment before final adoption by the CRC. Cal. Gov’t Code § 8253(a)(7); see also Vandermost, 269 P.3d at 484 (describing the process as “open, transparent and nonpartisan”).
2. California’s Experience
The process to select the fourteen members of the CRC took two years to complete. The applicant

7
review panel initially received 36,000 applications. It required potential candidates to submit a supplemental application that included essay questions, reference letters, and financial disclosure statements. It received and reviewed more than 4,000 supplemental applications, which it narrowed down to 120 candidates who were invited to interviews with the panel and legal counsel. After interviews, the panel reduced the pool to 60 candidates and the Legislature exercised its right to strike 24 of them. Eight were selected by lottery and those eight chose the remaining six. This lengthy selection process produced a commission that reflects California’s diversity and is well-qualified to handle its assigned constitutional role.
The two-year selection process was, of course, only the beginning. The CRC held 34 public hearings in 32 cities throughout California, during which more than 2,700 speakers provided comments. More than 20,000 individuals and groups submitted written comments or proposed maps. The CRC and its committees conducted more than 70 meetings that were open to the public, live-streamed over the Internet, recorded, and transcribed. Although the CRC gathered and processed more information and public input than expected, it published its final maps on schedule, approving the state maps by a vote of 13-1 and the congressional map by a vote of 12-2.
The CRC’s final Senate and congressional maps were the subject of legal challenges in the California Supreme Court and federal district court. The courts rejected these challenges to the CRC’s maps. See

8
Vandermost, 269 P.3d at 484; Radanovich v. Bowen, No. 11-cv-09786 (C.D. Cal. Feb. 9, 2012) (ECF No. 15).
Scholars who have studied the CRC’s maps have concluded that the CRC succeeded in adhering to constitutionally-mandated redistricting standards. Vladimir Kogan & Eric McGhee, Redistricting California: An Evaluation of the Citizens Commission Final Plans, 4 Cal. J. Politics & Policy 1 (2012); see also Barry Edwards et al., Institutional Control of Redistricting and the Geography of Representation, 79 J. Politics 722, 724-25 (2017). Kogan and McGhee found that the CRC drew compact districts, respected municipal and county boundaries, and succeeded in “nesting” Assembly districts within Senate districts— all while complying with the Voting Rights Act. See 4 Cal. J. Politics & Policy at 5-16. A contemporaneous opinion poll found that of those members of the public who were aware of the CRC’s work, those who approved of it outweighed those who did not by a margin of nearly two to one. Raphael J. Sonenshein, When the People Draw the Lines, at 71 (League of Women Voters of Cal. 2012), https://goo.gl/ER4RiX.
Although increasing the competitiveness of electoral districts was not a permissible CRC goal, it may not be surprising that increased competition can be a byproduct of following rules that require the line-drawing entity to disregard incumbency and partisan advantage. And observers have found that California districts became more competitive under the CRC’s non-partisan plans, i.e., the CRC’s districts included more open seats and closer races as compared with prior election years. See Eric McGhee

9
& Daniel Krimm, California’s New Electoral Reforms: The Fall Election (Nov. 2012), https://goo.gl/Whm3iS. These observations are congruent with studies showing a statistically significant relationship between commission redistricting and one measure of partisan symmetry—the efficiency gap. See Nicholas O. Stephanopoulos, Arizona and Anti-Reform, 2015 University of Chicago Legal Forum 477, 496-500 (2015).
In sum, although the CRC does not claim to have produced district maps that are immune from critique, it has discharged its constitutional and statutory duties to draw districts in accordance with the specified criteria and without a purpose to favor or disfavor any political party, incumbent, or candidate.
B. FairDistricts Now, Inc.
In 2010, Florida voters approved Amendments 5 and 6, known as the “Fair Districts” amendments, which are codified as sections 20 and 21 of article III of the Florida constitution. League of Women Voters of Fla. v. Fla. House of Representatives, 132 So. 3d 135, 139 & n.1 (Fla. 2013). The Fair Districts amendments did not transfer authority to draw districts from the Legislature to an independent commission. Instead, Florida voters enacted redistricting rules for their Legislature to follow. Amicus FairDistricts Now, Inc. was formed as a 501(c)(3) organization to monitor the redistricting process, educate the public about redistricting, and, if necessary, defend and enforce the Fair Districts amendments in court.

10
1. Florida’s Standards for Drawing Electoral Districts
Florida’s constitution provides that, in establishing congressional and legislative district boundaries, “[n]o apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent[.]” Fla. Const. art. III, §§ 20(a), 21(a). This provision does not require the Legislature to create a “fair plan” or competitive districts; rather, it requires a “neutral” plan drawn without the constitutionally-prohibited partisan intent. In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 643 (Fla. 2012). Under the Florida constitution, ‘‘there is no acceptable level of improper intent.’’ Id. at 617; see also League of Women Voters of Fla., 132 So. 3d at 138.
The Florida Legislature must apply non-partisan criteria in drawing electoral districts, including compliance with federal law, contiguity and compactness, and respect for existing political and geographic boundaries. Fla. Const. art. III, §§ 20, 21. Moreover, districts cannot be drawn to deny or abridge “the equal opportunity of racial or language minorities to participate in the political process.” Id.
2. Florida’s Experience
In 2012, after the Eleventh Circuit rejected a litigation challenge to one of the Fair Districts amendments (Brown v. Secretary of State, 668 F.3d 1271 (11th Cir. 2012)), the Legislature adopted legislative and congressional districts. As Florida’s

11
constitution required, the Florida Supreme Court reviewed the Legislature’s districts for the State House of Representatives and Senate. Fla. Const. art. III, § 16. The Court approved the House plan. It rejected the Senate plan as unconstitutional and directed the Legislature to re-draw it. In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d at 684-85.
The League of Women Voters of Florida and other plaintiffs filed separate actions asserting that the Legislature drew its congressional and Senate districts with improper intent to disfavor a political party, thereby discriminating against voters who associate with that party based on their political views. The congressional-districts action proceeded to trial, after which the trial court found that certain members of the Legislature had secretly collaborated with partisan consultants to draw maps with an intent to favor one political party and disfavor another. See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 376-77 (Fla. 2015).
The trial court found that, in cooperation and collaboration with the Legislature, partisan consultants arranged for intermediaries to submit, as their own, maps through the public-participation process that the consultants had drawn. The trial court found that this undisclosed arrangement— consultants using shills to submit highly partisan maps in collusion with the Legislature—“made a mockery of the Legislature’s proclaimed transparent and open process redistricting ….” Id. at 377 (italics omitted). The Florida Supreme Court affirmed and remanded for the re-drawing of a remedial map.

12
After the remand, the Legislature failed to agree on and enact a remedial plan for congressional districts and the trial court directed the parties to submit proposed plans to carry out the voters’ intent in approving the Fair Districts amendments. The House, Senate, and plaintiffs each submitted competing plans. Following hearings on the remedial plans, the trial court recommended that the Florida Supreme Court approve the plaintiffs’ proposed plan and the Court adopted that recommendation, ruling that the plan would be used for the 2016 elections and congressional elections thereafter until the next decennial redistricting. League of Women Voters of Fla. v. Detzner, 179 So. 3d 258, 297-98 (Fla. 2015).
Around the same time, in 2015, the parties to the Senate-district litigation entered into a stipulation and consent judgment. The Senate conceded in the stipulation that the apportionment plan adopted to establish Senate districts violated Florida’s prohibition against drawing districts with intent to favor or disfavor a political party. In accordance with the consent judgment, the Legislature convened a special session to re-draw the Senate districts. Once again, however, the Legislature could not agree on and enact a remedial plan—this time for the Senate districts. In the absence of legislatively-enacted plans, the trial court considered plans submitted by the parties. It selected plaintiffs’ proposed plan as the one that best complied with Florida’s constitutional redistricting standards. The Senate did not appeal that ruling.
The final Senate and congressional districts are compact, contiguous, and follow recognizable

13
boundary lines. For example, whereas the congressional map from 2002 split 110 cities and 30 counties into more than one district, the remedial map splits only 13 cities and 18 counties into more than one district. The enacted 2012 map, which the Florida Supreme Court invalidated, would have split more cities and counties into more than one district than does the remedial map. In addition, typical measures of district compactness (Reock, ConvexHull, Polsby-Popper) indicate that the remedial map’s districts are more compact, on average, than the districts from the invalidated 2012 plan.
In 2016, Florida held its first elections using these final districts. More candidates ran for election to Congress and the Senate than ever before. And congressional and legislative elections were more competitive in 2016, as compared with prior election years. For instance, Florida rarely saw serious competition in congressional races before 2016. But that year saw five close congressional races, each of which resulted in a change of party for the district— three districts previously held by Republicans were won by Democrats and two previously held by Democrats went to Republicans. While the districts were not drawn to create partisan symmetry or competition, it is not surprising to find that districts drawn without intent to favor incumbents or political parties have become more competitive.

14
II. Upon a Finding That a Redistricting Plan Violates Voters’ Rights Through Partisan Gerrymandering, Neutral Redistricting Standards Are a Permissible Remedy
The Constitution does not require proportional representation. League of United Latin American Citizens v. Perry, 548 U.S. 399, 419 (2006). But it does prohibit redistricting plans that infringe voters’ opportunity for equal participation in elections based on their membership in a political party. Davis v. Bandemer, 478 U.S. 109, 123-25 (1986); see also Vieth v. Jubelirer, 541 U.S. 267, 314-16 (2004) (Kennedy, J., concurring). And no member of this Court has suggested that a State has a compelling interest in— or even a rational basis for—drawing districts for the purpose of entrenching one political party’s hold on power. The question, then, is whether a State has indeed burdened voters’ constitutional rights and, if so, whether courts can provide a remedy without becoming unduly entangled in political questions. As noted, amici curiae address the second of these questions.
Amici curiae can well understand why courts would and should be reticent to undertake the “unwelcome obligation” to devise and impose redistricting plans. League of United Latin American Citizens, 548 U.S. at 415 (quotation marks omitted). To say that neutral decision-makers can apply manageable non-partisan standards is not to say that partisans will not try to influence proceedings. Moreover, courts and commissions can offer no assurance that their application of non-partisan

15
redistricting standards will not lead to a redistricting plan that benefits one political party over another. Vieth, 541 U.S. at 308-09 (Kennedy, J., concurring). In fact, redistricting unavoidably has political consequences.
None of this is a reason to conclude that federal courts cannot provide a remedy, as a last resort, when a state legislature acts with the intent and effect of burdening voters’ representational rights because of their political-party affiliation. There is a world of difference between drawing districts with an intent to crush one’s political opponents and drawing districts with an intent to avoid political considerations. Much depends on whether the political consequences that flow from a redistricting plan are “intended or not.” Ibid.; see also Jowei Chen & Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331, 332 (2015) (making a “crucial distinction between intentional and unintentional asymmetries in the transformation of votes to seats”). Drawing districts with an intent to subject one party’s voters to unequal representation is incompatible with democratic principles, decreases public confidence in government, and is likely to burden representational rights, no matter how courts measure that burden. The converse is true for drawing districts with an intent to avoid favoring or disfavoring political parties.
Thus, after a court concludes that a redistricting plan violates voters’ rights, it need not identify an alternative remedial plan that is substantively “fair”

16
to all political parties or one that produces partisan symmetry. Rather, amici curiae respectfully submit, it should ensure that districts are drawn without taking political party, incumbency, or candidacy into account. In amici curiae’s experience, while application of non-partisan redistricting standards cannot fully eliminate any and all possibility of partisan influence, neutral decision-makers can ensure that they do not act with an intent to burden voters’ representational rights because of their political party. Rather than engage in a balancing of political interests, this approach endeavors to avoid political questions at the remedial stage altogether.
CONCLUSION
The experiences of amici curiae demonstrate that neutral redistricting is possible and this Court should refrain from ruling that no neutral redistricting principles exist or that redistricting is inevitably tainted by partisanship.
Courts can provide appropriate redress for injuries caused by a cognizable partisan gerrymander through rules which disallow the drawing of districts for the purpose of favoring or disfavoring political parties.

17
Dated: September 5, 2017. Respectfully submitted, Benjamin R. Fliegel REED SMITH LLP 355 S. Grand Avenue Los Angeles, CA 90071 (213) 457-8000 bfliegel@reedsmith.com Brian A. Sutherland Counsel of Record REED SMITH LLP 101 2nd Street San Francisco, CA 94105 (415) 543-8700 bsutherland@reedsmith.com

 
 No. 16-1161
In the
Supreme Court of the United States

BEVERLY R. GILL, et al.,
v. WILLIAM WHITFORD, et al.,

Appellants, Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICI CURIAE REPRESENT.US AND RICHARD PAINTER IN SUPPORT OF APPELLEES

Scott Greytak Represent.Us P.O. Box 60008 Florence, Massachusetts
01062 (413) 333-5650

Atara Miller Counsel of Record
Daniel M. Perry Alison Bonelli Conor Colasurdo Taryn Gallup Alexandra Paslawsky Erik Wilson Milbank, Tweed, Hadley
& McCloy LLP 28 Liberty Street New York, New York 10005 (212) 530-5000 amiller@milbank.com

Counsel for Amici Curiae

275177

A
(800) 274-3321 • (800) 359-6859

i
TABLE OF CONTENTS Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT  . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Both Major Parties Engage In Partisan Gerrymandering, Which Harms Voters From Both Parties  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Partisan Gerrymandering Is A Form Of Corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. In Dra f t i ng T he Const itut ion, T he Framers Were Concerned With Preventing Corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. The Text Of The Constitution Restricts Corruption In Government . . . . . . . . . . . . . . . . . 19
1. The Elections Clause . . . . . . . . . . . . . . . . . . 19
2. The Seventeenth Amendment  . . . . . . . . . . 23
3. The Impeachment, Good Behavior, And Compensation Clauses . . . . . . . . . . . . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

ii

TABLE OF CITED AUTHORITIES CASES:

Page

Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ariz. State Legislature v. Ariz. Independent Redistricting Comm’n, 135 S. Ct. 2652 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Buckley v. Valeo, 424 U.S. 1 (1976)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cook v. Gralike, 531 U.S. 510 (2001) (Stevens, J.)  . . . . . . . . . . . . . . . . 21

Davis v. Bandemer, 478 U.S. 109 (1986)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Gonzalez v. United States, 553 U.S. 242 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Khudaverdyan v. Holder, 778 F.3d 1101 (9th Cir. 2015)  . . . . . . . . . . . . . . . . 13, 14

Kinsella v. Jaekle, 475 A.2d 243 (Conn. 1984)  . . . . . . . . . . . . . . . . . .  24-25

The Ku Klux Cases, 110 U.S. 651 (1884)  . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

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Cited Authorities Page
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 13, 16
League of Women Voters v. Pennsylvania, et al., Civ. No. 261 MD 2017 (June 15, 2017) . . . . . . . . . . . . . 5
Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002) . . . . . . . . . . . . . 4
McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . . . .  14, 15
McCutcheon v. Fed. Election Comm’n, No. 12-536, 2013 WL 3874388 (2013)  . . . . . . . . . . . .  17
Mistretta v. United States, 488 U.S. 361 (1989)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Newberry v. United States, 256 U.S. 232 (1921)  . . . . . . . . . . . . . . . . . . . . . 20, 22, 25
Perez v. State, 11 S.W.3d 218 (Tex. Crim. App. 2000)  . . . . . . . . . . . 25
Regalado–Escobar v. Holder, 717 F.3d 724 (9th Cir. 2013)  . . . . . . . . . . . . . . . . . . 13-14
Smiley v. Holm, 285 U.S. 355 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv
Cited Authorities
Page U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995)  . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
United States v. Classic, 313 U.S. 299 (1941)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Hatter, 532 U.S. 557 (2001)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Vieth v. Jubelirer, 541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . . 3, 13, 21, 22
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) . . . . . . . . . . . . 13
STATUTES & OTHER AUTHORITIES:
B. A. Hinsdale, American Government, National and State (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 20
Charles Doyle, Cong. Research Serv. 98-894 A, Impeachment Grounds: Part 2: Selected Constitutional Convention Materials 2-4 (1998)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Debates in the Federal Convention of 1787 as reported by James Madison, Documents Illustrative of the Formation of the Union of the American States, H.R. Doc. No. 398 . . . . . . . . . . . . . . . . . . . . . . . 15, 17-18

v
Cited Authorities Page
Deschler-Brown Precedents, vol. 3, ch. 14, sec. 18 . . . . 25
Federalist No. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Federalist No. 41  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
Federalist No. 63  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Federalist No. 78  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Federalist No. 79  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
G.A. Popock, The Machiavellian Moment: Florentine Political Thought and The Atlantic Republican Tradition 507 (1975) . . . . . . . . . . . . . . . 16
John Adams, A Defense of the Constitutions of Government of the United States of America, 1787-1788 . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
Jonathan Turley, Good Behavior Clause, in The Heritage Guide to the Constitution (Aug. 22, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Josh Hicks, Md. Gerrymandering lawsuit could impact 2018 voting map, The Washington Post (June 1, 2017)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Laura E. Little, An Excursion into the Unchar ted Waters of the Seventeenth Amendment, 64 Temp. L. Rev. 629 (1991) . . . . . . . . 23

vi
Cited Authorities
Page Noah Webster, A n A merican Dictionary
of the English Language (1828)  . . . . . . . . . . . . . . . . 14
Notes of the Secret Debates of the Federal Convention of 1787, Taken by the Late Hon. Robert Yates, Chief Justice of the State of New York, and One of the Delegates from That State to the Said Convention, H.R. Doc. No. 398  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 18
Redistricting and Representation in the Great Lakes Region, Midwest Democracy Network (April 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redistricting in Massachusetts after the 2010 census, Ballotpedia  . . . . . . . . . . . . . . . . . . . . . . 10
Rich Exner, How gerrymandered Ohio congressional districts limit the influence of Ohio voters  . . . . . . . . . . . . . . . . . . . . 7
Richard A. Posner, Law, Pragmatism , and Democracy 245 (2003)  . . . . . . . . . . . . . . . . . . . . . 4
Robert J. Morgan, Madison’s Theory of Representation in the Tenth Federalist, 36 J. Pol. 852 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Sabrina Eaton, In evenly split Ohio, redistricting gives GOP 12-4 edge in congressional seats, Cleveland.com (Nov. 11, 2012) . . . . . . . . . . . . . . . . . . . 7

vii
Cited Authorities Page
Samuel Johnson, A Dictionary of the English Language (H.J. Todd ed. 1818) . . . . . . . . . . . . . . . . . 14
U.S. Const. amend. XVII  . . . . . . . . . . . . . . . . . . . . . . 2, 23
U.S. Const. art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
U.S. Const. art. II, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Yasmin Dawood, The Antidomination Model and the Judicial Oversight of Democracy, 96 Geo. L.J. 1411 (2008) . . . . . . . . . . . . 16
Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009) . . . . . . . . . 15
Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff box to Citizens United (2014) . . . . . . . . . . . . . . . . . . .  15, 16

1
INTEREST OF THE AMICI CURIAE
Amicus curiae Represent.Us, is a non-partisan organization with more than 45 chapters nationwide that unites conservatives, progressives, and everyone in between to end political corruption.1 Partisan gerrymandering is a critical piece of Represent.Us’ broader policy suite, and as such, Represent.Us currently supports emerging ballot initiative efforts across the country that aim to end partisan gerrymandering on a statewide level. Represent.Us believes that extreme or excessive partisan gerrymandering will continue to undermine representative elections and foster corruption unless restrained by this Court.
Amicus curiae Richard Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School. He served as the chief ethics lawyer for President George W. Bush, as well as for White House employees and senior nominees to Senate-confirmed positions in the executive branch as Associate Counsel in the White House Counsel’s office from 2005 to 2007. He believes that partisan gerrymandering undermines the system of participatory democracy envisioned by the original Tea Party and the Constitution’s Framers.
1.  No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae, their members, or their counsel made a monetary contribution to its preparation or submission. The parties have filed blanket consents to the filing of all amicus briefs in this matter.

2
SUMMARY OF THE ARGUMENT
Partisan gerrymandering has long been a part of the American political landscape, diluting the voting power of Republicans and Democrats alike. Today, more than ever, we witness increasingly effective manipulation of district lines by both major parties. While state-based efforts like the ballot initiative campaigns currently underway in Missouri and Utah (which Represent.Us actively support) have led to significant reforms in the past, the power to facilitate any truly transformative, comprehensive, and structural reform uniquely lies with this Court. Now this Court is presented with such an opportunity, and should act on it. Permitting state legislatures to abuse their political power in service of their own self-interest—and at the expense of the public good—rejects the Framers’ vision of government embodied in the Constitution and illuminated by its history.
To be sure, extreme or excessive partisan gerrymandering amounts to the type of political corruption the Framers sought to prevent. Anti-corruption principles are an essential element of the Constitution’s history and the Framers’ intent. As history shows, the Framers were focused on weeding out corruption in the form of abuses of political power analogous to partisan gerrymandering. And reference to overlapping provisions in the Constitution—such as the Elections Clause, Impeachment Clause, and the Seventeenth Amendment—lends further support to the notion that the Constitution acts as a safeguard against corruption in the form of abuses of political power. This Court’s dismissal of these firm anti-corruption principles will leave state legislatures, such as that in Wisconsin, free to dictate electoral outcomes and evade constitutional restraints.

3
ARGUMENT
A. Both Major Par ties Engage In Par tisan Gerrymandering, Which Harms Voters From Both Parties
This Court has defined partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” Ariz. State Legislature v. Ariz. Independent Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015).2 For over three decades, this Court has recognized that victims of partisan gerrymandering may turn to the courts for relief, see Davis v. Bandemer, 478 U.S. 109 (1986), and in that time, it has not shied away from denouncing partisan gerrymandering’s ill effects. For instance, in Vieth v. Jubelirer, 541 U.S. 267, 312 (2004), this Court was clear that partisan gerrymandering is a significant problem that disrupts our constitutional order and “burdens rights of fair and effective representation.” Similarly, in Ariz. State Legislature, 135 S. Ct. at 2658, partisan gerrymandering was deemed “incompatible[] with democratic principles.” See also Vieth, 541 U.S. at 292; id. at 316 (Kennedy, J., concurring).
2.  Ironically, the man for who “gerrymandering” was named may have actually opposed the practice. See B. A. Hinsdale, American Government, National and State 196 (1895) (“Gerrymander. In humorous imitation of Salamander, from a fancied resemblance of this animal to a map of one of the districts formed in the redistricting of Massachusetts by the Legislature in 1811, when Elbridge Gerry was Governor. The districting was intended (it was believed, at the instigation of Gerry,) to secure unfairly the election of a majority of Democratic senators. It is now known, however, that he was opposed to the measure.”) (quoting The Century Dictionary).

4
Despite these acknowledged threats, partisan gerrymandering persists and impacts both Republican and Democratic voters alike. See Martinez v. Bush, 234 F. Supp. 2d 1275, 1297 (S.D. Fla. 2002) (“This raw exercise of majority legislative power does not seem to be the best way of conducting a critical task like redistricting, but it does seem to be an unfortunate fact of political life around the country.”); Richard A. Posner, Law, Pragmatism, and Democracy 245 (2003) (“although partisan gerrymandering is rife, the courts have done virtually nothing to control it”). Indeed, as the testimonials from the leaders of the Represent.Us chapters most affected by partisan gerrymandering indicate, voters in both “blue” and “red” states are harmed by partisan gerrymandering.3
In Wisconsin, Pennsylvania, and Ohio, for instance, Republican redistricting plans have left electoral outcomes heavily skewed in favor of Republicans at the expense of all other voters. The facts before the Court provide ample evidence of the ill-effects of gerrymandering in Wisconsin. As Jake Winkler, the former Represent Wisconsin chapter leader, states:
In Wisconsin, . . . the enclaves of red and blue safe districts in this historically purple state deepen partisan divides by encouraging groupthink and one-sided elections. We forget
3.  The leaders of the following chapters have expressed their support for this brief and the contents thereof: Represent Western Massachusetts (MA), Represent Boston (MA), Represent Central Pennsylvania (PA), Represent Northeastern Pennsylvania (PA), Represent Chicago (IL), Represent Lake County (IL), Represent McHenry County (IL), Represent Rockford (IL), Represent the DMV (DC, MD, VA).

5
to have conversations and instead fling epithets of “liberal” and “conservative” like they are discussion-enders. In short, our elected representatives should more closely match the makeup of the electorate. Too much power residing in either party results in the party doubling down to consolidate power, and a prime example of that is the gerrymandering every time our districts are redrawn.
The results of partisan gerrymandering can also be seen in Pennsylvania. For instance, in 2012, Republican candidates in Pennsylvania won only 49% of the statewide congressional vote—and yet won 72% of Pennsylvania’s congressional seats. In 2014 and 2016, Republican candidates retained the same 72% share of Pennsylvania’s seats, even while winning only 55% and 54%, respectively, of the statewide vote. See Petition for Review, League of Women Voters v. Pennsylvania, et al., Civ. No. 261 MD 2017 (June 15, 2017). Below are several testimonials from Pennsylvanians affected by partisan gerrymandering:
Peter Ouellette, Represent Northeastern Pennsylvania:
One of the results of partisan gerrymandering in Pennsylvania is that gridlock and partisanship in the General Assembly have become vividly apparent. Partisan bickering has led to the de-facto adoption of an out-of-balance state budget that was adopted without the Governor’s signature. The legislature is apparently unable to come up with any solution to the revenue shortfall. Continued borrowing, raising onetime chunks of money, increased sales taxes,

6
and fracking taxes have been suggested, but cannot be agreed upon…. The result for Pennsylvanians is a state that simply does not work…. If reforms are not enacted, Pennsylvania will become a partisan war zone during the next redistricting process. Money and party operatives from outside our state will pour in to influence the outcome. The losers in this war will be the citizens of Pennsylvania. We will lose our sovereignty in the state, become further detached from our government, and even more disenfranchised. The importance of the U.S. Supreme Court decision cannot be overstated.
Michael Hodgson, Represent Central Pennsylvania:
I believe we need to end political gerrymandering by both parties, because it is a corrupt practice that undermines the sacred democratic principle of “One person, One vote.” Political gerrymandering creates elected officials and their operatives who either have safe seats, or a strong desire to protect the status quo. Gerrymandering turns democracy on its head. People are supposed to pick those who represent them, but in Pennsylvania, our political leaders get to pick their voters. It is a huge conflict of interest, and, frankly, un-American, to let politicians be in charge of drawing the state and congressional districts. It is no different than letting the fox guard the hen house. Right now our country is deeply wounded by partisan politics and dysfunctional governing and various forms of political corruption. Democracy dies

7
when the system of redistricting is rigged to favor the status quo, rather than the will of the people.
Nora Utech, Represent Northeast Pennsylvania:
When we allow politicians to draw their own district lines, we are giving them the power to undermine democracy. Not only are we taking away the power of the people, but we are also weakening the vote itself, causing constituents to become frustrated and disengaged. Voters often feel as though their vote is wasted, which in all reality, it often is.
The statewide congressional results in Ohio are similar: following redistricting in Ohio after the 2010 United States Census, no state congressional seat has changed party hands since 2012, and Republicans in the last three elections have claimed 75% of the statewide vote in House elections while only winning 56% of the overall vote.4 The results of partisan gerrymandering deeply affect the citizens of Ohio:
Jacob Wagner, Represent Ohio:
I happen to live in perhaps the most absurdly gerrymandered Congressional District in the
4.  See Sabrina Eaton, In evenly split Ohio, redistricting gives GOP 12-4 edge in congressional seats, Cleveland.com (Nov. 11, 2012), http://www.cleveland.com/open/index.ssf/2012/11/ in_evenly_split_ohio_redistric.html; see also Rich Exner, How gerrymandered Ohio congressional districts limit the influence of Ohio voters, Cleveland.com (posted March 7, 2017, updated Apr. 17, 2017), http://www.cleveland.com/datacentral/index.ssf/2017/03/ ger r y meander ing _sharply.html.

8
country: Ohio’s 9th, which is essentially a just barely contiguous Lake Erie beach stretching from Toledo to Cleveland. Prior to the 2010 census, the 9th District covered the area between Toledo and Lorain, while Cleveland resided in the 10th District. The 9th District was represented by Marcy Kaptur, while the 10th District was represented by Dennis Kucinich. Both Democrats were a formidable presence in Congress, representing their constituents ably and with great passion. When the Republican-dominated Ohio legislature redrew the state’s districts after the 2010 Census, Kaptur and Kucinich were forced to face one another head on in the 2012 primary. It was painfully obvious to citizens throughout the new district that Republicans in the Statehouse had abused their sacred duty to dispose of a political foe. Kaptur won that 2012 primary after an ugly fight between former allies, and she won that November, too. She has won every election since, and she may as well have run unopposed each time. There is no such thing as a competitive Congressional District in Ohio on either side of the aisle; they have been gerrymandered into extinction.
By the same token, Republican voters in Illinois, Massachusetts, and Maryland have suffered at the hands of an entrenched Democratic state legislature. In Illinois, for instance, Democrats redrew congressional districts in ways that made it more difficult for Republican members, both incumbents and newcomers, to hold onto their House seats. In the 2012 elections, Democrats, who won only

9
55% of the votes, took 66% of the House seats.5 This has frustrated voters, irrespective of party lines:
Elizabeth Lindquist, Represent Rockford:
I’m a progressive who lives in Illinois’ 16th Congressional District. My district was gerrymandered by the Illinois Democrats to be over 60% Republican. It contains one-half of the closest metro area, Rockford, and onehalf another nearby area, DeKalb. It stretches 180 miles from the Wisconsin border down around the Chicago suburbs to the Indiana border. Not only is it impossible to elect anyone other than an extreme Republican here, the geographic length of the district makes it extremely difficult to organize opposition to the representative. I am not represented by my representative in any meaningful way.
Robbie McBeath, Represent Chicago:
Illinois has certainly suffered as a result of partisan gerrymandering. Under Speaker of the Illinois House of Representatives Michael Madigan, who in 2017 became the longest-
5.  See Redistricting and Representation in the Great Lakes Region, Midwest Democracy Network (April 2013), at http: // w w w.google.com /u rl?sa=t&rct=j&q=&esrc=s&sou rce= web&cd=4&c a d=r ja&ua ct=8&ved=0 a hU K Ew j27 Le 8 6 d7 VA h Ui 3Y M K H Zk n Ddc Q Fgg-M A M&u rl=ht tp% 3 A%2F%2F w w w. joycefdn.org%2Fassets%2Fimages%2FMDN_ Redistr icting _and_Representation_in_the_Midwest _FULL. pdf&usg=A FQ jCNG4OyHEkQ _CCLf6 -NhH Y X_ g iUvHZQ.

10
serving state House speaker in U.S. history, Illinois has gerrymandered its way to political gridlock, unable to adequately address urgent issues such as the state’s unprecedented budget crisis. In 2016, the Illinois Supreme Court ruled against a redistricting referendum, leading to Republican Illinois Governor Bruce Rauner to say, “What drives people away from Illinois is the sense that our political system is broken and our government is unaccountable to the people…. Today’s court decision to deny Illinoisans the right to vote on a redistricting referendum does nothing to stem the outflow or change people’s views of how the system is rigged and corrupt.” The result of political gerrymandering in Illinois is that voters are ultimately unable to fully exercise the power instilled in their right to vote, and because of their political affiliation, their voices are diminished before their representatives. Political gerrymandering is corruption, and it is hurting Illinois.
In Massachusetts, all ten House representatives in 2011 and 2012 were Democrats, after the 2010 census resulted in the loss of one seat.6 As Vicki Elson, the chapter leader of Represent Western Massachusetts, and Cristian Morales, the chapter leader of Represent Boston state:
6.  See Redistricting in Massachusetts after the 2010 census, Ballotpedia, https://ballotpedia.org/Redistricting_in_ Massachusetts_after_the_2010_census (last visited August 31, 2017).

11
Vicki Elson, Represent Western Massachusetts:
I am appalled that our democracy is seriously undermined by the unethical practice of partisan gerrymandering. There is no sensible rationale for allowing politicians to choose their voters, not the other way around. Districts should be drawn scientifically by nonpartisan experts to guarantee that every vote counts equally.
Cristian Morales, Represent Boston:
Massachusetts is the state which invented gerrymandering, and it uses it to ensure a Democratic super-majority in our State House; this unfair imbalance of power keeps our State House only 20% Republican even as our state electorate is 40% Republican. Almost every MA Democrat I’ve talked with has said that although they enjoy being on the “winning” side of gerrymandering, they would rather have a more democratic system in our state which truly represents all people. Massachusetts was established to be a “city on a hill,” and hundreds of years later, Massachusetts residents still want to serve as that ideal example of selfgovernance. We recognize that gerrymandering in our state is preventing us from fulfilling this goal of ours, and now, we want to fix it.
And in Maryland, Democrats redrew the 6th Congressional District and in the process, changed its partisan make-up. Prior to 2011, Republicans represented

12
nearly 47% of eligible voters within that District, compared with about 36% for Democrats. After the redistricting, Republicans represented 33% of eligible voters in the district, compared with 44% for Democrats. This resulted in Democrats winning seven of Maryland’s eight congressional seats.7 Maryland voters have been discouraged by what they view as an abuse of power that denigrates the electoral process:
Alex Dubinsky, Represent the DMV:
Because of partisan gerrymandering, I know exactly how elections in Maryland are going to turn out. I think it is vital to get people registered to vote and encourage them to go to the polls, but how am I supposed to do that when I know it does not even matter? This ludicrous practice of gerrymandering across the country disgusts me. It disrupts the entire foundation that our country was founded on, one where people, not those in political office, are expected to be the ones that have the true power. Until gerrymandering is brought to a halt, I, along with people across the country, will not feel as if we have the voice that we are promised in what is supposed to be the greatest democracy in the world.
7.  See Josh Hicks, Md. Gerrymandering lawsuit could impact 2018 voting map, The Washington Post (June 1, 2017), https:// www.washingtonpost.com/local/md-politics/md-gerrymanderinglawsuit-could-impact-2018-voting-map/2017/05/31/e1050080-461e11e7-bcde-624ad94170ab_story.html?utm_term=.e76fe498a178.

13
B. Partisan Gerrymandering Is A Form Of Corruption
Nearly as troublesome as the fact that partisan gerrymandering is a persistent and bipartisan problem is that otherwise-conscientious legislators publicly brag of skewing election outcomes and rigging control of legislatures. See Vieth, 541 U.S. at 317 (Kennedy, J., concurring) (state legislators “have reached the point of declaring that, when it comes to apportionment: ‘We are in the business of rigging elections.’”). This Court has acknowledged what these legislators seemingly fail to recognize: namely, that in extreme circumstances, partisan gerrymandering is “an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 456 (2006) (internal quotations and citations omitted); Vieth, 541 U.S. at 337 n. 30 (same); cf. Whitford v. Gill, 218 F. Supp. 3d 837, 886 (W.D. Wis. 2016) (the concept of “abuse of power” is at the “core of the Court’s approach to partisan gerrymandering”).
This abuse of power by state legislators in the form of extreme or excessive partisan gerrymandering is akin to corruption, as that concept is understood in its broader etymological and historic sense. In contemporary parlance, “corruption” is defined broadly as “the abuse of entrusted power for private gain.” See https://www. transparency.org/what-is-corruption/#define (last visited August 20, 2017); Khudaverdyan v. Holder, 778 F.3d 1101, 1109 (9th Cir. 2015) (Owens, J. concurring) (internal quotations omitted) (the Department of Justice “correctly defines corruption as the abuse of entrusted power for personal gain.”); cf. Regalado–Escobar v. Holder, 717 F.3d

14
724, 729–30 (9th Cir. 2013) (“Corruption broadly refers to an abuse of public trust.”). This “private” or “political” gain need not be monetary. Khudaverdyan, 778 F.3d at 1108 n.5 (“Corruption means a lack of integrity and a use of a position of trust for dishonest gain, which need not be financial. One form of ‘gain’ is the maintenance of a position of authority.”).
Both modern and historical dictionaries similarly define “corruption” broadly and in terms of a “loss of integrity” or “dishonest” behavior, untethered to financial gain. In fact, the definition of “corruption” has gone largely unchanged for over two centuries. Compare MerriamWebster Dictionary (2016) (defining “corruption” as “dishonest or illegal behavior especially by powerful people (such as government officials or police officers)”); with Samuel Johnson, A Dictionary of the English Language (H.J. Todd ed. 1818) (defining corruption as, inter alia, “wickedness; perversion of principles; loss of integrity”); Noah Webster, An American Dictionary of the English Language (1828) (an unabridged dictionary) (defining corruption as, inter alia, “[d]epravity; wickedness; perversion or deterioration of moral principles; loss of purity or integrity”).8
8.  This Court has also expressed concern about corruption in the context of its campaign finance jurisprudence, and has, at times, supported a broad definition of corruption in this context. See, e.g., McConnell v. FEC, 540 U.S. 93, 113 (2003) (“The prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits.”); Buckley v. Valeo, 424 U.S. 1, 67 (1976) (upholding limitations on contributions and disclosure requirements because they served the governmental interests of limiting “corruption” and “the appearance of corruption”). This Court has held that “[j]ust as

15
C. In Drafting The Constitution, The Framers Were Concerned With Preventing Corruption
This broad definition of corruption is also firmly rooted in the Constitution’s history. Although the specific issue of partisan gerrymandering was not a concern of the Framers, the debates during the Constitutional Convention, as well as statements made around the time of the Constitution’s drafting, lend considerable support to the notion that the Framers were focused on preventing and weeding out corruption in the form of abuses of political power analogous to extreme partisan gerrymandering. See Debates in the Federal Convention of 1787 as reported by James Madison, Documents Illustrative of the Formation of the Union of the American States H.R. Doc. No. 398, at 288 (Aug. 14, 1787) (“corruption & mutability of the Legislative Councils of the States” is what “led to the appointment of [the] Convention” in the first instance.); cf. Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 353 (2009) (the Framers attempted to build “a bulwark against corruption” in the structure of the Constitution). Well aware that “because men are not always virtuous, structures must be enacted in order to discourage self-serving behavior[,]” Federalists and antiFederalists alike concerned themselves with inoculating the new republic against the structural threats of political corruption. See Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuffbox to Citizens United (hereinafter “Corruption in America”), at 46 (2014).
troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.” McConnell, 540 U.S. at 153.

16
As Professor Zephyr Teachout has observed, the Framers thought of “corruption” in reference to “situations in which a public officer or set of public officers were systematically using public resources for their own enrichment or advancement.” Teachout, Corruption in America at 48. The Framers understood corruption as occurring when government officials behaved in a selfserving way to benefit themselves and their friends to the detriment of the public good. See Federalist No. 10, at 50-51 (James Madison); Yasmin Dawood, The Antidomination Model and the Judicial Oversight of Democracy, 96 Geo. L.J. 1411, 1437 (2008). For the Framers, corruption enabled the government to manipulate factions, protect itself from the electorate, and undermine the Constitution. Id. at 1437; see Robert J. Morgan, Madison’s Theory of Representation in the Tenth Federalist, 36 J. Pol. 852, 868 (1974). This is precisely the evil this Court has warned against in its partisan gerrymandering jurisprudence. See League of United Latin Am. Citizens, 548 U.S. at 456 (partisan gerrymandering “evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good”).
The Framers certainly considered corruption—in the broad sense of the word—to be one of the greatest threats to America’s fledgling government. Indeed, as one historian has remarked, the Framers were “perpetually threatened” by corruption. G.A. Popock, The Machiavellian Moment: Florentine Political Thought and The Atlantic Republican Tradition 507 (1975); see also Notes of the Secret Debates of the Federal Convention of 1787, Taken by the Late Hon. Robert Yates, Chief Justice of the State of New York, and One of the Delegates from That State to the Said Convention, H.R. Doc. No. 398 at 392 (June 23,

17
1787) (noting George Mason’s remark that “if we do not provide against corruption, our government will soon be at an end”). This obsession with, and focus on, corruption is apparent from the results of Professor Lawrence Lessig’s comprehensive survey of the 325 uses of variants of “corruption” in constitutional debates: variants of the term “corrupt” were used 325 times in founding-era documents related to the Constitutional Convention, only five of which referred explicitly to quid pro quo bribery. See Brief of Amicus Curiae of Professor Lawrence Lessig in Support of Appellee at Appendix 1a, McCutcheon v. Fed. Election Comm’n, No. 12-536, 2013 WL 3874388 (2013).
Specifically, the Framers were concerned that corruption would permeate the electoral process. John Adams warned that “[c]orruption in elections is the greatest enemy of freedom.” John Adams, A Defense of the Constitutions of Government of the United States of America, 1787-1788. For example, in advocating against short terms for members of the House, Hugh Williamson stated that “[i]f the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted.” Debates in the Federal Convention of 1787 as reported by James Madison, Documents Illustrative of the Formation of the Union of the American States, H.R. Doc. No. 398, at 59 (July 19, 1787); but see Federalist No. 41 (James Madison) (arguing the inverse by citing the seven year terms in the British House of Commons lead to a system “where the electors [were] so corrupted by the representatives, and the representatives so corrupted by the Crown”).
The Framers also voiced particular concern that private interests could trample on public interests in

18
the Legislative Branch—exactly the intended effect of partisan gerrymandering. Pierce Butler warned of the British Parliament that “a man takes a seat in parliament to get an office for himself or friends, or both; and this is the great source from which flows its great venality and corruption.” Notes of the Secret Debates of the Federal Convention of 1787, Taken by the Late Hon. Robert Yates, Chief Justice of the State of New York, and One of the Delegates from That State to the Said Convention, H.R. Doc. No. 398 at 379. And, in the words of Alexander Hamilton, the very structure of divided legislative power was designed specifically to prevent corruption:
Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order.
See Federalist No. 63 (Alexander Hamilton).

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D. The Text Of The Constitution Restricts Corruption In Government
As the above emphasizes, anti-corruption concerns— particularly with respect to those individuals elected to positions of power in the government—were a core focus of the Framers in drafting the Constitution. And as set forth below, these concerns resulted in distinct constitutional restrictions (and later, amendments) designed to combat corruption and limit governmental abuses of power. These constitutional restrictions provide additional support for this Court to uphold the Framers’ intent by curtailing the corrupt practice of extreme or excessive partisan gerrymandering.
1. The Elections Clause
The Constitution’s Elections Clause provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. . . . “ U.S. Const. art. I, § 4. A partisan gerrymander serves none of the historic functions of the Elections Clause, and instead attempts to do what this Court has expressly recognized as unconstitutional by dictating electoral outcomes and evading important constitutional restraints. Partisan gerrymandering does not (and cannot) fall within the proper scope of the states’ delegated Elections Clause powers.
The very first act of Congress under the Elections Clause was to stamp out corrupt electoral schemes that

20
allowed the currently-dominant political party to stack the House of Representatives with members of its party. See The Ku Klux Cases, 110 U.S. 651, 660–61 (1884) (in 1842, Congress mandated the use of House electoral districts to eliminate the use of “general ticket” electoral systems because they “gave an undue preponderance of power to the political party which had a majority of votes in the state,” and “worked injustice” on the electoral process).9 In The Ku Klux Cases, the Court reemphasized Congress’ power under the Elections Clause to combat corruption in congressional elections, and emphatically stated that corruption was one of the two greatest and most pervasive threats to our electoral system. Id. at 657–58 (“[A] government whose essential character is republican . . . must have the power to protect the elections on which its existence depends, from violence and corruption. If it has not this power, it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.”).
The Elections Clause is recognized by this Court as a source of congressional power to combat corruption. See, e.g., Newberry v. United States, 256 U.S. 232, 285, 288, 290 (1921) (Pintey, J., concurring) (the Elections Clause empowers Congress to regulate the time, place, and manner of election primaries to prevent “fraud, bribery, and corruption” and thus “safeguard the very foundation of the citadel”); United States v. Classic, 313 U.S. 299, 329 (1941) (Douglas, J., dissenting) (“any attempt to defile [a Congressional election] cannot be
9.  See also B. A. Hinsdale, American Government, National and State 195 (1895) (describing the use of “general ticket” and other electoral systems, and Congress’ elimination of it).

21
viewed with equanimity”; acts that “corrupt the process of Congressional elections[] transcend mere local concern and extend a contaminating influence into the national domain.”).
This Court’s analysis of the Elections Clause in modern times, however, has shifted from Congress’ power to the power of the state legislatures. As contemporary jurisprudence makes clear, the Elections Clause is meant to limit state legislatures’ influence over the House. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 809 (1995) (“Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy.”) (quoting Alexander Hamilton). Indeed, the power to redraw congressional districts is derived directly and exclusively from the Elections Clause. Vieth, 541 U.S. at 275-76 (Scalia, J.) (Congress has plenary power over Congressional redistricting under the Election Clause); Cook v. Gralike, 531 U.S. 510, 522–23 (2001) (Stevens, J.) (“[T]he States may regulate the incidents of [Congressional] elections . . . only within the exclusive delegation of power under the Elections Clause.”). Thus, if a redistricting practice is incompatible with the Elections Clause, it is per se unconstitutional. See id.
This analysis of the state legislature’s power under the Elections Clause, however, retains its anti-corruption roots and hews closely to the original congressional mandate of preventing corruption in the electoral system and abuses of political power in the electoral process. In that spirit, this Court has repeatedly interpreted the state legislatures’ delegated power to regulate the “manner” of

22
congressional elections as strictly limited to “evenhanded restrictions that protect the integrity and reliability of the electoral process,” and that “prevent [the] distortion of the electoral process.” See Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983); U.S. Term Limits, 514 U.S. at 834–35 (collecting cases); Smiley v. Holm, 285 U.S. 355, 366 (1932) (the Elections Clause empowers states to “prevent[ ] corrupt [electoral] practices”).10
In short, “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” U.S. Term Limits, 514 U.S. at 833–34 (emphasis added). Yet this is exactly what partisan gerrymandering does, see Vieth, 541 U.S. at 317 (partisan gerrymandering is “the business of rigging elections”), and exactly what mandatory districting was designed to prevent. See The Ku Klux Cases, 110 U.S. at 660–61.
10.  The prevention of bribery and corruption underlies the Elections Clause. See, e.g., Newberry, 256 U.S. at 285, 288 (noting that the Expulsion Clause—which allows each chamber of Congress to “expel a Member” upon a two-thirds vote—”is not an adequate check upon [Congressional] bribery, corruption, and other irregularities in the primary elections,” and that a core principle of the Elections Clause is the prevention of this “fraud, bribery, and corruption”). Importantly, the Court recognizes both bribery and corruption individually, confirming that “corruption” under the Elections Clause is broader than quid pro quo bribery. See id.

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2. The Seventeenth Amendment
Similarly, the Seventeenth Amendment, which establishes the election of Senators by the people, was explicitly premised on the fundamental distrust of corrupt state legislatures and political parties. Before the Seventeenth Amendment was ratified in 1913, all U.S. Senators were elected by state legislatures rather than direct popular vote. This system, however, led to such pervasive and entrenched corruption that the country was forced to wrest that power from the twin grasps of state legislatures and political parties via a constitutional amendment. See, e.g., Laura E. Little, An Excursion into the Uncharted Waters of the Seventeenth Amendment, 64 Temp. L. Rev. 629, 640–41 (1991) (“The legislative history of the Seventeenth Amendment is replete with discussions of corruption, bribery, and inadequate representation. . . . [and] that these evils . . . were fostered by—and in fact were the direct product of—the process of selecting Senators by state legislatures”; “the Seventeenth Amendment was designed in part to wrest control of senatorial selection from powerful groups within political parties”; “direct election was to eradicate these evils, to act as a democratic vaccine to immunize the Senate from corrupt and ineffective representation”).
The Seventeenth Amendment thus headed-off the Senate’s electoral corruption problem by removing the ability of state legislatures and political parties to conspire to distort—and effectively control—the electoral process. Yet a functionally identical corruption problem still exists in elections for the House, as state legislatures and political parties continue to conspire to corrupt and distort the electoral process in decade-long increments through

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partisan gerrymandering. Only by removing extreme and excessive partisan gerrymandering from their electoral arsenals can we similarly address the pervasive corruptions that continue to plague House elections.
3. The Impeachment, Good Behavior, And Compensation Clauses
The Constitution also guards against corruption in the form of abuses of power in both the Executive and Judicial branches. First, the Impeachment Clause provides that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. art. II, § 4. The inclusion of the word “[b]ribery” makes clear that the Framers were specifically concerned with corruption. But a broader concept of corruption was the Framers’ animating concern: corruption was the first crime raised by the Framers as an impeachable offense. Charles Doyle, Cong. Research Serv. 98-894 A, Impeachment Grounds: Part 2: Selected Constitutional Convention Materials 2-4 (1998) (“corruption & some few other offenses . . . ought to be impeachable”). This was reflected in the first draft of the Impeachment Clause, which stated that the President “shall be removed from office on impeachment of . . . treason, bribery, or corruption.” Id. (emphasis added).
While “corruption” was eventually replaced by “other high Crimes and Misdemeanors,” its focus in the Framers’ debates, and inclusion in the Impeachment Clause’s first draft, make clear that the Framers considered corruption to be different from—and broader in scope—than bribery. Other courts interpreting the Impeachment Clause have recognized this fact as well. See Kinsella v. Jaekle,

25
475 A.2d 243, 251-53 (Conn. 1984) (detailing history of Impeachment Clause and finding it based on a nearly identical seventeenth century “system chosen by [English] Parliament to remove corrupt or oppressive ministers”).11
Courts have also interpreted the phrase “other high Crimes and Misdemeanors” as necessarily incorporating corruption broader than bribery—noting that the word “other” in the phrase “other high Crimes and Misdemeanors” denotes “criminal conduct which demonstrates the same type of moral corruption and dishonesty inherent in the specified offenses” such as bribery. Perez v. State, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (emphasis added). This makes sense, as bribery is a subset of corruption.
One of the few impeachments of a sitting federal judge under the Impeachments Clause confirms that not only corruption, but the mere appearance of corruption, is necessarily subsumed into the “other High Crimes and Misdemeanors” language of the Impeachment Clause. Judge Halsted Lockwood Ritter, District Court Judge for the Southern District of Florida, was impeached and removed from office for the high crime or misdemeanor of “general misbehavior and conduct that brought his court into scandal and disrepute.” Deschler-Brown Precedents, vol. 3, ch. 14, sec. 18 at 2244; id. at 2229-32. Partisan gerrymandering is easily subsumed within these broader concepts of corruption as well: it is morally corrupt and dishonest for state legislatures to purposefully dilute certain constituents’ votes because of their political
11.  See also supra, fn. 10 (discussing this Court’s recognition of the same in Newberry, 256 U.S. at 285, 288).

26
affiliation in an attempt to rig elections against them; and such practices bring scandal and disrepute upon Congress, the state legislatures, and both political parties.
Second, the Constitution also safeguards against corruption of the judiciary. The Good Behavior Clause notes that Article III “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” U.S. Const. art. III, § 1. Interwoven with the Good Behavior Clause is the Compensation Clause, which provides that Article III judges “shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Id. These two clauses combine to insulate Article III judges from corruption by the Executive and Legislative branches, while still providing for the impeachment and removal of corrupt judges. Notably, the Good Behavior Clause also protects against corruption by excising corrupt judges from the judiciary after impeachment. See, e.g., Jonathan Turley, Good Behavior Clause, in The Heritage Guide to the Constitution (Aug. 22, 2017), http://w w w.heritage.org/constitution/#!/ articles/3/essays/104/good-behavior-clause (“the Good Behavior Clause . . . reminds judges that life tenure is not a license for the wanton or the corrupt”).
A core concern of the Framers when drafting Article III was to ensure judicial independence. Gonzalez v. United States, 553 U.S. 242, 268 (2008) (Thomas, J., dissenting) (“The Framers viewed independent judges, no less than the right to a jury of one’s peers, as indispensable to a fair trial. For that reason, the Constitution affords Article III judges the structural protections of life tenure and salary protection.”) (internal citation omitted). “[T]he Compensation Clause, along with the Clause

27
securing federal judges appointments ‘during good Behavior,’ . . . helps to guarantee what Alexander Hamilton called the ‘complete independence of the courts of justice.’” United States v. Hatter, 532 U.S. 557, 567 (2001) (Breyer, J.) (quoting Federalist No. 78 at 466 (Alexander Hamilton)).
The Compensation Clause also provides an important limitation on the ability of the Legislature to corrupt judicial independence by threatening a judge’s salary. Id. at 568 (“[The] power over a man’s subsistence amounts to a power over his will. For this reason[,] [n]ext to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.”) (quoting Federalist No. 79 at 472 (Alexander Hamilton)). These twin protections also serve to protect the judiciary from the corrupting influence of the Executive branch. See Mistretta v. United States, 488 U.S. 361, 409–10 (1989) (Blackmun, J.) (“the President’s power to appoint federal judges to [and remove said judges from] the [United States Sentencing] Commission” cannot “corrupt the integrity of the Judiciary” because any judge the President attempts to corrupt “would continue, absent impeachment, to enjoy tenure ‘during good Behaviour’ and a full judicial salary.”). In short, preventing corruption, and the appearance of corruption, from public offices— regardless of its source or form—was and is a critical function of the Constitution. Partisan gerrymandering has breached the anti-corruption bulwarks of the Constitution, and it now falls to the judiciary to seal that breach.
* * *
Without a doubt, broad anti-corruption principles are core elements of the Constitution and its history, as

28

overlapping constitutional provisions were designed to serve as safeguards against political corruption in the form of abuses of power. These principles translate into a strong interest in eliminating corruption in politics and government, including in cases of extreme or excessive partisan gerrymandering.

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment below.

Scott Greytak Represent.Us P.O. Box 60008 Florence, Massachusetts
01062 (413) 333-5650

Respectfully submitted,
Atara Miller Counsel of Record
Daniel M. Perry Alison Bonelli Conor Colasurdo Taryn Gallup Alexandra Paslawsky Erik Wilson Milbank, Tweed, Hadley
& McCloy LLP 28 Liberty Street New York, New York 10005 (212) 530-5000 amiller@milbank.com

 
 No. 16-1161

IN THE
Supreme Court of the United States
———— BEVERLY R. GILL, ET AL.,
Appellants, v.
WILLIAM WHITFORD, ET AL., Appellees.
———— On Appeal from the United States District Court
for the Western District of Wisconsin ————
BRIEF FOR CONSTITUTIONAL LAW PROFESSORS AS AMICI CURIAE IN SUPPORT OF APPELLEES ————

DANIEL H. BROMBERG QUINN EMANUEL URQUHART
& SULLIVAN, LLP 555 Twin Dolphin Dr., 5th Fl. Redwood Shores, CA 94065 (650) 801-5008

KATHLEEN M. SULLIVAN Counsel of Record
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Ave., 22nd Fl. New York, NY 10010 (212) 849-7000 kathleensullivan@
quinnemanuel.com

Counsel for Amici Curiae

September 5, 2017

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ..............................1
INTRODUCTION AND SUMMARY..........................2
ARGUMENT ...............................................................4
I. TREATING JUDICIAL MANAGEABILITY AS A FREESTANDING JUSTIFICATION FOR DEEMING AN ISSUE A NONJUSTICIABLE POLITICAL QUESTION WOULD DEPART FROM OUR CONSTITUTIONAL HISTORY AND TRADITION ............................................4
A. A Majority Of The Court Has Never Treated Judicial Manageability As A FreeStanding Justification For Nonjusticiability ....................................4
B. Treating Judicial Manageability As A Free-Standing Justification For Nonjusticiability Would Cast Doubt On Baker v. Carr And Other Decisions Of The Court Rejecting The Need For Comprehensive Theories Or Rigid Rules...........................................10

ii
II. TREATING JUDICIAL MANAGEABILITY AS A FREESTANDING JUSTIFICATION FOR DEEMING AN ISSUE A NONJUSTICIABLE POLITICAL QUESTION WOULD HAVE HARMFUL PRACTICAL CONSEQUENCES .........................................16
CONCLUSION ..........................................................21
APPENDIX A – List of Amici Curiae ......................1a

iii TABLE OF AUTHORITIES

Page(s)

Cases
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) ............................................. 15
Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................. 14
Arizona State Legislature v. Arizona Indep. Redistriciting Comm’n, 135 S. Ct. 2652 (2015) .......................................... 18
Baker v. Carr, 369 U.S. 186 (1962) .......................................passim
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) .............................................. 13
Brown v. Plata, 563 U.S. 493 (2011) .............................................. 13
Buckley v. Valeo, 424 U.S. 1 (1976) .................................................. 14
Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009) ........................................ 15, 16
City of Boerne v. Flores, 521 U.S. 507 (1997) .............................................. 13
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).............................. 20
Coleman v. Miller, 307 U.S. 433 (1939) ........................................ 4, 7, 8
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)...................... 19

iv
TABLE OF AUTHORITIES—Continued
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) .............................................. 13
Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) .............................................. 14
Davis v. Bandemer, 478 U.S. 109 (1986) ................................................ 5
District of Columbia v. Heller, 554 U.S. 570 (2008) .............................................. 12
Doe v. Braden, 57 U.S. (16 How.) 635 (1854) ................................. 6
Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) ........................... 6, 7, 18
Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838) .................................. 7
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ........................................ 12, 13
Gilligan v. Morgan, 413 U.S. 1 (1973) .............................................. 9, 18
Illinois v. Gates, 462 U.S. 213 (1983) .............................................. 14
In re Kan. Indians, 72 U.S. (5 Wall.) 737 (1867) ................................... 7
INS v. Chadha, 462 U.S. 919 (1983) ................................................ 8
Jones v. United States, 137 U.S. 202 (1890) ................................................ 6

v
TABLE OF AUTHORITIES—Continued
Katz v. United States, 389 U.S. 347 (1967 ............................................... 17
Kennett v. Chambers, 55 U.S. 38 (1852) .................................................... 6
Kyllo v. United States, 533 U.S. 27 (2001) ................................................ 17
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ................................................ 5
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014)............ 19
Luther v. Borden, 48 U.S. (7 How.) 1 (1849) ....................................... 7
Marbury v. Madison, 5 U.S.(1 Cranch) 137 (1803) .............................. 5, 6
Martin v. Mott, 25 U.S.(12 Wheat.) 19 (1827)............................. 6, 7
McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434 (2014) ......................................... 14
Nixon v. United States, 506 U.S. 224 (1993) ...................................... 8, 9, 18
Oetjen v. Central Leather Co., 246 U.S. 297 (1918) ................................................ 6
Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) ................................................ 7
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) .............................................. 13

vi TABLE OF AUTHORITIES—Continued
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ............................ 13, 14
Powell v. McCormack, 395 U.S. 486 (1969) ............................................ 8, 9
Randall v. Sorrell, 548 U.S. 230 (2006) ........................................ 14, 15
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013) ............................................ 19
Terlinden v. Ames, 184 U.S. 270 (1902) ................................................ 6
United States v. Lopez, 514 U.S. 549 (1995) .............................................. 13
United States v. Nixon, 418 U.S. 683 (1974) ................................................ 9
United States Dep’t of Commerce v. Montana, 503 U.S. 442 (1992) ................................................ 8
Vieth v. Jubelirer, 541 U.S. 267 (2004) .......................................passim
Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839) ......................... 6, 7, 18
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) .......................................... 14
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012) ................................................ 8
Other Authorities
3 William Blackstone, COMMENTARIES *23 .............. 5

vii
TABLE OF AUTHORITIES—Continued
Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237 (2002).......... 5
Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. REV. 1908 (2015) ................................................... 5
Louis Henkin, Is There A “Political Question” Doctrine?, 85 YALE L.J. 597 (1976) ........................ 5
Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978)............................... 18

1

INTERESTS OF AMICI CURIAE1

Amici are professors of law who teach, research, and write about constitutional law and are interested in its history and development:

Susan Low Bloch Joseph Blocher Rebecca L. Brown Michael C. Dorf Luis Fuentes-Rohwer Michael J. Gerhardt Jamal Greene Aziz Huq Jenny S. Martinez

Martha Minow Alan B. Morrison Kermit Roosevelt Bertrall Ross Jane S. Schacter Carolyn Shapiro Geoffrey R. Stone David A. Strauss Laurence H. Tribe

A complete list of amici’s titles and university affiliations is attached as Appendix A.

Amici respectfully submit this brief to provide the Court with the historical and constitutional background of the judicial manageability requirement as used in prior decisions on justiciability. In particular, amici wish to provide historical context showing why the Court should not, as defendants here urge, adopt and extend the plurality opinion in Vieth v. Jubelirer, 541 U.S. 267 (2004). Defendants contend that judicial manageability is an independent, freestanding factor that, even in the absence of the commitment of an issue to the discretion of a political branch, justifies holding fundamental constitutional

1 Counsel for all parties have consented to this filing. No counsel for any party authored any part of this brief, and no person other than the named amici and their counsel has made any monetary contribution to the preparation and submission of this brief.

2
issues nonjusticiable as political questions. This view of judicial manageability is inconsistent with historical treatment of the factor and undermines the Court’s essential role of interpreting the Constitution and protecting constitutional rights.
INTRODUCTION AND SUMMARY
Defendants urge the Court to hold in this case that the political question doctrine categorically bars political gerrymandering claims. But rather than rest their argument on a demonstrable commitment of such claims to the political branches, defendants rely solely on the supposed absence of judicially discernible and manageable standards for administering such claims. See Appellants’ Br. 34–41. That is not an approach a majority of this Court has ever adopted, and it should not do so here. As plaintiffs explain, the test employed by the district court in this case is both judicially discernible and manageable. Appellees’ Br. 32–55. But even more fundamentally, judicial manageability is not properly treated as a free-standing ground for deeming political gerrymandering claims nonjusticiable in the first place.
Traditionally, this Court’s political question jurisprudence has focused primarily on whether the question at issue is committed to the unreviewable discretion of one of the political branches. This Court has considered judicial manageability and other prudential considerations as factors that may be useful in determining whether there is such a commitment. In addition, the absence of judicially discernible and manageable standards may be a reason to rule that no constitutional violation has occurred. But a majority of this Court has never held that judicial manageability alone, without commitment of an issue

3
to a political branch, may justify holding a constitutional issue nonjusticiable. Adopting the position defendants urge here would thus be a gross departure from our constitutional history and tradition.
Adopting that position would also cast doubt on Baker v. Carr, 369 U.S. 186 (1962), and numerous other prior decisions. Defendants contend that partisan gerrymandering claims are nonjusticiable because the Court lacks historically based, comprehensive and neutral principles for redistricting, or any limited and precise test for identifying political gerrymandering. This Court, however, rejected just such an argument in Baker itself. Compare id. at 237 with id. at 299–301 (Frankfurter, J., dissenting) (arguing that a one-person-one-vote claim is nonjusticiable for lack of a comprehensive background theory of representation). Moreover, the Court routinely addresses issues without first elaborating a comprehensive background theory and uses broad, open-ended standards rather than precise and formalistic tests.
Finally, treating judicial manageability as a freestanding justification for applying the political question doctrine would have harmful practical consequences. As the concurrence in Vieth recognized, doing so would short-circuit the judicial process and foreclose courts from benefitting from broader experience or new developments that may enable them to fashion manageable standards. Expanding the use of judicial manageability as a threshold test would also threaten to leave constitutional violations without remedies, which in turn would encourage additional violations. And treating judicial manageability as a free-standing justification to decline review would give

4
courts broad, unguided discretion to selectively abdicate their duty to remedy constitutional violations—discretion that this Court repeatedly has declined to countenance.
The Court should affirm the decision below.
ARGUMENT
I. TREATING JUDICIAL MANAGEABILITY AS A FREE-STANDING JUSTIFICATION FOR DEEMING AN ISSUE A NONJUSTICIABLE POLITICAL QUESTION WOULD DEPART FROM OUR CONSTITUTIONAL HISTORY AND TRADITION
A. A Majority Of The Court Has Never Treated Judicial Manageability As A Free-Standing Justification For Nonjusticiability
Judicial manageability is one of several factors considered in applying the political question doctrine. See, e.g., Baker, 369 U.S. at 217. It has been described as a consideration of “importance,” Vieth, 541 U.S. at 278 (plurality opinion), and even as one of the “dominant considerations” in applying the doctrine, Coleman v. Miller, 307 U.S. 433, 454–55 (1939) (plurality opinion). But unlike standing, ripeness or mootness, judicial manageability has never been treated by a majority of this Court as an independent, free-standing justification for ruling an issue

5

nonjusticiable.2

To the contrary, judicial

manageability has been treated at most as a

supporting consideration in the primary inquiry in

political question analysis: whether an issue has been

committed to the unreviewable discretion of the

political branches.

The origin of the political question doctrine is commonly traced to Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See, e.g., Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 239 (2002); Louis Henkin, Is There A “Political Question” Doctrine?, 85 YALE L.J. 597, 598 n.4 (1976). See generally Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. REV. 1908, 1910 & n.4 (2015).

Marbury recognized that, “‘where there is a legal right, there is also a legal remedy … when ever that right is invaded,’” 5 U.S. at 163 (quoting 3 William Blackstone, COMMENTARIES *23), and that courts may, where vested with jurisdiction, properly review the constitutionality of laws. Id. at 177 (“It is emphatically the province and duty of the judicial department to say what the law is.”). At the same time, however, Marbury recognized that, where “the president is invested with certain important political

2 The views of various Justices who have considered such an approach have never garnered a majority of the Court. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511–12 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part); Vieth, 541 U.S. at 277–306 (plurality opinion); Davis v. Bandemer, 478 U.S. 109, 147– 61 (1986) (O’Connor, J., concurring in the judgment).

6
powers, in the exercise of which he is to use his own discretion,” such as the selection of subordinate officers, the President’s actions are “only politically examinable.” Id. at 165. Thus, “[q]uestions in their nature political or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Id. at 170.
Subsequent cases held that certain questions were nonjusticiable political questions because they were committed unreviewably to the discretion of the political branches by the text of the Constitution, its structure, or historical practice. For example, in Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), the Court held that a plaintiff challenging fines for failing to report for military duty could not dispute the President’s decision to call forth the militia because the statute authorizing the President to do so entrusted him with exclusive discretion over the decision. Id. at 28–32. In other cases, the Court held that the executive branch is entrusted with unreviewable discretion in determining to which nation an island belongs, see, e.g., Jones v. United States, 137 U.S. 202, 221 (1890); Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839), identifying the legitimate government of foreign states, see, e.g., Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Kennett v. Chambers, 55 U.S. 38, 50–51 (1852), and ascertaining whether a treaty continues in force or has been extended, see, e.g., Terlinden v. Ames, 184 U.S. 270, 288 (1902); Doe v. Braden, 57 U.S. (16 How.) 635 657 (1854).
The Court has similarly held some questions committed to the unreviewable discretion of Congress. These questions include recognition of international boundaries, see, e.g., Foster v. Neilson, 27 U.S. (2 Pet.)

7
253, 309 (1829); Garcia v. Lee, 37 U.S. (12 Pet.) 511, 517–18 (1838), recognition of Indian tribes, see, e.g., In re Kan. Indians, 72 U.S. (5 Wall.) 737, 755–57 (1867), and recognition of the lawful government of individual States for purposes of the Guaranty Clause, see, e.g., Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849).
In many of these decisions, the Court supported the conclusion that an issue was committed unreviewably to the discretion of the political branches with practical considerations such as the need for “prompt and unhesitating obedience” to orders calling forth the militia, see, e.g., Martin, 25 U.S. (12 Wheat.) at 30, or the need for uniformity in dealing with foreign countries, see, e.g., Williams , 38 U.S. (13 Pet.) at 420. In one case, Luther v. Borden, the Court noted the absence of any reliable manner in which courts can determine the lawful government of a State in the midst of civil unrest such as the Doerr Rebellion, 48 U.S. (7 How.) at 41–42, in addition to the textual commitment of issues concerning the legitimacy of state governments to Congress, id. at 42–43. Notably, however, when the Court next considered a question concerning a state government’s conformity with the Guaranty Clause and relied on Luther v. Borden, it did not mention this judicial manageability consideration, instead noting only the decision’s ruling that the issue was textually committed to Congress. See Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 145–48 (1912).
To be sure, some later political question decisions mention judicial manageability as a factor in considering whether an issue has been committed to another branch, but none treats judicial manageability as a free-standing justification for nonjusticiability. For example, in Coleman v. Miller, the Court held

8
nonjusticiable the determination of time limits on state ratification of constitutional amendments under Article V. 307 U.S. at 456. While the Court described “the lack of satisfactory criteria for a judicial determination,” along with the need for finality, as “dominant considerations,” id. at 454–55, it ruled principally that the issue rested exclusively with Congress, id. at 456. While a majority of the Court quoted this language two decades later in Baker v. Carr, 369 U.S. at 210, that decision rejected any political question argument and permitted equal protection challenges to legislative districting, id. at 208–37.
More recent decisions similarly take cognizance of judicial manageability but do not hold that it alone renders an issue nonjusticiable. Some decisions mentioning judicial manageability, for example, treat it as the only factor to be considered in political question analysis in addition to commitment to the political branches. See, e.g., Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (“[A] controversy involves a political question where there is a textually demonstrable commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.”) (quotation marks omitted); id. at 203-04 (2012); Nixon v. United States, 506 U.S. 224, 228 (1993) (same).
But none of the decisions mentioning judicial manageability find it a free-standing justification for nonjusticiability. Most simply reject political question challenges. See Zivotofsky, 566 U.S. at 196–201; United States Dep’t of Commerce v. Montana, 503 U.S. 442, 458-59 (1992); INS v. Chadha, 462 U.S. 919, 941– 43 (1983); Powell v. McCormack, 395 U.S. 486, 549

9
(1969). And even where the Court has held an issue nonjusticiable as a political question, the Court has relied primarily upon commitment of that issue to the political branches. See Nixon v. United States, 506 U.S. at 229–36 (ruling impeachment trial procedures textually committed to the unreviewable discretion of the Senate); Gilligan v. Morgan, 413 U.S. 1, 11 (1973) (ruling National Guard training “entrusted expressly to the coordinate branches of government”). Thus, the Court has consistently stated that the primary inquiry under the political question doctrine is “‘whether a matter has in any measure been committed by the Constitution to another branch.’” United States v. Nixon, 418 U.S. 683, 704 (1974) (quoting Baker, 369 U.S. at 211); accord Powell, 395 U.S. at 521, and judicial manageability is at most a subordinate part of that inquiry, see Nixon v. United States, 506 U.S. at 228–29.
For all these reasons, defendants’ proposal that political gerrymandering is a nonjusticiable political question based solely on judicial manageability, absent any commitment of the matter to the political branches, is historically anomalous and contrary to our constitutional tradition. Just as other issues concerning redistricting have long been held justiciable and not committed to the sole discretion of Congress or the States, see, e.g., Baker, 369 U.S. at 237, so should the issue of political gerrymandering be deemed justiciable. As the concurring opinion in Vieth noted, the Court’s very willingness to “enter the political thicket of the apportionment process with respect to one-person, one-vote claims” in Baker v. Carr and its progeny “makes it particularly difficult to justify a categorical refusal to entertain claims against this

10
other type of gerrymandering.” 541 U.S. at 310 (Kennedy, J., concurring in the judgment).
B. Treating Judicial Manageability As A Free-Standing Justification For Nonjusticiability Would Cast Doubt On Baker v. Carr And Other Decisions Of The Court Rejecting The Need For Comprehensive Theories Or Rigid Rules
Treating judicial manageability as a free-standing justification for applying the political question doctrine would further depart from our constitutional history and tradition by casting doubt upon Baker v. Carr and other precedents. Defendants urge the Court to find nonjusticiability here because there are no “historically-derived ‘comprehensive and neutral principles’ for redistricting.” Appellants’ Br. 37 (quoting Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment)).3 But this Court explicitly rejected that very proposition in Baker v. Carr.
3 Defendants misstate the Vieth concurrence, which did not suggest that the political question doctrine demands a comprehensive background theory as a precondition to justiciability. Rather, consistent with Baker v. Carr, the concurrence described the lack of comprehensive and neutral principles for drawing electoral boundaries as one of the “obstacles” to political gerrymandering claims. 541 U.S. at 306–07 (Kennedy, J., concurring in the judgment). Indeed, the concurrence explicitly recognized that, where important rights are involved, the “impossibility of full analytical satisfaction is reason to err on the side of caution.” Id. at 311.

11
In dissent in Baker v. Carr, Justice Frankfurter argued that the claims of the plaintiffs there that they had been denied a proportionate share of political influence were not justiciable because courts “do not have accepted legal standards or criteria or even reliable analogies to draw upon” for resolving such claims. 369 U.S. at 268 (Frankfurter, J., dissenting). Underlying these claims, Justice Frankfurter reasoned, was a theoretical question about the “base of representation in an acceptably republican state.” Id. at 301. He wrote:
One cannot speak of ‘debasement’ or ‘dilution’ of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union.
Id. at 300. Finding no “universally accepted” answer to this question in U.S. or British history, Justice Frankfurter’s dissent concluded that the plaintiffs’ apportionment claims were nonjusticiable political questions. Id. at 301–24.
A majority of the Court disagreed, holding that “the complaint’s allegations of denial of equal protection present a justiciable constitutional cause of action.” Id. at 237. As the majority identified no comprehensive and neutral background theory of representation, defendants’ argument that the political question doctrine demands such a theory cannot be reconciled with Baker v. Carr. To the contrary,

12
defendants simply ignore the decision, thereby implicitly conceding that their argument contradicts it.
Moreover, there is no basis for imposing a threshold requirement of “historically-derived, comprehensive and neutral principles” before Article III jurisdiction may be exercised. The absence of such principles may be an “obstacle[],” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment), to finding a constitutional violation. But it does not bar the Court from even considering whether there has been a constitutional violation. To the contrary, the Court adjudicates constitutional challenges where admittedly there was no comprehensive background theory. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (finding no need for “an exhaustive historical analysis today of the full scope of the Second Amendment”).
Once again picking up on language in the Vieth concurrence, defendants also argue that, if political gerrymandering claims are permitted, courts may be forced to assume “‘political, not legal, responsibility for a process that often produces ill will and distrust.’” Appellants’ Br. 39 (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment)). While that is true, it is equally true of apportionment claims, which often force courts “to draw or approve election district lines.” Vieth, 541 U.S. at 310 (Kennedy, J., concurring).
Finally, defendants argue (Appellants’ Br. 40) that the political question doctrine bars political gerrymandering claims because plaintiffs have not proposed a “limited and precise test” for such claims. The absence of judicially discernible and manageable standards may affect the determination whether there has been a constitutional violation. See, e.g., Garcia v.

13
San Antonio Metro. Transit Auth., 469 U.S. 528, 537– 47 (1985). But this Court has not shied away from addressing questions, much less foreclosed all future consideration of those questions, simply because they are “not susceptible to the mechanical application of bright and clear lines.” United States v. Lopez, 514 U.S. 549, 579 (1995) (Kennedy, J., concurring); see also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 630 (1989) (O’Connor, J., concurring in part and concurring in the judgment) (“We cannot avoid the obligation to draw lines, often close and difficult lines,” in addressing constitutional questions).
Indeed, the Court often applies broad, open-ended standards in determining whether constitutional violations have occurred. See, e.g., Brown v. Plata, 563 U.S. 493, 538 (2011) (determining constitutionality of prison population levels even though the inquiry is based on “uncertain predictions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various population levels”); Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (noting that the Court has “given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking”); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574–85 (1996) (providing three “guideposts” for determining when punitive damages are so excessive as to violate due process); City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (requiring preventive remedies adopted under the Fourteenth Amendment’s Enforcement Clause to be “congruen[t] and proportion[al]” to the harm to be prevented); Planned Parenthood of Southeastern Pa. v.

14
Casey, 505 U.S. 833, 870–79 (1992) (prohibiting abortion regulations that impose an “undue burden” on a woman’s right to choose) (plurality opinion); see also Illinois v. Gates, 462 U.S. 213, 232 (1983) (“probable cause is a fluid concept … not readily, or even usefully, reduced to a neat set of legal rules”).
This is especially true in election law cases. See, e.g., Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1667 (2015) (entertaining challenge to contribution restrictions enacted to serve an interest in preserving public confidence in the judiciary, even though such a governmental interest “does not easily reduce to precise definition” or “lend itself to proof by documentary record”); McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434, 1451 (2014) (entertaining challenge to aggregate limits on campaign contributions even though the “line between quid pro quo corruption and general influence may seem vague at times”); Crawford v. Marion County Election Bd., 553 U.S. 181, 191 (2008) (entertaining challenge to voter identification law despite absence of “any litmus test for measuring the severity of a burden that a state law imposes”); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (holding filing deadline for independent candidate unconstitutional even in the absence of any “‘litmus-paper test” separating valid from invalid restrictions) (quotation marks omitted).
For example, in Randall v. Sorrell, 548 U.S. 230 (2006), the Court considered the constitutionality of contribution limits imposed by a Vermont election law, determining whether the limits were “‘closely drawn’ to match a ‘sufficiently important interest.’” Id. at 247 (quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam)). The Court acknowledged that it had “no scalpel to probe each possible contribution level” and

15
could not “determine with any degree of exactitude the precise restriction necessary to carry out the statute’s legitimate objectives.” Id. at 248 (quotation mark omitted); see also id. at 265 (“no traditional or wellestablished body of law exists to offer guidance”) (Kennedy, J., concurring in the judgment). Nonetheless, it considered the issue, ruling that Vermont’s contribution limits were “disproportionately severe,” id. at 237, based on various “danger signs,” id. at 249–53, and “factors” indicating, that the contribution limits were “so low” that they posed significant obstacles to candidates in contested elections, id. at 253, 256.
Similarly, in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the Court considered whether due process required a state supreme court justice to recuse himself from a case involving a party who, in addition to making the maximum contribution to the justice’s election campaign, also contributed nearly $2.5 million to an organization supporting the justice and made over $500,000 in independent expenditures on the justice’s behalf. Id. at 873. The Court recognized that “‘what degree or kind of interest is sufficient to disqualify a judge from sitting ‘cannot be defined with precision,’” id. at 879 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986)), and that determining whether a judge is actually biased is “a difficult endeavor, not likely to lend itself to a certain conclusion,” id. at 885; see also id. at 893–98 (Roberts, J., dissenting) (listing several dozen unresolved theoretical issues). Nevertheless, a majority of the Court concluded that due process required the judge to recuse himself because “the probability of actual bias on the part of the judge” was “too high to be

16
constitutionally tolerable.” Id. at 872 (quotation marks omitted).
Measuring the impact of partisan gerrymandering and determining when a party has gone too far in seeking partisan advantage is no more difficult than determining when contribution limits are too low or campaign contributions create too great a risk of bias. There is no historically derived, comprehensive and neutral theory, nor any limited and precise test to use in any of these circumstances. If cases such as Randall and Caperton presented justiciable questions, political gerrymandering cases must be justiciable as well. The Court’s tradition of flexible, open-ended analysis cannot be reconciled with defendants’ rigid requirement of a “limited and precise test” for resolving the claims here.
II. TREATING JUDICIAL MANAGEABILITY AS A FREE-STANDING JUSTIFICATION FOR DEEMING AN ISSUE A NONJUSTICIABLE POLITICAL QUESTION WOULD HAVE HARMFUL PRACTICAL CONSEQUENCES
Expanding the role of judicial manageability in political question analysis and treating it as a freestanding justification for holding claims nonjusticiable would also short-circuit the judicial process, leave constitutional violations unremedied, and indirectly give courts freewheeling discretion to selectively abdicate the responsibility to address constitutional claims—a discretion that this Court repeatedly has declined to grant directly. For these reasons too, amici respectfully urge the Court to reject defendants’ judicial manageability argument.
First, treating judicial manageability as an independent, free-standing justification for finding a

17
question nonjusticiable as a political question would undermine the judicial process. The law frequently develops on an incremental basis as courts, based on experience in individual cases with different aspects of an issue, develop principles, tests, or standards to govern that issue. This process allows courts to deal with and benefit from initially unseen aspects of an issue. See Vieth, 541 U.S. at 312 (Kennedy, J., concurring) (“[I]n another case a standard might emerge that suitably demonstrates how an apportionment’s de facto incorporation of partisan classifications burdens rights to fair and effective representation”). This process also allows courts to adapt to new technologies. See, e.g., Kyllo v. United States, 533 U.S. 27, 31–40 (2001); Katz v. United States, 389 U.S. 347, 353 (1967); see also Vieth, 541 U.S. at 312–13 (“new technologies may produce new methods of analysis that … facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards”).
Treating judicial manageability as a free-standing justification for rendering claims nonjusticiable as political questions would short-circuit this process. The traditional approach allows judges to consider claims even though they cannot know whether they have encountered all aspects of an issue or whether future developments will put courts in a better position to address the issue. Giving courts the power to render issues permanently nonjusticiable based solely on judicial manageability, by contrast, would stop this salutary process before it begins.
Second, treating judicial manageability as a freestanding justification for nonjusticiability would leave constitutional violations unremedied. Sometimes the political question doctrine is properly used to preclude

18
courts from resolving factual questions that the political branches are better suited to deciding, such as where international boundaries are drawn, see, e.g., Foster, 27 U.S. (2 Pet.) at 309, or what country has sovereignty over an island, see, e.g., Williams, 38 U.S. (13 Pet.) at 420. But the doctrine may also be misused to bar consideration of constitutional claims, leaving constitutional violations without judicial remedy. See, e.g., Nixon v. United States, 506 U.S. at 228–36; Gilligan, 431 U.S. at 6–12. See generally Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1224–26 (1978). Indeed, in Vieth itself, it was undisputed that political gerrymandering may violate the Equal Protection Clause,4 but the plurality
4 Vieth, 541 U.S. at 292–93 (plurality opinion) (agreeing that “an excessive injunction of politics [into redistricting] is unlawful”); id. at 307 (Kennedy, J, concurring in the judgment) (“A determination that a gerrymander violates the law must rest on … a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”); id. at 326 (Stevens, J., dissenting) (“the plurality’s opinion … seems to agree that if the State goes ‘too far’ …, it violates the Constitution”); id. at 343 (Souter, J., dissenting) (“[I]f unfairness is sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality.”); id. at 362 (Breyer, J., dissenting) (“[G]errymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause.”); see also Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (“Partisan gerrymanders, this Court has recognized, are incompatible with democratic principles.”) (quotation marks and alterations omitted).

19
declined to reach the merits out of concern that the tests proposed in that case were not sufficiently definite. Vieth, 541 U.S. at 277–305 (plurality opinion).
It is, however, “not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied.” Vieth, 541 U.S. at 309– 10 (Kennedy, J., concurring in the judgment). To the contrary, “[w]here important rights are involved, the impossibility of full analytical satisfaction is reason to err on the side of caution,” not to foreclose any remedy. Id. at 311. Indeed, by refusing to entertain claims of constitutional violations, court may increase the temptation of political bodies to act in an unconstitutional manner, thereby encouraging future constitutional violations as well as leaving past violations unremedied. Id. at 312.
Third, treating judicial manageability as a freestanding ground for finding claims nonjusticiable gives courts vast discretion to selectively abdicate their obligations to entertain constitutional claims. As this Court repeatedly has recognized, “‘a federal court’s “obligation” to hear and decide’ cases within its jurisdiction ‘is virtually unflagging.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)); see also Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (noting the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them”). Thus, federal courts “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to

20
the constitution.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
Indeed, a free-standing notion of judicial manageability is itself vague and unmanageable in any consistent way. The Court has a variety of tools for dealing with difficult and complex issues, such as making narrow rulings that address only a small aspect of such issues or broader rulings that leave open to future consideration more particularized determinations. But there are no rules or standards by which to determine when these tools are unavailable and an issue is unmanageable. Indeed, defendants’ arguments illustrate the absence of any principled guidelines by which to apply judicial manageability as a free-standing justification for nonjusticiability. Defendants argue that the standards proposed by the trial court and the plaintiffs are unmanageable because they are based on improper assumptions (Appellants’ Br. 49), distort the role of voting in the democratic process (id. at 50), are biased (id. at 50–51), suffer from “technical defects” (id. at 51), and are overbroad (id. at 52). But all these points in fact address the merits of the proposed tests and furnish no reason to foreclose the inquiry by exercise of the political question doctrine.
Thus, in addition to short-circuiting the judicial process and leaving constitutional violations unremedied, treating judicial manageability as a freestanding justification for finding a question nonjusticiable would give courts inappropriate discretion to selectively abdicate their duties to decide constitutional claims and remedy constitutional violations.

21

CONCLUSION

The judgment should be affirmed.

September 5, 2017

Respectfully submitted,

Daniel H. Bromberg QUINN EMANUEL URQUHART &
SULLIVAN, LLP 555 Twin Dolphin Dr., 5th Fl. Redwood Shores, CA 94065 (650) 801-5008

Kathleen M. Sullivan Counsel of Record
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Ave., 22nd Fl. New York, NY 10010 (212) 849-7000 kathleensullivan@ quinnemanuel.com

Counsel for Amici Curiae

September 5, 2017

APPENDIX

1a
APPENDIX A
Susan Low Bloch Professor of Law Georgetown Law Center
Joseph Blocher Professor of Law Duke Law School
Rebecca L. Brown The Rader Family Trustee Chair in Law USC Gould School of Law
Michael C. Dorf Robert S. Stevens Professor Of Law Cornell Law School
Luis Fuentes-Rohwer Professor of Law and Harry T. Ice Faculty Fellow Indiana University, Maurer School of Law
Michael J. Gerhardt Samuel Ashe Distinguished Professor in
Constitution Law University of North Carolina School of Law
Jamal Greene Dwight Professor of Law Columbia Law School
Aziz Huq Frank and Bernice J. Greenberg Professor of Law The University of Chicago
Jenny S. Martinez Professor of Law and
Warren Christopher Professor in the Practice of International Law and Diplomacy Stanford Law School

2a
Martha Minow Carter Professor of General Jurisprudence at
Harvard Law School and Distinguished Service Professor at Harvard University Harvard Law School
Alan B. Morrison Lerner Family Associate Dean for Public Interest
& Public Service Law George Washington University Law School
Kermit Roosevelt Professor of Law University of Pennsylvania Law School
Bertrall Ross Chancellor’s Professor of Law University of California-Berkeley School of Law
Jane S. Schacter William Nelson Cromwell Professor of Law Stanford Law School
Carolyn Shapiro Associate Professor of Law and Co-Director
of the Institute on the Supreme Court of the United States IIT Chicago-Kent College of Law
Geoffrey R. Stone Edward H. Levi Distinguished Service
Professor of Law The University of Chicago

3a
David A. Strauss Gerald Ratner Distinguished Service Professor of
Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic The University of Chicago
Laurence H. Tribe Carl M. Loeb University Professor and Professor of
Constitutional Law Harvard Law School

 
 No. 16-1161

IN THE
Supreme Court of the United States
___________

BEVERLY R. GILL, ET AL., v.

Appellants,

WILLIAM WHITFORD, ET AL., ___________

Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin
___________

BRIEF OF CURRENT MEMBERS OF CONGRESS AND BIPARTISAN FORMER MEMBERS OF CONGRESS AS AMICI CURIAE
IN SUPPORT OF APPELLEES ___________

ELIZABETH B. WYDRA BRIANNE J. GOROD* DAVID H. GANS CONSTITUTIONAL
ACCOUNTABILITY CENTER 1200 18th Street NW
Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org

Counsel for Amici Curiae

September 05, 2017

* Counsel of Record

TABLE OF CONTENTS

Page

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

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

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

ARGUMENT ......................................................... 7

I. AT THE FRAMING, THE CONSTITUTION ESTABLISHED A SYSTEM OF GOVERNMENT IN WHICH THE PEOPLE CHOOSE THEIR ELECTED REPRESENTATIVES, NOT THE OTHER WAY AROUND ...................................................... 7

II. SUBSEQUENT AMENDMENTS TO THE CONSTITUTION PROTECT THE RIGHT OF INDIVIDUALS TO ASSOCIATE FOR POLITICAL ENDS AND GUARANTEE THAT ALL AMERICANS ENJOY EQUAL PROTECTION OF THE LAWS, REGARDLESS OF POLITICAL AFFILIATION........ 13

III. PARTISAN GERRYMANDERING THAT HAS THE PURPOSE AND EFFECT OF SUBORDINATING ADHERENTS OF A POLITICAL PARTY AND SEVERELY LIMITING THE EFFECTIVENESS OF THEIR VOTES VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS ...... 21

CONCLUSION .................................................... 32

APPENDIX: LIST OF AMICI ............................. 1A

(i)

Cases

ii TABLE OF AUTHORITIES

Page(s)

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) ................................... 24

Anderson v. Celebrezze, 460 U.S. 780 (1983) ................................... 27

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) .......................... passim

Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668 (1996) ................................... 26

Bd. of Estimate v. Morris, 489 U.S. 688 (1989) ................................... 22

Buckley v. Valeo, 424 U.S. 1 (1976) ....................................... 14

Burdick v. Takushi, 504 U.S. 428 (1992) ................................... 27

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ................................... 13, 25

Carrington v. Rash, 380 U.S. 89 (1965) ..................................... 29

Citizens United, Inc. v. Fed. Election Comm’n, 558 U.S. 310 (2010) ................................... 14

Cohen v. California, 403 U.S. 15 (1971) ..................................... 13

iii
TABLE OF AUTHORITIES – cont’d Page(s)
Elrod v. Burns, 427 U.S. 347 (1976) ........................... 25, 26, 29

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ................................ 9, 28

Fortson v. Dorsey, 379 U.S. 433 (1965) .................................... 24

Gaffney v. Cummings, 412 U.S. 735 (1973) ....................

24, 28, 29

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................................ 23, 28

Gray v. Sanders, 372 U.S. 368 (1963) .................................... 22

Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) ................................ 26

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) .................................... 17

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) .................................... 23

Kusper v. Pontikes, 414 U.S. 51 (1973) ..................................... 25

League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ............................... 21, 25

Matal v. Tam,

137 S. Ct. 1744 (2017) ...........................

26

iv
TABLE OF AUTHORITIES – cont’d Page(s)
McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014) ........................ 4, 13, 20

McDonald v. City of Chicago, 561 U.S. 742 (2010) .................... 15, 16, 18, 19

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) .................................... 14

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .......................... 6, 18, 31

O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) .................................... 26

Reynolds v. Sims, 377 U.S. 533 (1964) .............................. passim

Rogers v. Lodge,

458 U.S. 613 (1982) ..............................

24

Romer v. Evans, 517 U.S. 620 (1996) .............................. 16, 21

Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) ............................. 26, 28, 29

Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623 (2014) .............................. 6, 31

Shelby County v. Holder, 133 S. Ct. 2612 (2013) ................................ 15

Strauder v. West Virginia, 100 U.S. 303 (1880) .................................... 20

v
TABLE OF AUTHORITIES – cont’d Page(s)
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) .................................... 25

Texas v. Johnson, 491 U.S. 397 (1989) .................................... 31

The Civil Rights Cases, 109 U.S. 3 (1883) ........................................ 5, 15

Thornburg v. Gingles, 478 U.S. 30 (1986) ...................................... 25

United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ............................... 21, 32

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .................................... 11

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

Voinovich v. Quilter,

507 U.S. 146 (1993) ...............................

25

West Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ...............................

26

Whitcomb v. Chavis,

403 U.S. 124 (1971) ...............................

24

White v. Regester, 412 U.S. 755 (1973) ................................... 24

Williams v. Rhodes,

393 U.S. 23 (1968) .................................

27

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............................. 4, 15, 20

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ..............................

31

Constitutional Provisions and Legislative Materials

1 Annals of Cong. (1789) ............................... 13

4 Annals of Cong. (1794) ............................... 4, 14

Cong. Globe, 39th Cong., 1st Sess. (1866).............................. 16, 17, 18, 19

2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836) ............................................... 3, 7, 9, 12, 14

3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836)......... 13

4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836)..... 8, 9, 14

The Declaration of Independence (U.S. 1776) ........................................................... 8

Joint Comm. on Reconstruction, Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (1866)……………...............5, 15, 19, 20

1 Records of the Federal Convention (Max Farrand ed., 1911)……………………………..8, 9, 10

2 Records of the Federal Convention (Max Farrand ed., 1911)............................3, 10, 11, 12

vii TABLE OF AUTHORITIES – cont’d
Page(s) U.S. Const. pmbl. .......................................... 7

U.S. Const. art. I, § 2, cl. 1 ............................ 9

U.S. Const. art. I, § 2, cl. 3 ............................ 9

U.S. Const. art. IV, § 4 ..............................

11

U.S. Const. amend. XIV, § 2 ......................... 20

U.S. Const. amend. XV, § 1........................... 20

U.S. Const. amend. XIX, § 1 ......................... 20

U.S. Const. amend. XXIV, § 1 ....................... 20

U.S. Const. amend. XXVI, § 1 ....................... 20

Books, Articles, and Other Authorities

Akhil Reed Amar, America’s Constitution: A Biography (2005) .................................... 8

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998)............ 3, 13, 17

Mitch Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005) .................. 2

Chi. Trib., Aug. 2, 1866, reprinted in Speeches of the Campaign of 1866 in the States of Ohio, Kentucky, and Illinois (1866) .......................................................... 16

Cincinnati Com., Aug. 20, 1866 .................... 16

The Federalist No. 1 (Hamilton) (Clinton Rossiter rev. ed., 1999)............................... 7

viii
TABLE OF AUTHORITIES – cont’d Page(s)
The Federalist No. 14 (Madison) (Clinton Rossiter rev. ed., 1999)............................... 8

The Federalist No. 37 (Madison) (Clinton Rossiter rev. ed., 1999)............................... 9

The Federalist No. 39 (Madison) (Clinton Rossiter rev. ed., 1999)............................... 8

The Federalist No. 43 (Madison) (Clinton Rossiter rev. ed., 1999)............................... 11

The Federalist No. 52 (Madison) (Clinton Rossiter rev. ed., 1999)............................... 10

The Federalist No. 57 (Madison) (Clinton Rossiter rev. ed., 1999)............................... 10

The Federalist No. 78 (Hamilton) (Clinton Rossiter rev. ed., 1999)............................... 8

Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (rev. ed. 2014) ........................................................... 18

Benj. B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (1914) .......................................................... 17

James Madison, Report on the Virginia Resolution (1800)..............................

4, 14

Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (2010) .......................................................... 12

ix
TABLE OF AUTHORITIES – cont’d Page(s)
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) ........................................... 8
Gordon S. Wood, The Creation of the American Republic, 1776-1787 (1969) ............... 9

1
INTEREST OF AMICI CURIAE1
Amici curiae are current members of Congress and bipartisan former members of Congress who have a strong interest in redistricting and in the robust enforcement of the constitutional principles that govern the electoral process. As current and former members of Congress, amici appreciate the significance of the fundamental republican principle that voters choose their representatives, not the other way around, and they are familiar with the constitutional provisions that ensure that this principle is respected. Indeed, as current and former members of Congress, amici are particularly familiar with the Elections Clause, which gives Congress the power to override state regulation of the time, place, and manner of federal elections, in order to enable Congress to prevent state manipulation of electoral rules. But amici also understand the important roles the First and Fourteenth Amendments play in ensuring democratic self-governance and that all Americans enjoy equal protection of the laws, regardless of political affiliation. Having served in Congress, amici know well how critical it is that these constitutional provisions be enforced, and accordingly they have a strong interest in this case.
A full listing of amici appears in the Appendix.
1 The parties have consented to the filing of this brief and their letters of consent have been filed with the Clerk. Under Rule 37.6 of the Rules of this Court, amici state that no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to its preparation or submission.

2
SUMMARY OF ARGUMENT
In 2011, the Wisconsin legislature redrew the maps for its State Assembly districts. Legislative leaders of the party in control of the state legislature organized a secretive mapmaking process open only to members of that party. Meeting behind closed doors, the drafters of the plan, together with expert consultants, drew districts to ensure that their party would wield political power far in excess of votes cast in the polls, thereby maintaining their control of the Assembly no matter what happened in future elections.
Wisconsin is historically a closely-divided state, but the brazen gerrymandering of Assembly districts has resulted in a durable Republican super-majority control. Indeed, in 2012, Republicans held a supermajority of Assembly districts even while losing the statewide vote. This is not a bug, but a feature of the gerrymandered Assembly map. The mapmakers wrote the districts to ensure Republican control even in the face of an electoral swing in favor of Democrats. Wisconsin’s districting scheme violates “‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (quoting Mitch Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781, 781 (2005)). Wisconsin’s drawing of lines to “subordinate adherents of one political party,” id. at 2658, “by reason of their views,” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring), and to burden disfavored “voters’ representational rights,” id., cannot be squared with the Constitution’s text and history and this Court’s precedents.

3
When our Constitution’s Framers wrote our national charter more than two centuries ago, they recognized that “the true principle of a republic is, that the people should choose whom they please to govern them.” 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 257 (Jonathan Elliot ed., 1836) [hereinafter “Elliot’s Debates”]. This republican design is reflected in numerous aspects of the Constitution’s text and structure. The Framers were deeply suspicious of partisan manipulation of the electoral process, and they wrote into the Constitution’s text and structure protections against partisan gerrymandering and other similar abuses in federal elections.
Most significantly, the Elections Clause empowered Congress to override state election regulations, adopted “when faction and party spirit run high,” that “would render the rights of the people insecure and of little value,” such as efforts to make an “unequal and partial division of the states into districts for the election of representatives[.]” Id. at 27. Congress’s broad power to set aside state regulation of the time, place, and manner of federal elections was necessary because, as James Madison argued, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 2 Records of the Federal Convention 241 (Max Farrand ed., 1911). Concerns about partisan efforts to manipulate the rules of our democracy are thus as old as the Constitution itself.
In 1789, the First Amendment was added to the Constitution, ensuring protection of “the special structural role of freedom of speech in a representative democracy.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 25 (1998). The

4
First Amendment, at its core, protects the “right of freely examining public characters and measures, and of free communication among the people thereon,” see James Madison, Report on the Virginia Resolution (1800), in 4 Elliot’s Debates at 546, 573, reflecting that “the censorial power is in the people over the Government, and not in the Government over the people,” 4 Annals of Cong. 934 (1794). Governmental efforts to subject “a group of voters or their party to disfavored treatment by reason of their views,” Vieth, 541 U.S. at 314 (Kennedy, J., concurring), cannot be squared with the freedom of speech and association the Constitution guarantees to all.
The 18th century Constitution contained few direct limits on the states, but, in the wake of a bloody Civil War fought over slavery, the American people fundamentally altered our federal system, adding to the Constitution universal guarantees of substantive fundamental rights and equal protection of the laws, and, in later amendments as well, protections for the right of citizens to vote, a right that this Court has recognized is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1440-41 (2014) (“There is no right more basic in our democracy than the right to participate in electing our political leaders.”). Significantly, these amendments prohibit more than outright denials of the right to vote, because “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Efforts by the government to subordinate persons on account of their political affiliation cannot be squared with the Fourteenth Amendment’s

5
universal guarantee of the equal protection of the laws.
When the Framers of the Fourteenth Amendment wrote the equal protection guarantee, they were particularly concerned about the efforts of southern states to deny equal rights to citizens associated with the Republican party, who had supported the Union during the Civil War. The report of the Joint Committee on Reconstruction, which authored the Fourteenth Amendment, detailed the animus directed at southern Republicans, and the interviews conducted by the Joint Committee confirmed this sad state of affairs in painstaking detail, demonstrating the need for “such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic.” Joint Comm. on Reconstruction, Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. xxi (1866). As ratified, “the Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.” The Civil Rights Cases, 109 U.S. 3, 24 (1883). As history shows, that includes state efforts to subordinate persons affiliated with a disfavored political party, such as by “burdening a group of voters’ representational rights.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring).
These fundamental principles, reflected both in the Constitution’s text and history and in this Court’s cases, establish that the Constitution firmly limits the authority of state legislatures to draw lines that systematically subordinate persons associated with one political party and dilute their voting strength, not for any legitimate government purpose, but simply to entrench the governing political party in power.

6
States do not have carte blanche to use “partisan classifications” in order to “burden[] rights of fair and effective representation,” id. at 312 (Kennedy, J., concurring), rights at the core of our Constitution’s system of democracy and self-governance. There is no “redistricting” exception to the Constitution’s First Amendment and equal protection guarantees.
When a plan is drawn—as Wisconsin did here—to entrench a political party in power over the life of the plan and even in the face of an electoral swing to their political opponents, it violates the fundamental constitutional principle that “‘the voters should choose their representatives, not the other way around.’” Ariz. State Legislature, 135 S. Ct. at 2677 (citation omitted); Vieth, 541 U.S. at 361 (Breyer, J., dissenting) (“[P]olitical gerrymandering that so entrenches a minority party in power violates basic democratic norms.”). The state may not place such unequal burdens on a group of voters’ opportunities to elect their representatives simply because of the party they associate with. Such gerrymandering perverts our Constitution’s democratic principles, changing the relationship between the people and their elected representatives.
“[W]hen the rights of persons are violated, ‘the Constitution requires redress by the courts’ . . . . This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.” Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015) (quoting Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014)). As appellees have shown, there are “judicially discernible and manageable standards,” Vieth, 541 U.S. at 281, to distinguish ordinary political line-drawing from unconstitutional efforts to subordinate a group of voters on account of their political affiliation. Appellees’ Br. at 32-56.

7
Persons subjected to an abridgement of their First and Fourteenth Amendment rights by Wisconsin’s extreme partisan gerrymander should not be denied a remedy simply because redistricting is inevitably a political process. In our constitutional system, legislative majorities cannot use their broad powers to draw district lines to nullify the essential premises of our Constitution’s system of self-government. Because Wisconsin’s extreme and durable partisan gerrymander subordinates adherents of one political party, burdens their representational rights, and dilutes and degrades their right to vote, the district court’s judgment should be affirmed.
ARGUMENT
I. AT THE FRAMING, THE CONSTITUTION ESTABLISHED A SYSTEM OF GOVERNMENT IN WHICH THE PEOPLE CHOOSE THEIR ELECTED REPRESENTATIVES, NOT THE OTHER WAY AROUND.
More than two centuries ago, “We the People,” “ordain[ed] and establish[ed]” the Constitution, see U.S. Const. pmbl., creating a system of government organized around the idea that “the true principle of a republic is, that the people should choose whom they please to govern them,” 2 Elliot’s Debates at 257. As the opening words of the first of the Federalist Papers stress, the Constitution was itself an act of popular sovereignty and self-government. The Federalist No. 1, at 1 (Hamilton) (Clinton Rossiter rev. ed., 1999) (“You are called upon to deliberate on a new Constitution for the United States of America.”). “It is evident that no other form [of government] would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which

8
animates every votary of freedom to rest all our political experiments on the capacity of mankind for selfgovernment.” The Federalist No. 39, at 208 (Madison).
At a time when “democratic self-government existed almost nowhere on earth,” Akhil Reed Amar, America’s Constitution: A Biography 8 (2005), the Framers designed a new system of government “where the true principles of representation are understood and practiced, and where all authority flows from, and returns at stated periods to, the people.” 4 Elliot’s Debates at 331; see The Federalist No. 14, at 68 (Madison) (“[E]ven in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular and founded, at the same time, wholly on that principle.”). In the republican system of government created by the Framers, “the representatives of the people” could never be “superior to the people themselves.” The Federalist No. 78, at 435 (Hamilton).
Ensuring fair and effective representation for all had deep roots in America’s bid for independence from England. The Framers were familiar with what James Madison called the “vicious representation in G. B.,” 1 Records of the Federal Convention, at 464, in which “so many members were elected by a handful of easily managed voters in ‘pocket’ and ‘rotten’ boroughs, while populous towns went grossly underrepresented or not represented at all,” Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 210 (1996). The Declaration of Independence charged that King George III had forced the colonists to “relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.” The Declaration of Independence para. 5 (U.S. 1776). Having

9
seen the political system manipulated for partisan ends in England, the Framers strove to design a system that reflected that a “free and equal representation is the best, if not the only foundation upon which a free government can be built.” 2 Elliot’s Debates at 25; Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 170 (1969) (observing that of all “the electoral safeguards for the representational system” none “was as important to Americans as equality of representation”). The Framers appreciated that the “genius of republican liberty seems to demand on one side not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people.” The Federalist No. 37, at 195 (Madison).
These fundamental republican principles are amply reflected in the Constitution’s text and structure. In order to ensure that “the foundations of this government should be laid on the broad basis of the people,” 4 Elliot’s Debates at 21, Article I, Section 2 of the Constitution provides that the “House of Representatives shall be composed of Members chosen every second Year by the People of the several States[.]” U.S. Const. art. I, § 2, cl. 1. While the Senate was ultimately designed to represent the several States, the House of Representatives would be “the grand depository of the democratic principle of the Govt.” and “ought to know & sympathise with every part of the community,” 1 Records of the Federal Convention at 48, serving as “the most exact transcript of the whole Society,” id. at 132. To ensure rights of fair and effective representation, Article I, Section 2 allocates representatives to the states “according to their respective Numbers,” U.S. Const. art. I, § 2, cl. 3, reflecting that “‘every individual of the community at large has an equal right to the protection of government,’” Ev-

10
enwel v. Abbott, 136 S. Ct. 1120, 1127 (2016) (quoting 1 Records of the Federal Convention at 473).
The Constitution also establishes explicit rules concerning the right to vote in federal elections and to run for Congress, recognizing that “[i]f the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect.” 2 Records of the Federal Convention at 250. Because the “definition of the right of suffrage is very justly regarded as a fundamental article of republican government,” The Federalist No. 52, at 294 (Madison), the Framers provided that “the electors are to be the great body of the people of the United States,” The Federalist No. 57, at 319 (Madison), incorporating state suffrage rules to broadly protect the right to vote in federal elections. Id. (“Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.”).
Along similar lines, the Constitution establishes minimal qualification for candidates for federal office. Id. (“Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people.”). The Framers recognized that “[q]ualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of (a weaker) faction,” 2 Records of the Federal Convention at 250, reflecting their con-

11
cern about partisan manipulation of the electoral process.
The Constitution also conferred specific powers on the federal government to ensure the integrity of the system of government established by the Constitution. The Guarantee Clause empowers the “United States” to “guarantee to every State in this Union a Republican Form of Government,” U.S. Const. art. IV, § 4, protecting the Constitution’s system of government from “aristocratic or monarchical innovation,” The Federalist No. 43, at 242 (Madison). Even more on point, the Elections Clause of Article I, Section 4 gives Congress the power to override state regulation of the time, place, and manner of federal elections, a reflection of the “Framers’ distrust of the States regarding elections.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 811 n.21 (1995). As history shows, this grant of power was “intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate.” Ariz. State Legislature, 135 S. Ct. at 2672; see Vieth, 541 U.S. at 275 (discussing the Framers’ conclusion that “Congress must be given the power to check partisan manipulation of the election process by the States”).
During the debates over the Elections Clause at the Constitutional Convention, James Madison argued that a limit on state power was necessary because “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 2 Records of the Federal Convention at 241. The Elections Clause gave “a controuling power to the Natl. legislature,” id., because “State Legislatures will sometimes fail or refuse to

12
consult the common interest at the expense of their local conveniency or prejudices,” id. at 240. Madison observed that “it was impossible to foresee all the abuses that might be made of the discretionary power,” id., noting that there were many ways—including districting—that state legislative majorities might manipulate the democratic process in order to “materially affect the appointments,” id. at 241.
In debates over the Elections Clause during state ratifying conventions, those urging the Constitution’s ratification justified “Congress’s power over elections as a way of correcting unjust state voting systems and defending the people’s right to equal voting power.” Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 210 (2010). For example, at the Massachusetts convention, Theophilus Parsons explained that the Elections Clause provided a remedy against state manipulation of the democratic process for partisan ends. “[W]hen faction and party spirit run high,” Parsons warned, state legislative majorities “might make an unequal and partial division of the states into districts for the election of representatives” or introduce other “such regulations as would render the rights of the people insecure and of little value.” 2 Elliot’s Debates at 27. The Elections Clause, he argued, “provides a remedy,” empowering Congress to “restore to the people their equal and sacred rights of election.” Id.
During these debates, the Constitution’s supporters often pointed to the case of South Carolina, where “South Carolina’s coastal elite had malapportioned their legislature, and wanted to retain the ability to do so.” Ariz. State Legislature, 135 S. Ct. at 2672; see 2 Elliot’s Debates at 51 (“The representatives, therefore, from [South Carolina], will not be chosen by the people, but will be representatives of a faction of that

13
state. If the general government cannot control in this case, how are the people secure?”); 3 id. at 367 (“Elections are regulated now unequally in some states, particularly South Carolina . . . . Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.”).
In short, from the very beginnings of our Constitution’s history, attempts by state majorities to manipulate the electoral process have been viewed with deep suspicion. As a consequence, many provisions of the Constitution were drafted to create a republican system of government that helps “secure a representation from every part, and prevent any improper regulations, calculated to answer party purposes only.” 1 Annals of Cong. 797 (1789).
II. SUBSEQUENT AMENDMENTS TO THE CONSTITUTION PROTECT THE RIGHT OF INDIVIDUALS TO ASSOCIATE FOR POLITICAL ENDS AND GUARANTEE THAT ALL AMERICANS ENJOY EQUAL PROTECTION OF THE LAWS, REGARDLESS OF POLITICAL AFFILIATION
In 1789, the First Amendment was added to the Constitution, protecting “the special structural role of freedom of speech in a representative democracy.” Amar, The Bill of Rights, supra, at 25. As this Court has long recognized, the First Amendment “‘is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.’” McCutcheon, 134 S. Ct. at 1448 (quoting Cohen v. California, 403 U.S. 15, 24 (1971)); Cal.

14
Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (“Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.”).
Thus, the First Amendment protects the “right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” James Madison, Report on the Virginia Resolution (1800), in 4 Elliot’s Debates at 546, 573; Citizens United, Inc. v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-37 (1995) (“‘In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation.’” (quoting Buckley v. Valeo, 424 U.S. 1, 14-15 (1976))).
The First Amendment—like the original Constitution—reflects that “[i]n our governments, the supreme, absolute, and uncontrollable power remains in the people.” 2 Elliot’s Debates at 432 (emphasis in original); see James Madison, Report on the Virginia Resolution (1800), in 4 Elliot’s Debates at 546, 569 (“[i]n the United States, . . . [t]he people, not the government, possess the absolute sovereignty”). As Madison put it, “[i]f we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.” 4 Annals of Cong. 934 (1794).

15
When the Fourteenth Amendment was added to the Constitution nearly seventy years later, it built upon the First Amendment’s guarantee, providing further protection against the possibility that persons affiliated with a disfavored political party would be subject to unequal treatment under law. That Amendment, along with the other “constitutional Amendments adopted in the aftermath of the Civil War[,] fundamentally altered our country’s federal system,” McDonald v. City of Chicago, 561 U.S. 742, 754 (2010), adding to the Constitution sweeping new limits on state governments. These limits were designed to secure “the civil rights and privileges of all citizens in all parts of the republic,” see Report of the Joint Committee at xxi, to “keep[] whatever sovereignty [a State] may have in harmony with a republican form of government and the Constitution of the country,” Cong. Globe, 39th Cong., 1st Sess. 1088 (1866), and, in later amendments as well, to protect the right of citizens to vote, see Shelby County v. Holder, 133 S. Ct. 2612, 2636 n.2 (2013) (Ginsburg, J., dissenting) (“The Constitution uses the words ‘right to vote’ in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and TwentySixth Amendments.”).
The plain text of the Fourteenth Amendment, which prohibits a state from denying to “any person” the “equal protection of the laws,” establishes a broad guarantee of equality for all persons, forbidding legislative majorities from discriminating against disfavored persons. See Yick Wo, 118 U.S. at 369 (“These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality . . . .”); The Civil Rights Cases, 109 U.S. at 24 (“The Fourteenth Amendment extends its protec-

16
tion to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.”); Romer v. Evans, 517 U.S. 620, 623 (1996) (explaining that the “Equal Protection Clause enforces” a “commitment to the law’s neutrality where the rights of persons are at stake”).
As history shows, the original meaning of the equal protection guarantee “establishes equality before the law,” Cong. Globe, 39th Cong., 1st Sess. at 2766, “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another,” id. The Fourteenth Amendment “put in the fundamental law the declaration that all citizens were entitled to equal rights in this Republic,” Chi. Trib., Aug. 2, 1866, at 2, reprinted in Speeches of the Campaign of 1866 in the States of Ohio, Kentucky, and Illinois 6 (1866), placing all “throughout the land upon the same footing of equality before the law, in order to prevent unequal legislation,” Cincinnati Com., Aug. 20, 1866, at 2.
The Fourteenth Amendment’s Framers crafted a broad guarantee of equality for all persons to bring the Constitution back into line with fundamental principles of American equality, which had been betrayed and stunted by the institution of slavery. See McDonald, 561 U.S. at 807 (Thomas, J., concurring) (“[S]lavery, and the measures designed to protect it, were irreconcilable with the principles of equality . . . and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure.”). After nearly a century in which the Constitution sanctioned racial slavery and allowed all manner of state-sponsored discrimination, the Fourteenth Amendment codified our nation’s founding promise of equality through the text of the Equal Pro-

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tection Clause. As the Amendment’s Framers explained time and again, the guarantee of the equal protection of the laws was “essentially declared in the Declaration of Independence.” Cong. Globe, 39th Cong., 1st Sess. at 2961.
Thus, the Amendment’s broad wording was no accident. When the 39th Congress designed the Fourteenth Amendment, it chose broad, universal language specifically intended to secure equal rights for all. While the Amendment was written and ratified in the aftermath of the Civil War and the end of slavery, it protects all persons. “[S]ection 1 pointedly spoke not of race but of more general liberty and equality.” Amar, The Bill of Rights, supra, at 260-61 n.*. Indeed, the Reconstruction-Era Framers specifically considered and rejected proposed constitutional language that would have outlawed racial discrimination and nothing else, see Benj. B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 46, 50, 83 (1914), preferring a universal guarantee of equality that secured equal rights to all persons. Whether the proposals were broad in scope or were narrowly drafted to prohibit racial discrimination in civil rights, the Framers of the Fourteenth Amendment consistently rejected limiting the Amendment’s equality guarantee to racial discrimination. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 151 (1994) (Kennedy, J., concurring) (“Though in some initial drafts the Fourteenth Amendment was written to prohibit discrimination against ‘persons because of race, color or previous condition of servitude,’ the Amendment submitted for consideration and later ratified contained more comprehensive terms . . . .”). The Fourteenth Amendment’s “neutral phrasing,” “extending its guarantee to ‘any person,’’’ id. at 152 (Kennedy, J., concurring), secures equal

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rights and “equal dignity in the eyes of the law,” Obergefell, 135 S. Ct. at 2608, for all men and women of any race, no matter what their political views. Efforts by the government to subordinate persons affiliated with a political party disfavored by the state cannot be squared with the Fourteenth Amendment’s universal guarantee of the equal protection of the laws.
History shows that the Framers wrote the Amendment’s guarantees broadly because, among other things, they were concerned about state efforts in the South to single out for discrimination persons belonging to or associated with the Republican party, which had supported the Union during the Civil War and opposed efforts to reinstitute slavery. The Framers were aware of “the white South’s inability to adjust to the end of slavery, the widespread mistreatment of blacks, Unionists, and Northerners, and a pervasive spirit of disloyalty.” Eric Foner, Reconstruction: America’s Unfinished Revolution, 18631877, at 225 (rev. ed. 2014); see McDonald, 561 U.S. at 779 (discussing the “plight of whites in the South who opposed the Black Codes”). In the South, Unionists associated with the Republican party were subject to all manner of discrimination because of their views. Debates in the 39th Congress repeatedly made the point that “[t]he courts are rebel, jurors rebel, Legislatures rebel . . . . They do not disguise their hate for Union men,” Cong. Globe, 39th Cong., 1st Sess. at 783, and therefore “the adoption of this Amendment” was “essential to the protection of the Union men” who “will have no security in the future except by force of national laws giving them protection against those who have been in arms against them,” id. at 1093; id. at 1263 (“[W]hite men . . . have been driven from their homes, and have had their

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lands confiscated in State courts, under State laws, for the crime of loyalty to their country . . . .”).
This sad state of affairs was documented in painstaking detail in the report of the Joint Committee on Reconstruction, “which was widely reprinted in the press and distributed by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amendment,” McDonald, 561 U.S. at 772, and “extensively catalogued the abuses of civil rights in the former slave States,” id. at 827 (Thomas, J., concurring). The Committee, which took the “testimony of a great number of witnesses,” Cong. Globe, 39th Cong., 1st Sess. at 2765, learned of a deep-seated hostility to both the newly freed slaves and their Republican allies. The witnesses the Committee spoke with confirmed that, in the South, “there is . . . a great bitterness towards the [R]epublican party” and that people “look upon them with the greatest hatred, the greatest ill-will imaginable for one class of men to feel towards another.” Report of the Joint Committee, pt. II, at 66, 208. As a result, the Committee concluded that, without federal protection, “Union men, whether of northern or southern origin, would be obliged to abandon their homes” because of animus “totally averse to the toleration of any class of people friendly to the Union, be they white or black.” Id. at xvii. “Southern men who adhered to the Union are bitterly hated and relentlessly persecuted.” Id. at xvii-xviii. Numerous witnesses confirmed that civil rights protections could not be enjoyed because a “loyal man” could not “get his rights in the courts” because of “prejudice,” id. at pt. II, 97, that newly formed governments “would legislate against them in every way,” id. at pt. I, 106, and that it was unlikely that persons “would be allowed to express openly their Union sentiments with-

20
out the protection of the United States troops,” id. at pt. III, 101. Should a Republican Unionist run for office “[h]e would have no chance at all”; “[t]hey would break up their polls and destroy their ballots.” Id. at pt. IV, 81.
To prevent these sorts of past abuses as well as new ones that might arise in the future, the Fourteenth Amendment established equality under the law and equality of rights for all persons as a constitutional mandate, forbidding state majorities from using the democratic process to subject disfavored persons—whether by reason of their race, their political views, or some other form of animus—to discriminatory treatment and the loss of their fundamental rights. This sweeping guarantee of equality applies to the appellees in this case, who seek to enjoy the “right to participate in electing our political leaders,” McCutcheon, 134 S. Ct. at 1440-41, on an equal basis with all other voters in their state. “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.” Reynolds, 377 U.S. at 567. As the district court observed, because of the discrimination in this case, a “voter” belonging to or seeking to affiliate with Democratic candidates for office “is in essence an unequal participant in the decisions of the body politic.” Juris. Statement App. (“J.S. App.”) at 107a.
There is no “redistricting” exception to these fundamental Fourteenth Amendment principles. The text of the Fourteenth Amendment’s guarantee of equality “speaks in general terms, and those are as comprehensive as possible.” Strauder v. West Virginia, 100 U.S. 303, 310 (1880). Moreover, the right to vote is a fundamental right, “preservative of all rights.” Yick Wo, 118 U.S. at 370. Indeed, no right is protected by more parts of the Constitution. U.S.

21
Const. amend. XIV, § 2; amend. XV, § 1; amend. XIX, § 1; amend. XXIV, § 1; amend. XXVI, § 1. For good reason, “[a]llegations of unconstitutional bias in apportionment are most serious claims, for we have long believed that ‘the right to vote’ is one of ‘those political processes ordinarily to be relied upon to protect minorities.’” Vieth, 541 U.S. at 311-12 (Kennedy, J., concurring) (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938)). A districting plan that, in essence, “declar[es] that in general it shall be more difficult for one group of citizens”— defined by their political views—to “seek aid from the government” through the political process is “itself a denial of equal protection of the laws in the most literal sense.” Romer, 517 U.S. at 633; Vieth, 541 U.S. at 312 (Kennedy, J., concurring) (“If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation’ . . . we would surely conclude that the Constitution had been violated.”). Thus, this Court’s “precedents recognize an important role for the courts when a districting plan violates the Constitution.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 415 (2006) (opinion of Kennedy, J.). The next section examines this case law.
III. PARTISAN GERRYMANDERING THAT HAS THE PURPOSE AND EFFECT OF SUBORDINATING ADHERENTS OF A POLITICAL PARTY AND SEVERELY LIMITING THE EFFECTIVENESS OF THEIR VOTES VIOLATES THE FIRST AND FOURTEENTH AMENDMENTS
Three lines of this Court’s precedents strongly support the proposition that extreme, durable partisan gerrymanders that have the purpose and effect of

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subordinating adherents of a political party and severely limiting the effectiveness of their votes violate the First and Fourteenth Amendments. As these cases make clear, when a state uses “partisan classifications” in a manner that “burdens rights of fair and effective representation,” Vieth, 541 U.S. at 312 (Kennedy, J., concurring), and violates “‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around,’” Ariz. State Legislature, 135 S. Ct. at 2677 (citation omitted), judicial relief is warranted, see Reynolds, 377 U.S. at 566 (“[A] denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.”). A plan that so degrades the rights of persons belonging to or associated with a disfavored party cannot be squared with “the concept of ‘we the people’ under the Constitution” which “visualizes no preferred class of voters but equality among those who meet the basic qualification.” Gray v. Sanders, 372 U.S. 368, 379-80 (1963).
First, this Court’s one-person, one-vote cases beginning with Reynolds have held that “[s]ince the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, . . . the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.” Reynolds, 377 U.S. at 565-66. Applying these principles, Reynolds held unconstitutional a state legislative districting scheme that gave disproportionate political representation to persons living in rural areas, concluding that “[d]iluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment.” Id. at 566; see Bd. of Estimate v. Morris, 489 U.S. 688, 693-94 (1989) (“If

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districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts.”); Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969) (explaining that Reynolds’ rule is “designed to prevent debasement of voting power and diminution of access to elected representatives”).
Reynolds stressed both equal protection principles as well as republican principles deeply rooted in the text and structure of the Constitution. “As long as ours is a representative government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.” Reynolds, 377 U.S. at 562. Any other result would “sanction minority control of state legislative bodies” and prevent legislatures from being “collectively responsive to the popular will.” Id. at 565. A system that gave persons more political power based on where they lived burdened voters’ representational rights, denying certain citizens “an equally effective voice in the election of members of his state legislature.” Id.
Second, this Court’s cases have also vindicated the rights of racial minorities to participate equally in the political process by preventing at-large and multimember districting schemes from “being used invidiously to cancel out or minimize the voting strength of racial groups.” White v. Regester, 412 U.S. 755, 765 (1973); see Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) (striking down redrawing of boundaries designed to “despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights”). Drawing on the one-person, one-vote principle enun-

24
ciated in Reynolds, the Court’s cases have affirmed that “[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot,” Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969), and that the plaintiffs may prove vote dilution—and therefore an unconstitutional burden on their representational rights—by demonstrating that racial minorities “had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” White, 412 U.S. at 766; see Rogers v. Lodge, 458 U.S. 613, 617 (1982) (“[M]ultimember districts violate the Fourteenth Amendment if ‘conceived or operated as purposeful devices to further racial discrimination’ by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population.” (quoting Whitcomb v. Chavis, 403 U.S. 124, 149 (1971))); Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (explaining that “multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized”); Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (recognizing that “designedly or otherwise, a multi-member constituency apportionment scheme” might “operate to minimize or cancel out the voting strength of racial or political elements of the voting population”). These cases, thus, quite explicitly protect “rights of fair and effective representation,” Vieth, 541 U.S. at 312 (Kennedy, J., concurring), by ensuring that “each citizen have an equally effective voice in the election of members of his state legislature,” Reynolds, 377 U.S. at 565.
Likewise, this Court’s cases construing the results test of Section 2 of the Voting Rights Act, a statute that enforces constitutional protections, have held

25
that states may not “dilut[e] minority voting power” by the “manipulation of district lines.” Voinovich v. Quilter, 507 U.S. 146, 153 (1993); Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986) (“Dilution of racial minority group voting strength may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority.”); League of United Latin Am. Citizens, 548 U.S. at 428-29 (finding that redrawing of lines to reduce percentage of Latino voting age population “prevented the immediate success of the emergent Latino majority” and resulted in “a denial of opportunity in the real sense of that term”).
Manipulation of district lines—whether through packing or cracking voters—can burden voters’ representational rights by severely limiting the effectiveness of their votes. That is exactly what the evidence shows that Wisconsin has done here. See Appellees’ Br. at 7.
Third, and finally, this Court’s First Amendment cases have repeatedly struck down efforts to subordinate persons belonging to or associated with a political party disfavored by the state. “[P]olitical belief and association constitute the core of those activities protected by the First Amendment,” Elrod v. Burns, 427 U.S. 347, 356 (1976), and the “right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom,” Kusper v. Pontikes, 414 U.S. 51, 57 (1973); see Cal. Democratic Party, 530 U.S. at 574 (recognizing that the First Amendment protects “‘the freedom to join together in furtherance of common political beliefs’” (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-215 (1986))). Subordinating adherents of a disfavored political party “based on disapproval of the[ir]

26
ideas or perspectives” is “the essence of viewpoint discrimination.” Matal v. Tam, 137 S. Ct. 1744, 1765, 1766 (2017) (Kennedy, J., concurring); Appellees’ Br. at 36.
As this Court’s precedents make clear, “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Vieth, 541 U.S. at 314 (Kennedy, J., concurring), because “the system of government the First Amendment was intended to protect” is a “democratic system whose proper functioning is indispensably dependent on the unfettered judgment of each citizen on matters of political concern,” Elrod, 427 U.S. at 372. The First Amendment does not permit the state to subject to disfavored treatment persons whose “beliefs and associations” do not “conform . . . to some state-selected orthodoxy,” Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990), in order to “tip[] the electoral process in favor of the incumbent party,” Elrod, 427 U.S. at 356; Heffernan v. City of Paterson, 136 S. Ct. 1412, 1417 (2016) (“With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. The basic constitutional requirement reflects the First Amendment’s hostility to government action that ‘prescribe[s] what shall be orthodox in politics.’” (quoting West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943))). “[G]overnment discrimination based on the viewpoint of one’s speech or one’s political affiliations” is simply antithetical to the First Amendment. See Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 683 (1996); O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 721 (1996) (refusing to permit government to “coerce

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support” simply because of “dislike of the individual’s political association”).
The First Amendment analysis that applies in this case and others involving state regulation of the electoral process “concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring). This Court’s cases insist on a “pragmatic or functional assessment that accords some latitude to the States,” id.; Burdick v. Takushi, 504 U.S. 428, 434 (1992), while ensuring “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively,” Williams v. Rhodes, 393 U.S. 23, 30 (1968). Under these established First Amendment principles, “it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.” Anderson v. Celebrezze, 460 U.S. 780, 793 (1983). That reflects that “[c]ompetition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms.” Williams, 393 U.S. at 32. Because “voters can assert their preferences only through candidates or parties or both,” Anderson, 460 U.S. at 787, efforts by a state to subordinate adherents of a disfavored party and severely limit the effectiveness of their votes cannot be squared with the fundamental limits enshrined in the First Amendment. The First Amendment denies to the government the authority to entrench one party in power.
It is, of course, true that “[p]olitics and political considerations are inseparable from districting and

28
apportionment” and that “districting inevitably has and is intended to have substantial political consequences.” Gaffney, 412 U.S. at 753. But a state does not have carte blanche to draw district lines free from constitutional constraints. See id. at 754 (“What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment.”); Gomillion, 364 U.S. at 345 (refusing to “sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions”); cf. Rutan, 497 U.S. at 64 (“To the victor belong only those spoils that may be constitutionally obtained.”). The fact that the government makes political choices in districting does not carry with it a license to subordinate a group of voters and dilute their right to vote because of their political affiliation.
Republican principles embedded in the Constitution’s text and structure, fundamental First Amendment principles that safeguard freedom of political association, and equal protection principles that ensure equal rights under the law for all persons, regardless of their political convictions—principles deeply rooted in the Constitution’s text and history and reaffirmed time and again in this Court’s precedents—do not permit the government to use its power over the districting process to give disproportionate political power to a group of citizens based on their political association and views. This “ingrained structural inequality,” Evenwel, 136 S. Ct. at 1123— like the malapportionment invalidated in Reynolds and the cases that followed it—singles out a group of citizens and dilutes and debases their right to vote in a manner manifestly inconsistent with the Constitution’s guarantees and our Constitution’s system of

29
fair and effective representation. “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.” Reynolds, 377 U.S. at 567. The fact that an individual belongs to one political party or another “is not a legitimate reason for . . . diluting the efficacy of his vote.” Id.; Carrington v. Rash, 380 U.S. 89, 94 (1965) (“‘Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”); Appellees’ Br. at 34-35.
The government may not debase and dilute the voting rights of those who do not “conform . . . to some state-selected orthodoxy,” Rutan, 497 U.S. at 75, denying these citizens “an equally effective voice in the election of members of his state legislature,” Reynolds, 377 U.S. at 565. Efforts to “fenc[e] out of the political process” certain “political groups” by “invidiously minimiz[ing]” their “political strength,” Gaffney, 412 U.S. at 754, and to “tip[] the electoral process in favor of the incumbent party,” Elrod, 427 U.S. at 356, cannot be squared with the Constitution’s text and history or this Court’s precedents. The fact that one party controls state government at the beginning of a decade does not give it license to entrench itself in power for the rest of the decade. Ultimately, “the basic principle of representative government remains . . . unchanged,” Reynolds, 377 U.S. at 567—“‘the voters should choose their representatives, not the other way around,’” Ariz. State Legislature, 135 S. Ct. at 2677 (citation omitted).
Given these fundamental constitutional principles, “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring); Gaffney, 412 U.S. at 752 (“It would be idle . . . . to

30
contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it.”). The fact that a state legislature drew district lines with political considerations in mind is the beginning, not the end, of the analysis. “The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group’s representational rights.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring). In other words, there must be a showing that “partisan classifications burden[] rights of fair and effective representation.” Id. at 312 (Kennedy, J., concurring). This requires concrete evidence demonstrating that a partisan gerrymander has the purpose and effect of subordinating adherents of a political party and severely limiting the effectiveness of their votes, conferring legislative power far in excess of votes cast at the polls. It requires showing that the partisan gerrymander unjustifiably obstructs the basic workings of representative government, “subjecting a group of voters or their party to disfavored treatment by reason of their views.” Id. at 314 (Kennedy, J., concurring). These inquiries “limit and confine judicial intervention,” establishing “clear, manageable, and politically neutral standards,” Vieth, 541 U.S. at 307, 308 (Kennedy, J., concurring), for separating ordinary political line drawing from unconstitutional efforts to degrade and dilute a group of voters’ opportunities to elect representatives on account of their political affiliation. See Appellees’ Br. at 32-56; Amicus Br. of Bernard Grofman and Ronald Keith Gaddie at 4-22.
This high threshold is satisfied here. Republicans in control of the districting process drafted a plan that was designed to ensure Republican control of the State Assembly, even in the face of political shifts in

31
their opponents’ favor. Meeting in secret, Republican leaders and their experts rigorously tested their preferred lines, seeking to ensure that Republicans would maintain their power whatever happened at the polls. As the district court found, “[t]he evidence establishes . . . that even when Republicans are an electoral minority, their legislative power remains secure.” J.S. App. at 154a. The mountain of evidence introduced at trial confirms that the tests the mapmakers used were designed to ensure a durable proRepublican bias. The plan’s design and effect was to “sanction minority control of state legislative bodies,” Reynolds, 377 U.S. at 565, turning on its head our Constitution’s system of representative government. A state cannot use its considerable power to draw lines to nullify the fundamental principles at the core of our Constitution’s system of government.
Judicial relief is thus warranted here. “[W]hen the rights of persons are violated, ‘the Constitution requires redress by the courts’ . . . . The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.” Obergefell, 135 S. Ct. at 2605 (quoting Schuette, 134 S. Ct. at 1637). Although this case, like many others, is undeniably sensitive and demands careful judgment, “this is what courts do.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012); Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy, J., concurring) (“[T]he judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.”).

32
Application of these principles is exceptionally important to redress “unconstitutional bias in apportionment” because ‘the right to vote’ is one of ‘those political processes ordinarily to be relied upon to protect minorities,’” Vieth, 541 U.S. at 311, 312 (Kennedy, J., concurring) (quoting Carolene Prods., 304 U.S. at 153 n.4), and ensure that legislative bodies “are collectively responsive to the popular will,” Reynolds, 377 U.S. at 565. Because Wisconsin’s partisan gerrymander subordinates adherents of one political party, burdens their representational rights, and dilutes and degrades their right to vote, the district court’s judgment should be affirmed.

CONCLUSION
For the foregoing reasons, the judgment of the district court should be affirmed.
Respectfully submitted,

ELIZABETH B. WYDRA BRIANNE J. GOROD* DAVID H. GANS CONSTITUTIONAL
ACCOUNTABILITY CENTER 1200 18th Street NW
Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org

Counsel for Amici Curiae

September 5, 2017

* Counsel of Record

APPENDIX

1A APPENDIX: LIST OF AMICI
Campbell, Tom Former Representative of California
Carbajal, Salud Representative of California
Castro, Joaquin Representative of Texas
Clarke, Yvette D. Representative of New York
Clyburn, James E. Representative of South Carolina
Cohen, Steve Representative of Tennessee
Conyers, John, Jr. Representative of Michigan
Espaillat, Adriano Representative of New York
Garamendi, John Representative of California
Gutiérrez, Luis Representative of Illinois
Heck, Denny Representative of Washington
Huffman, Jared Representative of California

2A LIST OF AMICI – cont’d
Jackson Lee, Sheila Representative of Texas
Jayapal, Pramila Representative of Washington
Jeffries, Hakeem Representative of New York
Johnson, Henry C. “Hank” Jr. Representative of Georgia
Khanna, Ro Representative of California
Lee, Barbara Representative of California
Lieu, Ted Representative of California
Lofgren, Zoe Representative of California
McCollum, Betty Representative of Minnesota
Moore, Gwen Representative of Wisconsin
Morella, Constance Former Representative of Maryland
Nadler, Jerrold Representative of New York

3A LIST OF AMICI – cont’d
Norton, Eleanor Holmes Representative of the District of Columbia
Pallone, Frank, Jr. Representative of New Jersey
Payne, Donald M., Jr. Representative of New Jersey
Pelosi, Nancy Representative of California
Perriello, Tom Former Representative of Virginia
Porter, John Edward Former Representative of Illinois
Richmond, Cedric Representative of Louisiana
Scott, Robert C. “Bobby” Representative of Virginia
Skaggs, David Former Representative of Colorado
Smith, Peter Former Representative of Vermont
Soto, Darren Representative of Florida
Swalwell, Eric Representative of California

4A LIST OF AMICI – cont’d
Thompson, Mike Representative of California
Walsh, James T. Former Representative of New York
Welch, Peter Representative of Vermont

 
 No. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., Appellants,
v.
WILLIAM WHITFORD, ET AL., Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF FOR AMICI CURIAE BIPARTISAN GROUP OF 65 CURRENT AND
FORMER STATE LEGISLATORS IN SUPPORT OF APPELLEES

September 5, 2017

VINCENT LEVY Counsel of Record
GREGORY DUBINSKY MATTHEW V.H. NOLLER KEVIN D. BENISH TIMOTHY W. GRINSELL HOLWELL SHUSTER &
GOLDBERG LLP 750 Seventh Avenue New York, NY 10019 (646) 837-5151 vlevy@hsgllp.com
Counsel for Amici Curiae

TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION AND SUMMARY OF THE ARGUMENT................................................................ 5
ARGUMENT ...............................................................8
I. Partisan Gerrymandering Is A Powerful Tool For Systematically Shutting Out The Opposing Party .................................................8
II. Modern-Day Partisan Gerrymandering Has Caused Breakdowns In The Political Process ............................................................15
A. Partisan Gerrymandering Breeds Polarization And Discourages Cooperation Among Legislators.....................................15
B. Partisan Gerrymandering Leads To Legislators Who Do Not Or Cannot Represent Their Constituents ..................18
1. Partisan Gerrymandering Limits Legislators’ Accountability ..................19
2. Partisan Gerrymandering Harms Representation By Dividing Communities ........................................21
C. Partisan Gerrymandering Is A Substantial Cause Of The Dysfunction Of Contemporary Politics...............................25
III.Only This Court Can Redress The Damage Caused By Partisan Gerrymandering ...........28
CONCLUSION ..........................................................31
APPENDIX ................................................................32

ii
TABLE OF AUTHORITIES
Cases Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n,
135 S. Ct. 2652 (2015) ............................ 8, 15, 18, 29 Benisek v. Lamone,
No. JKB-13-3233 (D.Md. Aug. 24, 2017) ....... passim Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ..................................................5 Davis v. Bandemer,
478 U.S. 109 (1986) ..........................................15, 22 Gray v. Sanders,
372 U.S. 368 (1963) ................................................28 Harper v. Va. Bd. of Elections,
383 U.S. 663 (1966) ................................................28 Hooker v. Ill. State Bd. of Elections,
63 N.E.3d 824 (Ill. 2016)........................................30 Hulme v. Madison Cnty.,
188 F. Supp. 2d 1041 (S.D. Ill. 2001) ....................14 In re Senate Joint Resolution of Legislative
Apportionment 1176, 83 So. 3d 597 (Fla. 2012)........................................29 Karcher v. Daggett, 462 U.S. 725 (1983) ................................................22 LULAC v. Perry, 548 U.S. 399 (2006) ............................................5, 21 McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) ....................................................5 Miller v. Johnson, 515 U.S. 900 (1995) ................................................20

iii
Reynolds v. Sims, 377 U.S. 533 (1964) .................................. 5, 8, 15, 28
Schuette v. BAMN, 134 S. Ct. 1623 (2014) ............................................25
Terry v. Adams, 345 U.S. 461 (1953) ............................................5, 28
Vandermost v. Bowen, 269 P.3d 446 (Cal. 2012) ........................................29
Vieth v. Jubelirer, 541 U.S. 267 (2004) ........................................ passim
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016)...................28
Wyman v. James, 400 U.S. 309 (1971) ..................................................5
Constitutional Provisions Ohio Const. art. II, § 10.............................................18 Pa. Const. art. 2, § 17 ..................................................3
Other Authorities Aaron Marshall, GOP-Drawn Legislative Map
Makes Republicans a Virtual Lock to Hold Ohio’s Legislature, Cleveland.com (Sept. 26, 2011), https://goo.gl/UPweJw .............................................. 3 Akhil Reed Amar, America’s Constitution: A Biography (2005) ....................................................18

iv
Anthony J. McGann et al., Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016) ...................................................9
Assembly Districts, Wis. State Leg., https://maps.legis.wisconsin.gov/ ........................... 22
Bernard Schoenburg, Unlawful Assembly, St. J.-Reg., Dec. 3, 2009 .........................................14
Comparison of Statewide Initiative Processes, Initiative & Referendum Inst., https://goo.gl/69LZ1R .......................................29, 30
Cynthia Canary & Kent Redfield, Partisanship, Representation and Redistricting: An Illinois Case Study, Simon Rev. (Sept. 2014), https://goo.gl/cv1ecA.............................................1, 9
Dan Boylan, Republicans Headed Toward Keeping Veto-Proof Majorities, News & Observer (Nov. 8, 2016), https://goo.gl/VKqz1m ..............................................2
David A. Lieb, Analysis: Voting District Lines Favor GOP, Detroit News (June 25, 2017), https://goo.gl/UcdLPN ............................................13
Devin Caughey et al., Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies, Election L.J. (forthcoming), https://goo.gl/Q7ZDbr ...............................................2

v
Editorial, Maryland Democrats’ Faux Redistricting Reform, Wash. Post (May 12, 2017), https://goo.gl/RaoYtW ............................................29
Editorial, Senate Redistricting Is A Poor Marriage, J. Times (July 13, 2011), https://goo.gl/dYuvrp .............................................. 24
Editorial, Too Many Voters Lost Between the Lines, Detroit Free Press (Feb. 11, 2011), https://goo.gl/83VU7q ............................................. 10
Editorial, Turn Back Secretive GOP Power Play, J. Sentinel (Feb. 5, 2017), https://goo.gl/pn6xkE .............................................28
Franklin County House Districts, Ohio Sec. of State, https://goo.gl/1mxZrz .............................................. 24
James Nord, After Repeal, Ethics Law Supporters to Push Ballot Amendment, Rapid City J. (Apr. 6, 2017), https://goo.gl/4HznMn ............................................ 30
Jason Zengerle, Is North Carolina the Future of American Politics?, N.Y. Times Magazine (June 20, 2017), https://goo.gl/C43fQb..........................................2, 26
Jim Siegel, Voters Approve Issue To Reform Ohio’s Redistricting Process, Columbus Dispatch (Nov. 4, 2015), https://goo.gl/aqRkeu................................................3
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) ...........................................28
Justin Levitt, Brennan Ctr. for Justice, A Citizen’s Guide to Redistricting (2010).................................14

vi
Laura Leslie, House GOP Seeks to Impeach Secretary of State, WRAL.com (June 28, 2017), https://goo.gl/x54ZR8..............................................26
Laura Leslie, Senate Leader Defends Deep Cuts to AG’s Office, WRAL.com (June 22, 2017), https://goo.gl/f1NxD9 .............................................27
Legislative Districts of Illinois, Ill. State Board of Elections, https://goo.gl/JdKhcp .............................................. 25
Len Lazarick, New Legislative Map Targeting Republicans, Daily Record (Dec. 19, 2011), https://goo.gl/vze2XL .............................................. 12
Malcolm E. Jewell, Representation in State Legislatures (1982) ................................................23
Maptitude for Redistricting Software, Caliper Corp., www.caliper.com/mtredist.htm ...............................9
Matthew DeFour, State Budget Impasse Escalates After Tense Negotiation Ends Abruptly, Wis. State. J. (June 28, 2017), https://goo.gl/gMYb4R......................................25, 26
Michael Collins, Legislature May Step Up Partisan Warfare at State House, MarylandReporter.com (Jan. 2, 2017), https://goo.gl/VEFXsc.........................................1, 11
Michigan State Senate Elections, 2014, Ballotpedia, https://goo.gl/xfca42 .................................................. 2

vii
Mike Wereschagin, The House Always Wins, Caucus, Jan. 24, 2017 ..............................................3
National Democratic Redistricting Committee, https://www.democraticredistricting.com .............10
Nicholas O. Stephanopoulos, Spatial Diversity, 125 Harv. L. Rev. 1903 (2012) ...............................23
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).............................9, 10
Patrick Marley & Jason Stein, GOP Lawmakers to Write Blank Check to Hire Lawyers, J. Sentinel (Feb. 2, 2017), https://goo.gl/mVhZVs......................................27, 28
Redistricting Majority Project, http://www.redistrictingmajorityproject.com ........ 10
Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28 (2004) ...................................16
Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593 (2002) .................................18
Samuel S.-H. Wang, Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, 15 Election L.J. 367 (2016) ................................9, 10
Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263 (2016)....................................9

viii
Tim Cullen & Dale Schultz, We Led the Wisconsin Senate. Now We’re Fighting Gerrymandering in Our State, Wash. Post (June 20, 2017), https://goo.gl/eXLecW ............................................... 4

INTEREST OF AMICI CURIAE
Amici are a bipartisan collection of 65 current and former state legislators, 26 Republicans and 39 Democrats, from the following eight States, all of which have suffered from partisan gerrymandering:
Wisconsin. Before Republicans’ 2011 redistricting plan, competitive districts were the norm in Wisconsin. Control of one of the two legislative houses changed hands in four out of the five elections that took place between 2002 and 2010. In 2012, after the recent gerrymander, a majority of Wisconsin voters favored Democrats in state legislative races, but Republicans captured 60 of the 99 Assembly seats. In 2016, Democrats and Republicans were virtually tied, yet Republicans increased their majority in the Assembly to 64 seats. These election results reflect the partisan gerrymander that is the subject of this lawsuit.
Illinois. In recent years, both the Democratic and Republican parties have drawn maps that “maximize[] partisan advantage.” Cynthia Canary & Kent Redfield, Partisanship, Representation and Redistricting: An Illinois Case Study 12, Simon Rev. (Sept. 2014), https://goo.gl/cv1ecA. Democratic map-drawers were the latest to do so, drawing maps in 2011 that permitted them to win 60% of all House seats and 68% of Senate seats in 2012, with just 52% of the vote in the state House elections and 54% in state Senate elections—a significant improvement on their results under the previous map. Id. at 20.
Maryland. Democrats threatened in 2006 to “bury the Republicans,” Michael Collins, Legislature May Step Up Partisan Warfare at State House,

2

MarylandReporter.com

(Jan.

2,

2017),

https://goo.gl/VEFXsc. Through redistricting, they

did. Democrats drew maps in 2011 that reflected the

“specific[] inten[t] to dilute the effectiveness of

Republican voters.” Benisek v. Lamone, No. JKB-13-

3233, slip op. at 25 (D. Md. Aug. 24, 2017) (Niemeyer,

J., dissenting). As a result, Democrats today enjoy

vetoproof majorities in both chambers of the state

legislature, holding 70% of the seats in the state

Senate and roughly 64% of the seats in the House of

Delegates.

Michigan. In 2012 and 2014, Democratic candidates received a majority of the votes in elections for the Michigan House of Representatives, but Republicans won a majority of the seats. Caughey et al., supra (manuscript at 26). And in the 2014 state Senate elections, Republicans received a bare majority of votes—less than 51%—but won 71% of the seats. See Michigan State Senate Elections, 2014, Ballotpedia, https://goo.gl/xfca42 (last visited Aug. 30, 2017).

North Carolina. North Carolina’s state legislative districts are “some of the most egregiously gerrymandered” in the country. Jason Zengerle, Is North Carolina the Future of American Politics?, N.Y. Times Magazine (June 20, 2017), https://goo.gl/C43fQb. This gerrymander has allowed Republicans to maintain supermajorities in the state General Assembly and Senate since 2013. Id.; see Dan Boylan, Republicans Headed Toward Keeping VetoProof Majorities, News & Observer (Nov. 8, 2016), https://goo.gl/VKqz1m.

Ohio. The 2011 lines, which the state apportionment board approved on a party-line vote,

3
gave Republicans “a virtual lock” on the state legislature for a decade. Aaron Marshall, GOP-Drawn Legislative Map Makes Republicans a Virtual Lock to Hold Ohio’s Legislature, Cleveland.com (Sept. 26, 2011), https://goo.gl/UPweJw. In 2015, voters fed up with Ohio’s “hyper-partisan process for drawing legislative districts” approved a ballot initiative to reform the redistricting process for state elections. The changes go into effect in 2021. Jim Siegel, Voters Approve Issue To Reform Ohio’s Redistricting Process, Columbus Dispatch (Nov. 4, 2015), https://goo.gl/aqRkeu.
Pennsylvania. Legislative district lines in Pennsylvania are drawn by a five-member commission, four of whom are the majority and minority leaders of the state House and Senate. Pa. Const. art. 2, § 17(b). Those four members select the fifth member, who serves as chair. Id. If they are unable to agree on the chair, as has happened in every election cycle since the commission’s creation, the elected members of Pennsylvania’s State Supreme Court, “which has its own partisan balance of power, select[] the chair.” Mike Wereschagin, The House Always Wins, Caucus, Jan. 24, 2017, at 6. The result is that one party controls the commission and draws lines for political gain. In 2011, Republicans controlled redistricting and used it to “lock[] down [their] hold on the Legislature.” Id. In the 2016 elections, Republicans received 53% of the vote for the state House but won 60% of the seats. Id.
Rhode Island. State legislative district lines in Rhode Island are drawn by the political party that controls the legislature. In 2011, Democrats, who controlled both the state Senate and General

4
Assembly, created an “advisory commission” to help draw legislative boundaries and appointed 14 of the 18 members of that body, giving Republicans only one-ninth of the redistricting commission seats. The electoral maps that were subsequently enacted left Democrats in Rhode Island with an outsized role in the state legislative process. As of 2017, Democrats hold 86% of the state Senate seats and 84% of the seats in the General Assembly.
** *
Amici served during or after the relevant gerrymandering in these States occurred, or have otherwise seen firsthand the harm that gerrymandering has inflicted upon the political process in their States. Many Amici are or have been involved in efforts to reform their States’ redistricting procedures. See, e.g., Tim Cullen & Dale Schultz, We Led the Wisconsin Senate. Now We’re Fighting Gerrymandering in Our State, Wash. Post (June 20, 2017), https://goo.gl/eXLecW. All Amici have an interest in this case, which presents the Court with an opportunity to repair the damage partisan gerrymandering has caused to democracy throughout the United States.
A full list of Amici, with their respective States of service and party affiliation, is set forth in the Appendix.1
1 All parties have filed blanket consents to the filing of amicus briefs. No counsel for a party authored this brief in whole or in part, and no person other than Amici’s counsel made a monetary contribution to fund the preparation or submission of this brief.

5
INTRODUCTION AND SUMMARY OF THE ARGUMENT
“The first instinct of power is the retention of power.” McConnell v. Fed. Election Comm’n, 540 U.S. 93, 263 (2003) (Scalia, J., dissenting in part), overruled in part by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). True to that axiom, those in power have developed a seemingly infinite number of tools to insulate themselves from the will of the people. Some have manipulated the process by which candidates are nominated. Terry v. Adams, 345 U.S. 461 (1953). Others have diluted the voting strength of voters they do not like. LULAC v. Perry, 548 U.S. 399 (2006); Reynolds v. Sims, 377 U.S. 533 (1964). And, as in this case, yet others have “rigg[ed] elections,” plain and simple, by designing legislative districts that ensure their political party never loses majority control. Vieth v. Jubelirer, 541 U.S. 267, 317 (2004) (Kennedy, J., concurring) (internal quotation marks omitted).
The single-minded quest to obtain and retain political power at the expense of the will of the people, to quote Lord Acton’s famous dictum, “tends to corrupt.” Wyman v. James, 400 U.S. 309, 395 (1971) (Douglas, J., dissenting). Few tools for political entrenchment have corrupted our democracy more than modern-day gerrymanders designed to entrench legislators along party lines. This brief describes some of these effects, often in Amici’s own words.
First, although appellants and some of their amici make much hay out of the assertion that partisan gerrymandering is as old as the Republic, the truth is that in recent years the two major political parties, leveraging the technologies of the modern age, have

6
intentionally and systematically excluded each other from state legislatures like never before. In Amici’s States, Democrats rigged the maps in Illinois, Maryland, and Rhode Island, while Republicans did so in Wisconsin, Michigan, Ohio, Pennsylvania, and North Carolina. This was done to entrench one party at the expense of the other, not to enact policy beneficial to the people.
Second, Amici’s experience is that this partisan gerrymandering has, in their States and across the Nation, sounded the death-knell of bipartisanship. When maps have been gerrymandered, candidates and legislators need worry only about primaries, which are increasingly won by politicians who cater to the far ends of the ideological poles. The result is that politicians inclined toward collaboration and bipartisanship, like Amicus Evan Goyke, serve under “a cloud of uncertainty” because any legislator who reaches across the aisle is in grave danger of being defeated in the next primary. As Amicus Daylin Leach puts it, “cooperation is heresy.”
This lack of cooperation breeds distrust, dysfunction, and hostility. At best, Amicus Leach says, members of opposing parties ignore each other like boys and girls at “an eighth-grade dance.” At worst, they war like the Montagues and Capulets: “I’ll f––– any Republican I can,” an Illinois Democrat in charge of redistricting once hectored a Republican colleague. The resulting malice and dysfunction are precisely the opposite of the ideal to which our democracy aspires.
Third, partisan gerrymandering has seriously damaged the relationship between legislators and the people they are sworn to represent. As those in power

7
grow accustomed to choosing their own voters, they stop treating the people as constituents to whom they must answer. Meanwhile, legislators in safe districts ignore constituents who support the other party because the only election that matters is the primary. Indeed, listening to those constituents creates unpalatable risks in the next primary. The result: Legislators avoid public events, hide government operations from the public eye, and, in the words of Amicus Kathleen Clyde, “belittle” and “mock” constituents who oppose their policies.
Even well-intentioned legislators may find it impossible to represent their constituents effectively. Gerrymandered districts often divide communities, making it next to impossible for legislators to represent community interests, and leaving voters confused about who their representatives are. Amicus Amy Sue Vruwink recounts how, after her district was redrawn, former constituents continued calling her for help, not realizing they had been gerrymandered out of her district. Other Amici describe how difficult it is for legislators to do their jobs when diverse communities with conflicting interests are grouped together.
The result of all this is that legislatures in many States are broken. This can be seen perhaps most starkly in North Carolina, where senators from the majority party recently attacked political opponents by cutting education funding from their rivals’ districts. There are many other less obvious but equally damning examples in Amici’s States of legislatures that no longer operate the way they should.

8
As Amici attest, modern-day gerrymandering by both parties represents a grave and growing threat to the Constitution’s vision of democracy. The Court has not hesitated to step in when incumbents seek to entrench themselves at voters’ expense or otherwise disenfranchise those they do not like. E.g., Reynolds, 377 U.S. at 533. As in other cases where our democracy has been structurally warped, the problem of political gerrymandering cannot be solved through the ordinary political process. The Court should take this opportunity to enforce “the core principle of republican government, namely, that the voters should choose their representatives, not the other way around.” Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (internal quotation marks and citation omitted).
ARGUMENT
I. Partisan Gerrymandering Is A Powerful Tool For Systematically Shutting Out The Opposing Party.
In today’s data-driven era, legislators who wish to secure their party’s hold on power need only reach out for the block-by-block voter information and sophisticated computer programs that are both widely available. Armed with these tools, parties can solidify their electoral fortunes for years. The siren’s call of this power is impossible for any self-interested politician to resist, and so it is no surprise that partisan gerrymandering is pervasive.
A. The information age has supercharged partisan gerrymandering. For a long time, the practice was ad hoc and largely ineffective, generating minor effects that were unlikely to persist across

9

election cycles. Nicholas O. Stephanopoulos & Eric M.

McGhee, Partisan Gerrymandering and the Efficiency

Gap, 82 U. Chi. L. Rev. 831, 875 (2015). Today,

powerful software and detailed, block-by-block voter

data enable redistricting plans to give one party huge

partisan advantages that survive shifts in voter

preferences and demographics. E.g., Maptitude for

Redistricting

Software,

Caliper

Corp.,

www.caliper.com/mtredist.htm (last visited Aug. 30,

2017); Stephanopoulos & McGhee, supra, at 837-38;

see Dkt. 149:199-201. A robust body of empirical

research finds that “[t]he severity of today’s

gerrymandering is [] unprecedented in modern times.”

Stephanopoulos & McGhee, supra, at 836.2

To see how effectively partisan gerrymandering can insulate one party from voters, one need only consult how vote totals translate into seats in Amici’s gerrymandered States. Take, for example, the Wisconsin Assembly. In the 2012 elections, Democrats won their districts by an average vote share of 68.8%, which netted 39 Assembly seats, while Republicans were able to win far more seats (60) by creating districts with a smaller, but still comfortable, margin of 59.7%. Wang, Application, at 380. Or consider Illinois, where in 2012 the winning candidate in all but 16 state House and Senate districts won with more than 55% of the vote. Canary & Redfield, supra,

2 See Anthony J. McGann et al., Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty 87 (2016); Samuel S.-H. Wang, Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, 15 Election L.J. 367, 380 (2016) (Wang, Application); Samuel S.-H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263, 1268 (2016) (Wang, Tests).

10

at 22-23. Or Michigan, where one party was guaranteed victory in 77% of the State’s House and Senate districts from 2001 to 2011. Editorial, Too Many Voters Lost Between the Lines, Detroit Free Press (Feb. 11, 2011), https://goo.gl/83VU7q. Or Pennsylvania, where, in the words of Amicus Sen. Daylin Leach, “the majority of incumbents could not lose now if they were convicted of treason.” See also Stephanopoulos & McGhee, supra, at 882-83; Wang, Application, at 378-81.

The power of modern partisan gerrymandering

explains why both major parties now devote so much

energy and money to the practice nationwide. Before

the 2010 elections, Republicans instituted

“REDMAP,” a program designed to create and

“solidify” Republican state and federal legislative

majorities “through the redistricting process.”

Redistricting

Majority

Project,

http://www.redistrictingmajorityproject.com (last

visited Aug. 30, 2017). In 2009-2010 alone, REDMAP

raised more than $30 million to draw favorable

district lines after the 2010 Census. Id. Democrats

have formed a similar group to focus on redistricting

after the 2020 Census. National Democratic

Redistricting

Committee,

https://www.democraticredistricting.com (last visited

Aug. 30, 2017).

B. Notwithstanding the unmistakable evidence and the District Court’s findings, the Wisconsin Legislature would have the Court believe that partisan gerrymandering is a noble exercise in local policymaking. Brief for Wis. State Sen. & Wis. State Assembly as Amici Curiae 5-6. In reality, maps have been redrawn in Wisconsin (and elsewhere) for one

11
reason and one reason alone: to keep the redistricting party in power.
In Wisconsin, Republicans drew the gerrymandered maps in what Amicus Sandy Pasch, a former Assembly Representative, calls a “very strange and secretive” process. Map-drawers worked behind closed doors at a law firm, with no input or involvement from Democrats. Republican legislators were required to sign “secrecy oaths” before they were allowed to see the new redistricting maps, and even then they were only shown the map for their specific district. And, when all was said and done, the maps were approved on undeviating party lines to secure an election-proof partisan advantage. Appellees’ Br. at 10. That is hardly the process a legislature would use if it were acting to make “tough value-laden decisions” as part of “the give-and-take of the legislative process.” Brief for Wis. State Sen. et al. at 8 (internal quotation marks omitted).
Partisan warfare similarly overshadowed any semblance of policymaking in other States’ redistricting processes. In Maryland, Democrats bragged that, in the post-2010 redistricting process, they would “bury the Republicans six feet deep, faces up, so they won’t come out for 20 years.” Michael Collins, Legislature May Step Up Partisan Warfare at State House, MarylandReporter.com (Jan. 2, 2017), https://goo.gl/VEFXsc.
And they did. As Judge Niemeyer recently observed, “the Maryland Democrats who were responsible for redrawing congressional districts in 2011 specifically intended to dilute the votes of Republicans . . . .” Benisek, slip op. at 25 (Niemeyer, J., dissenting). “[T]hey moved 360,000 persons

12
(roughly one-half of the District’s population) out of the former Sixth District . . . and simultaneously moved 350,000 into the ‘new’ Sixth District,” thereby “accomplish[ing] the single largest redistricting swing of one party to another of any congressional district in the Nation.” Id. at 25-26. These same tactics were used in redrawing the maps for the Maryland Legislature. Amicus Michael Malone, a Republican member of the Maryland House of Delegates, notes that “even after historic 2014 Republican membership gains in the Maryland House of Delegates and a Republican Governor being elected, Democrats still enjoy vetoproof majorities in both chambers of the Maryland Legislature today.”
In Ohio, the apportionment board that drew the State’s legislative districts in 2011 was made up of four Republicans and one Democrat. Amicus Representative Kathleen Clyde sat in for the Democratic member at a few board hearings and says that Democrats were “completely shut out of the process. Everything was done in back rooms and brought out at the very last minute with very little opportunity for public input.” Republicans now enjoy an unshakeable majority in the state legislature for the rest of the decade, simply because Republicans drew the district lines in their favor.
C. The raw power grab that underlies modern gerrymandering is perhaps most obvious when district lines are used to threaten or disempower individual political opponents. In Maryland, the Democratic House Speaker gerrymandered his strongest challenger (a Republican) into another district. Len Lazarick, New Legislative Map Targeting

13
Republicans, Daily Record (Dec. 19, 2011), https://goo.gl/vze2XL.
Similarly, in 1991, Michigan Republicans cut Amicus Rep. Dianne Byrum’s house from her district so precisely that she “could see [her former] district from [her] front door.” Ten years later, in the midst of the 2011 redistricting, a top Michigan Republican legislator showed two potential redistricting plans to Amicus Rep. Lisa Brown, the first (and, so far, only) Democrat to represent her district. One map kept Rep. Brown’s home in her district, and the other moved her into a predominantly Republican district. The lawmaker told Rep. Brown that, if she agreed to vote with Republicans, they would adopt the more favorable map. When she refused, the Republicans “gerrymandered [her] out of [her] district.” David A. Lieb, Analysis: Voting District Lines Favor GOP, Detroit News (June 25, 2017), https://goo.gl/UcdLPN. As Rep. Brown explains, the Republicans viewed her seat as “theirs.”
Rep. Pasch suffered a similar fate. In 2011, she ran against Republican Senator Alberta Darling in a recall election. In the midst of the recall race, mapdrawers “demolished” Rep. Pasch’s Assembly district by carving it into five new districts. After the gerrymander, her new district was 57% Republican, and a Republican won the new district in the 2012 election. Republican Assembly leaders later told Rep. Pasch that Senate Republicans demanded the changes to her district to “screw[]” her for “running against Alberta.” This was not an isolated incident. Shortly after the maps were drawn, a Republican Assembly leader approached Amicus Amy Sue

14
Vruwink, then a Democratic Representative, and bragged, “We f–––ed you. We f–––ed you good.”
Partisan rancor (and foul language) also dominated the 2001 redistricting of the County Board for Madison County, Illinois. Early in the process, the Democrat in charge of redistricting told a Republican colleague, “We are going to shove [the map] up your f––– ass and you are going to like it, and I’ll f––– any Republican I can.” Hulme v. Madison Cnty., 188 F. Supp. 2d 1041, 1051 (S.D. Ill. 2001) (internal quotation marks and citation omitted). At another meeting, he threatened a different Republican: “I’ll tell you right now, mother f–––r, if you open your mother f––– mouth, I’m gonna have your mother f––– ass moved out by the mother f–––g police.” Id. at 1050. And at the final meeting, after the Board approved the Democratic map, the Democratic leader publicly tore up a Republican-proposed map. Id. at 1051. This recalled Illinois’s 1981 state redistricting, which devolved into fisticuffs when a Republican Senator tried to charge at the Senate President, and a Democratic colleague stopped him with a punch to the jaw. Justin Levitt, Brennan Ctr. for Justice, A Citizen’s Guide to Redistricting 13 (2010); Bernard Schoenburg, Unlawful Assembly, St. J.-Reg., Dec. 3, 2009.
These episodes underscore an unassailable fact: Partisan gerrymanders in Wisconsin and elsewhere are not about policymaking. They are power’s means of preserving itself, reflecting an effort to reserve seats in the legislature for one party at the expense of the other. And they have pernicious effects on the political process in statehouses across the Nation.

15
II. Modern-Day Partisan Gerrymandering Has Caused Breakdowns In The Political Process.
“The object of districting is to establish ‘fair and effective representation for all citizens.’” Vieth, 541 U.S. at 307 (Kennedy, J., concurring) (quoting Reynolds, 377 U.S. at 565). The facts on the ground, however, establish that modern-day partisan gerrymanders intend to and do subvert the ideal of fair representation.
In Amici’s States, recent years have shown that partisan gerrymandering has contributed to a significant breakdown in democratic norms and governance. Legislatures have become ideologically polarized, beset by interpersonal rancor, and responsive only to a fraction of the electorate. Amici’s experiences confirm what this Court has recognized: Gerrymanders that are systematically designed to put one party in power no matter the will of the people “are incompatible with democratic principles.” Ariz. State Leg., 135 S. Ct. at 2658 (alterations and internal quotation marks omitted).
A. Partisan Gerrymandering Breeds Polarization And Discourages Cooperation Among Legislators.
1. Partisan gerrymanders create “safe” districts for parties, with the result that the composition of state legislatures becomes more polarized. To see why that is so, consider the way gerrymanderers achieve their objective of reserving districts along party lines: Draw a small number of districts the opposing party will win by lopsided margins, and draw a large number of districts the redistricting party will win by narrower margins. Davis v. Bandemer, 478 U.S. 109,

16
115-17 & n.6 (1986). This process creates an overwhelming number of safe districts, with the gerrymandering party guaranteed to win in a majority of districts and the other party guaranteed to win in a minority.
Candidates in safe, gerrymandered districts are bound to appeal to primary voters, who tend to be farther from the ideological center. Once a candidate is selected as the party’s standard-bearer, the fix is in. In the general election, members of the majority party reliably support their party’s candidate, and candidates in safe districts therefore need not and do not temper their views. Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 114-15 (2004).
The absence of competitive districts thus leads to legislators who do not reflect the ideological preferences of the people they represent. Consider a district composed of 60% Republicans and 40% Democrats, who reliably vote for their respective parties. Barring an extraordinary event, the district is safely Republican. To win the Republican primary, a candidate need only win votes from just over 30% of the total voters. In our two-party system, cross-party voting is relatively uncommon, and the smart candidate understands that his political fortunes depend on responsiveness to the 30% needed to win the primary—and nothing else.
2. Just as candidates in a gerrymandered district have little incentive to appeal to moderate voters in general elections, legislators in a gerrymandered State also have little incentive to cooperate with the opposing party or to endorse more moderate policies once they are in office. Quite the

17
opposite. “It’s like an eighth-grade dance,” says Sen. Leach. “When you go to a dinner, the Democrats are sitting on one side of the room, and the Republicans are sitting on the other. It’s embarrassing.”
Amici explain that in many of their States, earning a reputation for bipartisanship is the surest way to lose the next primary—and their seat. “Cooperation is heresy,” Sen. Leach says. He describes multiple meetings with Republicans who say they cannot help him with legislation—even legislation they support—because, they say, “I’ll get a primary, and my district is drawn in such a way that I couldn’t survive that.” Amicus Evan Goyke, a Democratic Representative in the Wisconsin Assembly, serves under “a cloud of anxiety” because he has been told that he is too willing to cooperate with Republicans. Other Democrats have told him that “working with Republicans is a negative,” and threaten that he will face a primary challenger unless he “give[s] the[] [Republicans] hell and never give[s] an inch.”
In many States, the decline of bipartisanship means that representatives from the minority party— and, therefore, their constituents—are shut out of the legislative process. Following the redistricting in Wisconsin, Republican lawmakers enacted new rules that limit Democrats’ ability to speak on legislation and refused to consider Democrat-sponsored amendments. As Rep. Pasch puts it, “Not only could [Democrats] not legislate, now we could not speak.”
Similarly, Rep. Clyde reports that Democrats in Ohio are not allowed to send newsletters to their constituents until Republican leaders review them, whereupon they sometimes require the removal of content critical of Republican legislators or policies.

18
Republican leaders also regularly prohibit Democrats from reserving committee rooms at the state capitol building for informational meetings, and refuse to publish Democrats’ notes of protest in the legislative record, despite the Ohio Constitution’s guarantee that protests “shall, without alteration, commitment, or delay, be entered upon the journal.” Ohio Const. art. II, § 10.
B. Partisan Gerrymandering Leads To Legislators Who Do Not Or Cannot Represent Their Constituents.
“‘The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people.’” Ariz. St. Leg., 135 S. Ct. at 2674-75 (quoting The Federalist No. 37, at 223 (C. Rossiter ed. 1961) (James Madison)). Sovereignty under our Constitution ultimately rests with the people, and it is to the people that legislators must be held accountable. See Akhil Reed Amar, America’s Constitution: A Biography 5, 10-13 (2005).
Modern-day partisan gerrymanders undermine the ideal of accountable legislators by entrenching a party in power regardless of whether it enjoys overall support among the State’s voters. Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 616 (2002). As in Michigan, extreme gerrymanders can even provide majority control to “a party that enjoys only minority support among the populace.” Vieth, 541 U.S. at 360 (Breyer, J., dissenting). Even in States where the results are not as stark as in Michigan, the effects of gerrymandered elections are perverse and pervasive.

19
Appellants and their amici contend that the Court should presume that legislators in gerrymandered districts are responsive to the concerns even of those who supported their opponents. Brief of Wis. State Sen. at 23-24.3 Although all politicians should strive to represent all their constituents, the reality in Wisconsin (and elsewhere) is otherwise, because gerrymandering gives legislators the incentive to ignore general-election voters who do not represent the views of their party. Judicial intervention is necessary precisely because gerrymandering subverts the ideal that legislators should represent all their constituents.
1. Partisan Gerrymandering Limits Legislators’ Accountability.
Partisan gerrymandering harms all voters. For the voters whose political power a partisan gerrymander aims to diminish, an inability to elect and influence legislators amounts to exclusion from the political process. These constituents have been silenced and deprived of an effective vote and voice in the legislative process—an unconstitutional burden on their “representational rights . . . for reasons of ideology, beliefs, or political association.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring).
The injury does not stop there. Gerrymandering causes legislators to treat even members of their own party in purely instrumental terms, moving them
3 This major premise underlies a number of their other arguments, including the assertion that there is no constitutional right to proportional representation. Brief of Wis. State Sen. et al. at 17-19. The harm of partisan gerrymandering is not the loss of proportional representation—it is the loss of any representation.

20
around the map as necessary to secure seats. This weaponization of demography robs voters of their agency and demeans their status as individuals with unique experiences, beliefs, and desires. In the words of Amicus Dale Schultz, formerly Wisconsin’s Republican Senate Majority Leader, “partisan gerrymandering dilutes democracy by taking away a voter’s ability to voice their particular beliefs to legislators who will acknowledge them.” Cf. Miller v. Johnson, 515 U.S. 900, 911-12 (1995) (requiring States to treat voters “as individuals, not as simply components of a racial, religious, sexual, or national class” (internal quotation marks omitted)). Gerrymandering thus impedes legislators from discharging their sacred trust—to work to improve the lot of all the people.
Wisconsin Amici detail the sad circumstances in their State, where legislators have stopped engaging with constituents. Amicus Mark Pocan, a Wisconsin Congressman who served in the State Assembly for fourteen years, explains that many state legislators “don’t want to engage with the public because they don’t want voters to know what’s actually going on in the statehouse.” Wisconsin legislators in safe seats entirely ignore communications from voters of the opposite party: Phone calls are disregarded, letters thrown away, emails deleted. They refuse to hold hearings where voters might challenge them, and they skip community events. Assembly leaders have gone so far as to bar citizens from bringing writing materials to the Assembly—not even “paper for their kids to doodle on,” according to Rep. Pasch. It is “an effort to silence and to control [constituents] in a very scary, nontransparent way.”

21
Amicus Rick Glazier, a former Representative in the North Carolina House, similarly describes a post-gerrymander legislature in which “anything of significance is drafted in secret” without an opportunity for public input and debate. The majority “want[s] public dissent limited . . . and they want to prevent the minority party from creating a record for future litigation.”
And in Ohio, legislators from the majority party are “very hostile to witnesses who oppose or are interested in their legislation,” Rep. Clyde says. Citizens “have the right to testify on these bills, and if they oppose a bill it is open season for [legislators] to belittle them, mock them, limit their time, interrupt them during their discussion, [and] apply rules to them that don’t apply to supporters of the legislation. Treating members of the public that way is outrageous.”
2. Partisan Gerrymandering Harms Representation By Dividing Communities.
Even when legislators want to represent their constituents, partisan gerrymandering can make it all but impossible. Although partisan gerrymandering does not always translate into oddly shaped districts, it often involves and requires dividing communities.4
4 See J.A. 49-56 (illustrating egregious instances in Wisconsin’s 2011 redistricting plan); see also LULAC, 548 U.S. at 441 (gerrymander “br[oke] apart a Latino opportunity district” and “creat[ed] an entirely new district that combined two groups of Latinos, hundreds of miles apart, that represent different communities of interest”); id. at 479-80 (Stevens, J., concurring in part and dissenting in part) (gerrymander “splintered and submerged” minority community into majority white districts);

22

These tactics—splitting up similar communities and

combining

disparate

communities—harm

representation and accountability in distinct but

related ways.

a. Representative “democracy can work well and fairly only when citizens have an opportunity to become familiar with their voting districts, where they must focus their political activities.” Davis, 478 U.S. at 173 n.13 (Powell, J., concurring in part and dissenting in part). But when gerrymandered district lines divide previously unified communities for partisan expediency, confusion arises among legislators and voters alike, making it difficult if not impossible for the well-intentioned legislator to represent his or her district.

For example, Rep. Vruwink served in the Wisconsin Assembly from 2003 until 2014. The 2011 redistricting changed her district (the 70th) from a compact square covering two counties to a long “staircase” cutting through parts of four. See Assembly Districts, Wis. State Leg., https://maps.legis.wisconsin.gov/ (last visited Aug. 29, 2017). Constituents she had represented from 2003 to 2010 would call her for constituent services, not realizing they had been removed from her district in 2011. Conversely, Sen. Leach describes a recent phone

Vieth, 541 U.S. at 340 (Stevens, J., dissenting) (gerrymander “split[] up towns and communities”); Davis, 478 U.S. at 176-77 (Powell, J., concurring in part and dissenting in part) (gerrymander “divid[ed] established communities” and “dissect[ed] counties into strange shapes lacking in common interests”); Karcher v. Daggett, 462 U.S. 725, 762-64 (1983) (Stevens, J., concurring) (gerrymander “disregard[ed] county boundaries” and packed Republicans into “long,” “twisted” districts containing segments of multiple counties).

23
call with a constituent, in which he explained that he is running for office in Pennsylvania’s 7th Congressional District. His constituent’s response: “Am I in the 7th District?”
Amicus Michael Curtin, a former Ohio House Representative, also describes the confusion his constituents experienced. While campaigning in 2012, Rep. Curtin went door to door to speak to numerous constituents who, after the 2011 gerrymander, did not know who their representative was and did not understand why their district lines had changed so much.
The damage caused by this confusion is evident. Amici from Wisconsin note a decline in new Democratic candidates willing to run for elected office, while in Maryland, there is “anecdotal evidence of Republicans not voting after the redistricting because of confusion or loss of interest.” Benisek, No. JKB-133233, slip op. at 56 (Niemeyer, J., dissenting).
b. Gerrymanders that divide communities, even when they do not cause confusion, create districts occupied by dissimilar voters whose interests may vary wildly. Nicholas O. Stephanopoulos, Spatial Diversity, 125 Harv. L. Rev. 1903, 1919 (2012). Representatives in such districts complain that they “‘simply [cannot] “represent” the views of . . . diverse groups when there are sharp conflicts.’” Id. at 1920 (quoting Malcolm E. Jewell, Representation in State Legislatures 117 (1982)); see also id. at 1945 (finding empirically that “representation [is] less responsive in . . . highly heterogeneous districts”). This is not just a matter of trying to represent an ideologically diverse constituency but also a serious practical concern; as Amicus David Parker, a former Republican

24
Representative from Pennsylvania, puts it, a district that covers multiple different communities “spreads you pretty thin and gives you less time to focus on each one.”
Rep. Curtin describes the senseless shape of his former district in Ohio as “a seahorse cut up by a boat propeller.” It begins in Marble Cliff, an affluent village in Franklin County. It separates Marble Cliff from its “sister city” Grandview Heights, with which it shares a school district, library district, and municipal services. The district juts southwest from Marble Cliff, then hooks east to capture low-income areas in southwest Columbus before trailing south into the sparsely populated areas north of Pickaway County. See Franklin County House Districts, Ohio Sec. of State, https://goo.gl/1mxZrz (last visited Aug. 29, 2017).
Similarly, Wisconsin’s 2011 gerrymander combined Racine and Kenosha into a single Senate district, forcing together the two cities, which have “separate school districts, separate newspapers, separate histories, and distinct and often separate goals,” while divorcing them from the rest of their counties. Editorial, Senate Redistricting Is A Poor Marriage, J. Times (July 13, 2011), https://goo.gl/dYuvrp.
South of the border in Illinois, redistricters showed a similar lack of respect for communities of interest. The 2011 gerrymander split Springfield into three pieces. One piece was placed into an Assembly District with Decatur, 40 miles to the east, and several rural areas in between, all of which have different social and economic characteristics. Decatur dominates the district, burdening voters in

25
Springfield and the rural areas. See Legislative Districts of Illinois, Ill. State Board of Elections, https://goo.gl/JdKhcp (last visited Aug. 29, 2017).
These sorts of divisions are the sine qua non of partisan gerrymandering. By drawing lines that divide communities to achieve political power, however, map-drawers leave community interests by the wayside.
C. Partisan Gerrymandering Is A Substantial Cause Of The Dysfunction Of Contemporary Politics.
In combination, the factors discussed above— seats reserved to ensure a majority for the redistricting party, hyper-partisan representatives, lack of cooperation in the statehouses, and district lines that divide communities—result in a toxic legislative environment. Legislators from different parties increasingly view one another with contempt, and the chief goal of politics is now tribalism, not public service. “[R]ational, civic discourse” is the best way “to form a consensus to shape the destiny of the Nation and its people.” Schuette v. BAMN, 134 S. Ct. 1623, 1637 (2014) (plurality opinion). Under political gerrymanders, however, partisan warfare is the lodestar, and the people are the losers.
In today’s troubled environment, legislation in Wisconsin is enacted, if at all, along party lines and solely to support party objectives. Just this past summer in Wisconsin, the State’s budget process “ground to a halt” after legislative relations among the Republicans themselves broke down. Matthew DeFour, State Budget Impasse Escalates After Tense Negotiation Ends Abruptly, Wis. State. J.

26
(June 28, 2017), https://goo.gl/gMYb4R. Despite this impasse—and the fact that Wisconsin state law required a new budget to be enacted by July 1—the Assembly Speaker expressed “no interest” in working with Democrats, with the consequence that Wisconsin is facing one of its worst budget delays in 40 years. Id.
Amicus Timothy Cullen, a former Wisconsin State Senator, notes that this trend pervades the lawmaking process in Wisconsin. The State historically established nonpartisan “study committees” every other summer to develop bipartisan legislation on complex issues concerning the environment, criminal justice, health care, and other matters, and these committees’ proposals generally became law with overwhelming bipartisan support. After the gerrymander, however, legislators are “not ever interested in gaining bipartisan support” and the study committees are no longer relied upon to craft bipartisan solutions. The result is that policy objectives that both parties support never become law.
In some States, the majority party has used its control of the legislature to vindictively target the minority or further entrench themselves in office— and often harm their opponents’ constituents in the process. Republican Senators in North Carolina recently “punish[ed]” Democrats who delayed budget legislation by “stripping $1 million in education funding from the[ir] districts.” Zengerle, supra. The state House also “slashe[d] the budgets” of the Democratic Governor and Attorney General, Laura Leslie, House GOP Seeks To Impeach Secretary of State, WRAL.com (June 28, 2017), https://goo.gl/x54ZR8, because “Republican leaders don’t agree with how [the Attorney General] is doing

27
his job,” Laura Leslie, Senate Leader Defends Deep Cuts to AG’s Office, WRAL.com (June 22, 2017), https://goo.gl/f1NxD9.
Less blatant but equally problematic: In Ohio, Rep. Clyde describes how “capital appropriations and general revenue funds [are] dispersed in a political way” to favor expenditures in Republican districts, which “put[s] people who are represented by Democratic representatives at a disadvantage.”
These measures were enacted by statute, albeit along party lines. But in gerrymandered States, majority parties also use procedural shenanigans to protect themselves from public scrutiny and debate with fellow legislators. Amicus Pam DeLissio, a State Representative from Pennsylvania, notes that her State’s “whole budget process often does not include Democrats at the negotiation table.” On a recent and controversial budget code bill, those in control of the process prevented members of the minority party from even reviewing the legislation until minutes before the vote. According to Rep. DeLissio, “when this legislation reached the floor, it passed with the bare majority of votes. There was no hearing on the bill. There was no conversation about this issue. This is what gerrymandering has done.” And in Wisconsin, Republican leaders used back-door methods to authorize the funding of an amicus brief in this case in support of appellants, at taxpayers’ expense and with no cap on fees, without debate or a vote on the statehouse floor. Patrick Marley & Jason Stein, GOP

28
Lawmakers to Write Blank Check To Hire Lawyers, J. Sentinel (Feb. 2, 2017), https://goo.gl/mVhZVs.5
III. Only This Court Can Redress The Damage Caused By Partisan Gerrymandering.
This Court has, on many occasions, been called upon to safeguard the democratic process from self-interested officeholders bent on manipulating elections. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 120-25 (1980); see, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 665-66 (1966) (poll taxes); Reynolds, 377 U.S. at 562-63 (malapportionment); Gray v. Sanders, 372 U.S. 368, 379-81 (1963) (vote weighting); Terry, 345 U.S. at 46970 (white primaries). Partisan gerrymandering warrants the same response. In this case, the District Court identified a standard that it found appropriately captured the partisan intent and effect of the Wisconsin gerrymander, Whitford v. Gill, 218 F. Supp. 3d 837, 884 (W.D. Wis. 2016), but whatever standard this Court adopts, judicial intervention is sorely needed.
The nature of partisan gerrymandering indeed ensures that it cannot be undone through ordinary politics. Legislators who benefit from the practice
5 “The plan was approved 5-3 by an Assembly committee and 3-2 by a Senate committee. All Republicans voted for it and all Democrats voted against it.” Id. The Assembly Minority Leader “asked that legislators hold a public meeting to discuss the plan before approving it, but Republicans rejected his suggestion and proceeded with their plan to hire the law firms behind closed doors.” Id. The editorial board of a newspaper that had previously endorsed Republican Governor Scott Walker criticized the decision for its secrecy and expense. Editorial, Turn Back Secretive GOP Power Play, J. Sentinel (Feb. 5, 2017), https://goo.gl/pn6xkE.

29
have no incentive to halt it, despite “the almost universal absence of those who will defend its negative effect on our democracy.” Benisek, No. JKB13-3233, slip op. at 27 (Niemeyer, J., dissenting). This state of affairs is self-perpetuating: Whichever political party controls redistricting can draw maps that guarantee it retains power until the next redistricting, at which point it can again draw maps that guarantee it retains power until the next redistricting, and on and on. See, e.g., Editorial, Maryland Democrats’ Faux Redistricting Reform, Wash. Post, May 12, 2017 (describing how Republicans’ proposal to create an independent redistricting commission was “killed in committee by Democrats” without a hearing).
True, voters in some States have tried in recent years to address partisan gerrymandering through reforms such as independent redistricting commissions and constitutional amendments. See Ariz. State Leg., 135 S. Ct. at 2658 (Arizona commission); In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 598-99 (Fla. 2012) (Florida constitutional amendment); Vandermost v. Bowen, 269 P.3d 446, 452 (Cal. 2012) (California commission). These recent initiatives demonstrate voter dissatisfaction with partisan gerrymandering. But they also underscore the necessity of judicial intervention because the reforms, while laudable, are not a realistic option in most States.
The majority of States do not have any mechanism for citizen-driven lawmaking initiatives. Comparison of Statewide Initiative Processes 1, Initiative & Referendum Inst., https://goo.gl/69LZ1R

30
(last visited Aug. 30, 2017). Even when such a mechanism is available, some States may not allow initiatives that address redistricting. See Hooker v. Ill. State Bd. of Elections, 63 N.E.3d 824, 825 (Ill. 2016) (holding that ballot initiative to create independent redistricting committee violated Illinois Constitution). And, in every State but California, the legislature can repeal laws passed by initiative. Initiative & Referendum Inst., supra, at 26-27; see James Nord, After Repeal, Ethics Law Supporters To Push Ballot Amendment, Rapid City J. (Apr. 6, 2017), https://goo.gl/4HznMn (discussing the South Dakota legislature’s repeal of an ethics law passed via ballot initiative).
The Court, by contrast, has the ability to craft a nationwide standard that will put partisan gerrymanderers in check. The Court is therefore in the best position to repair the damage partisan gerrymandering has done to the political process throughout the Nation.

31

CONCLUSION
The Court should affirm the judgment of the District Court.
Respectfully submitted,

September 5, 2017

VINCENT LEVY Counsel of Record
GREGORY DUBINSKY MATTHEW V.H. NOLLER KEVIN D. BENISH TIMOTHY W. GRINSELL HOLWELL SHUSTER &
GOLDBERG LLP 750 Seventh Avenue New York, NY 10019 (646) 837-5151 vlevy@hsgllp.com
Counsel for Amici Curiae

32
APPENDIX
Amici consist of the following current and former state legislators, all of whom are represented by counsel in their individual capacity only:
1. State Rep. Jimmy Anderson of Wisconsin (Democrat)
2. State Rep. Nickie J. Antonio of Ohio (Democrat)
3. U.S. Senator Tammy Baldwin of Wisconsin (Democrat, former member of the Wisconsin State Assembly)
4. Former State Rep. Mandela Barnes of Wisconsin (Democrat)
5. Former State Rep. Spencer Black of Wisconsin (Democrat)
6. State Senate Republican Leader William E. Brady of Illinois (Republican)
7. Former State Rep. Lisa Brown of Michigan (Democrat)
8. Former State Rep. Dianne Byrum of Michigan (Democrat)
9. State Rep. Kathleen Clyde of Ohio (Democrat)
10. State Sen. Michael Connelly of Illinois (Republican)
11. Former State Senate Majority Leader Timothy F. Cullen of Wisconsin (Democrat)
12. Former State Rep. Michael F. Curtin of Ohio (Democrat)
13. State Rep. Mary Jo Daley of Pennsylvania (Democrat)

33
14. Former State Rep. Chris Danou of Wisconsin (Democrat)
15. State Rep. Pamela A. DeLissio of Pennsylvania (Democrat)
16. Former State Rep. Margaret Dickson of North Carolina (Democrat)
17. State Rep. Scott Drury of Illinois (Democrat)
18. State Rep. Michael R. Fortner of Illinois (Republican)
19. Former State Sen. Linda Garrou of North Carolina (Democrat)
20. Former State Rep. Rick Glazier of North Carolina (Democrat)
21. State Rep. Evan Goyke of Wisconsin (Democrat)
22. State Rep. Abdullah Hammoud of Michigan (Democrat)
23. State Rep. Kevin Hertel of Michigan (Democrat)
24. Former Deputy Minority Leader Sen. Dawson Hodgson of Rhode Island (Republican)
25. State Rep. Jeanne M. Ives of Illinois (Republican)
26. Former State Rep. Andy Jorgensen of Wisconsin (Democrat)
27. Former State Sen. Franklin L. Kury of Pennsylvania (Democrat)
28. State Rep. Donna Lasinski of Michigan (Democrat)

34
29. Former State Rep. Joan W. Lawrence of Ohio (Republican)
30. State Sen. Daylin Leach of Pennsylvania (Democrat)
31. State Delegate Michael E. Malone of Maryland (Republican)
32. Former State Rep. David Martin of Wisconsin (Republican)
33. State Sen. Dan McConchie of Illinois (Republican)
34. State Sen. Karen McConnaughay of Illinois (Republican)
35. Former State Sen. Priscilla D. Mead of Ohio (Republican)
36. Congresswoman Gwen Moore of Wisconsin (Democrat, former member of the Wisconsin State Senate and State Assembly)
37. State Sen. Chris Nybo of Illinois (Republican)
38. State Rep. David S. Olsen of Illinois (Republican)
39. Dane County Executive Joe Parisi of Wisconsin (Democrat, former member of the Wisconsin State Assembly)
40. Former State Rep. H. Sheldon Parker, Jr., of Pennsylvania (Republican)
41. Former State Assembly Assistant Minority Leader Sandy Pasch of Wisconsin (Democrat)
42. Congressman Mark Pocan of Wisconsin (Democrat, former member of the Wisconsin State Assembly)

35
43. State Rep. Robert W. Pritchard of Illinois (Republican)
44. Former State Rep. Daniel P. Reilly of Rhode Island (Republican)
45. State Sen. Sue Rezin of Illinois (Republican)
46. State Sen. Dale A. Righter of Illinois (Republican)
47. State Sen. Chapin Rose of Illinois (Republican)
48. Former State Sen. Peggy A. Rosenzweig of Wisconsin (Republican)
49. State Sen. Joe Schiavoni of Ohio (Democrat)
50. Former State Rep. Marlin Schneider of Wisconsin (Democrat)
51. Former State Senate Majority Leader Dale W. Schultz of Wisconsin (Republican)
52. Former State Rep. David Segal of Rhode Island (Democrat)
53. Deputy State Senate Republican Leader Dave Syverson of Illinois (Republican)
54. State Sen. Heather Steans of Illinois (Democrat)
55. Former State Rep. David J. Steil of Pennsylvania (Republican)
56. Councilman Michael Stinziano of Ohio (Democrat, former member of the Ohio State House of Representatives)
57. State House Democratic Leader Fred Strahorn of Ohio (Democrat)

36
58. State Rep. Emilia Strong Sykes of Ohio (Democrat)
59. State Sen. Vernon Sykes of Ohio (Democrat) 60. Former State Sen. Daniel O. Theno of
Wisconsin (Republican) 61. State Sen. Jil Tracy of Illinois (Republican) 62. Former State Rep. Amy Sue Vruwink of
Wisconsin (Democrat) 63. State Sen. Chuck Weaver of Illinois
(Republican) 64. State Rep. Robert Wittenberg of Michigan
(Democrat) 65. Former State Rep. Mandy Wright of Wisconsin
(Democrat)

 
 dNo. 16-1161 IN THE
Supreme Court of the United States

BEVERLY R. GILL, ET AL., — v.—

Appellants,

WILLIAM WHITFORD, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF OF COMMON CAUSE AS AMICUS CURIAE IN SUPPORT OF APPELLEES

EMMET J. BONDURANT BONDURANT MIXSON
& ELMORE LLP 1201 West Peachtree St., NW
#3900 Atlanta, Georgia 30309
EDWIN M. SPEAS, JR. POYNER SPRUILL LLP 301 Fayetteville Street,
Suite 1900 Raleigh, North Carolina 27601

GREGORY L. DISKANT Counsel of Record
JONAH M. KNOBLER PETER A. NELSON ELENA STEIGER REICH PATTERSON BELKNAP WEBB
& TYLER LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000 gldiskant@pbwt.com

Counsel for Amicus Curiae

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS CURIAE ............................ 1
STATEMENT OF FACTS REGARDING THE COMMON CAUSE LITIGATION...................... 2 A. Partisan Politics in North Carolina.............. 3 B. The 2011 Plan................................................ 5 C. The 2016 Plan................................................ 6 D. Procedural History ........................................ 8
SUMMARY OF ARGUMENT .................................. 10
ARGUMENT ............................................................. 11
I. PARTISAN-GERRYMANDERING CLAIMS ARE JUSTICIABLE ......................................... 11 A. That Partisan Gerrymandering Is Old Does Not Immunize It From Attack ........... 12 B. Wisconsin’s “Manageable Standards” Argument Is A Red Herring........................ 14 C. The Political Question Doctrine Is Not A Suicide Pact ................................................. 16
II. THE FIRST AMENDMENT PROVIDES AN IDEAL FRAMEWORK FOR PARTISANGERRYMANDERING CLAIMS ...................... 18 A. Partisan Gerrymandering Violates the First Amendment ........................................ 19 B. The Common Cause Plaintiffs Advance A Distinct First Amendment Framework...... 22
III. COMMON CAUSE IS DIFFERENT FROM THIS CASE IN IMPORTANT WAYS .............. 26

ii
A. Partisan Gerrymanders In Federal Elections Raise Unique Concerns............... 26
B. Common Cause Contains Both Statewide And District-Specific Claims....................... 29
C. Common Cause Focuses On Different Social-Science Evidence .............................. 30
CONCLUSION ......................................................... 34

iii
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................. 19
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) .................................... 11, 17
Baker v. Carr, 369 U.S. 186 (1962) ............................ 12, 16, 18, 26
Bd. of Ed. v. Pico, 457 U.S. 853 (1982) .............................................. 20
Benisek v. Lamone, No. JKB-13-3233, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24, 2017)........................ 18, 20, 22, 23
Branti v. Finkel, 445 U.S. 507 (1980) ........................................ 21, 22
Brown v. Thomson, 462 U.S. 835 (1983) .............................................. 28
Common Cause v. Rucho, No. 1:16-cv-1026, 2017 U.S. Dist. LEXIS 30242 (M.D.N.C. Mar. 3, 2017) .............................. 8
Cook v. Gralike, 531 U.S. 510 (2001) ........................................ 27, 28

iv
Cooper v. Harris, 137 S. Ct. 1455 (2017) .............................. 4, 5, 6, 24
Cox v. Larios, 542 U.S. 947 (2004) .............................................. 15
Davis v. Bandemer, 478 U.S. 109 (1986) ........................................ 11, 22
Elrod v. Burns, 427 U.S. 347 (1976) ............................ 19, 21, 22, 25
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) .............................................. 24
Greensboro v. Guilford Cnty. Bd. of Elections, No. 1:15-cv-559, 2017 U.S. Dist. LEXIS 50064 (M.D.N.C. Apr. 3, 2017)............................... 4
Kusper v. Pontikes, 414 U.S. 51 (1973) .......................................... 21, 22
Lawrence v. Texas, 539 U.S. 558 (2003) .............................................. 13
LULAC v. Perry, 548 U.S. 399 (2006) .............................................. 12
Mahan v. Howell, 410 U.S. 315 (1973) .............................................. 28
Matal v. Tam, 137 S. Ct. 1744 (2017) .................................... 20, 21
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) .............................................. 24

v
N. Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) .................................. 4
Nixon v. United States, 506 U.S. 224 (1993) .............................................. 17
North Carolina v. Covington, 137 S. Ct. 2211 (2017) ............................................ 4
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .......................................... 13
Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016) .................................. 4
Reynolds v. Sims, 377 U.S. 533 (1964) .............................................. 16
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) .............................................. 20
Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) ................................................ 21
Shapiro v. McManus, 136 S. Ct. 450 (2015) ...................................... 12, 19
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) ................ 20, 22
U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) .................................. 27, 28, 31
Vieth v. Jubelirer, 541 U.S. 267 (2004) .......................................passim

vi
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) ..........passim
Constitutional Provisions, Statutes, and Rules
Sup. Ct. R. 37.6 ............................................................ 1
U.S. CONST. amend. I..........................................passim
U.S. CONST. art. I, § 2 .................................................. 8
U.S. CONST. art. I, § 4, cl. 1........................................ 27
Other Authorities
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 ELECTION L. J. (forthcoming 2017), http://bit.ly/2iseDia.................................... 31
THE FEDERALIST No. 1 (Alexander Hamilton).............................................................. 13
Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413 (1996) ............................... 24
Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 MICH. L. REV. (forthcoming Dec. 2017), http://bit.ly/2iahegE ...........................passim

vii
Justin Levitt, Intent Is Enough: Invidious Partisanship in Redistricting, 59 WM. & MARY L. REV (forthcoming 2017), http:// bit.ly/2weL9aK ................................... 23, 25, 30, 31
Mark Joseph Stern, North Carolina GOP Votes to Dilute Governor’s Power and Curtail Voting Rights—Again, SLATE, Apr. 12, 2017, http://slate.me/ 2otCHCp ................................................................. 4
Mark Joseph Stern, North Carolina Republicans’ Legislative Coup Is an Attack on Democracy, SLATE, Dec. 15, 2016, http://slate. me/2hKOJow .......................................................... 4
Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (3d ed. 1858) ........................................................ 27
2 THE WORKS OF ALEXANDER HAMILTON (Henry Cabot Lodge, ed. 1904) ............................ 13
9 THE WORKS OF JOHN ADAMS (C.F. Adams, ed. 1854) ......................................... 13
5 THE WORKS OF THOMAS JEFFERSON (P.L. Ford, ed. 1905) ............................................. 13
13 THE WRITINGS OF GEORGE WASHINGTON (W.C. Ford, ed. 1892)............................................ 13

INTEREST OF AMICUS CURIAE
Amicus Common Cause files this brief in support of Plaintiffs-Appellees William Whitford, et al.1
Founded in 1970, amicus is a nonprofit, nonpartisan organization dedicated to protecting and strengthening democracy and the democratic process. Amicus has, among other things, led the movement to lower the voting age to 18; led the coalition to enact Home Rule in Washington, D.C.; and spearheaded the passage of freedom-of-information laws, government-ethics laws, and laws permitting public financing of campaigns and limiting the corrupting influence of money in politics.
Partisan gerrymandering is an issue of longstanding interest to amicus. In 2008, it led a landmark California ballot initiative that put an independent citizens’ commission in charge of redistricting, ending partisan gerrymandering in that state. Since then, it has engaged in litigation and advocacy in opposition to political gerrymandering by both major parties, including before this Court. See, e.g., Brief of Amici Curiae Common Cause & Campaign Legal Center in Support of Petitioners, Shapiro v. McManus, No. 14990 (arguing that “the Maryland legislature…dis-
1 Pursuant to Sup. Ct. R. 37.6, amicus certifies that no counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus, its employees, or its counsel made a monetary contribution to the preparation or submission of this brief. All parties have consented to the filing of this brief.

2
criminat[ed] against Republican voters” in drawing Congressional districts).
Most importantly for present purposes, amicus is the lead plaintiff in Common Cause v. Rucho, No. 1:16-cv-1026 (M.D.N.C. filed Aug. 5, 2016) (“Common Cause”), a pending partisan-gerrymandering challenge to North Carolina’s 2016 Congressional redistricting plan. Discovery in Common Cause is complete, and the case is trial-ready. It may come before this Court as soon as this Term.
Amicus believes that the plaintiffs in this case have convincingly proven their claims and should prevail. They presented direct, “smoking gun” evidence that improper partisanship drove Wisconsin’s map-drawing process from start to finish. As amicus explains below, under well-settled First Amendment doctrine, that should be enough; plaintiffs’ quantitative evidence of the gerrymander’s severity and durability was just icing on the cake. But however the Court decides this appeal, it should not prejudge or foreclose other cases, such as Common Cause, that involve different facts, theories, and evidence.
STATEMENT OF FACTS REGARDING THE COMMON CAUSE LITIGATION
Below, amicus summarizes the sordid state of partisan politics in North Carolina; the egregiously partisan process that generated North Carolina’s 2016 Congressional Plan (the “2016 Plan”); and the progress of amicus’s lawsuit challenging that plan.

3
A. Partisan Politics in North Carolina
North Carolina is the archetypal “purple state”: its electorate is split down the middle. Results in statewide races reflect this. For the last four quadrennial elections, the chart below shows which party’s candidate won each top-tier statewide race and the margin of victory. The results are divided evenly (8– 7) between Republicans and Democrats. Eleven of the 15 races were won by single-digit margins, and three by less than half of a percentage point:
2004 2008 2012 2016
President R +12 D +0.4 R +2 R +4
U.S. Senate R +5 D +9 n/a R +6
Governor D +13 D +3 R +12 D +0.2
Lieut. Gov. D +13 D +5 R +0.2 R +7
But one would never guess this from the makeup of North Carolina’s legislature or its Congressional delegation. Its districts are so egregiously gerrymandered that the Republican Party commands veto-proof supermajorities in both legislative houses and a 10–3 supermajority in the State’s Congressional delegation. In recent months, Republicans have used this veto-proof control to further entrench themselves in power in a series of controversial party-line votes— for example, shifting the partisan makeup of the statewide and county Boards of Elections in Republi-

4
cans’ favor and placing a Republican in charge of the state Board of Elections during all even-numbered years (i.e., all years when major elections occur).2
This Court has struck down North Carolina’s district lines twice this year alone—but on the grounds of race, not partisanship. See Cooper v. Harris, 137 S. Ct. 1455 (2017) (affirming ruling that two districts in North Carolina’s 2011 Congressional map are racial gerrymanders); North Carolina v. Covington, 137 S. Ct. 2211 (2017) (summarily affirming Covington v. North Carolina, 316 F.R.D. 117 (M.D.N.C. Aug. 11, 2016), which ruled that 28 districts in North Carolina’s 2011 state House and Senate redistricting plans were racial gerrymanders). So have multiple lower courts. See Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016); Greensboro v. Guilford Cnty. Bd. of Elections, No. 1:15-CV-559, 2017 U.S. Dist. LEXIS 50064 (M.D.N.C. Apr. 3, 2017). Of course, in North Carolina, as elsewhere, there is an “inextricable link between race and [party] politics” because “the race of voters correlates with the selection of…candidates.” N. Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016) (quoting Thornburg v. Gingles, 478 U.S. 30, 62 (1986) (discussing North Carolina)), cert. denied, 137 S. Ct. 1399 (2017).
2 See Mark Joseph Stern, North Carolina Republicans’ Legislative Coup Is an Attack on Democracy, SLATE, Dec. 15, 2016, http://slate.me/2hKOJow; Mark Joseph Stern, North Carolina GOP Votes to Dilute Governor’s Power and Curtail Voting Rights—Again, SLATE, Apr. 12, 2017, http://slate.me/2otCHCp.

5
B. The 2011 Plan
This Court is familiar with the 2011 North Carolina Congressional plan (“2011 Plan”) from its recent decision in Cooper v. Harris. That plan was first used in the 2012 Congressional election. Even though the Democratic Party won the majority of the statewide Congressional vote that year, and even though North Carolina’s delegation had historically split 7–6 or 6– 7, the 2011 Plan resulted in a 9–4 partisan advantage for Republicans. After the 2014 election, that gulf widened even further to 10–3.
Although the 2011 Plan was the result of both political and racial gerrymandering, Harris challenged the 2011 Plan as a racial gerrymander only. The State’s “defense”—in public, at trial, and before this Court—was that the Plan was intended to disadvantage Democrats, not African-Americans. In other words, in an attempt to escape liability for racial gerrymandering, the State openly admitted that the 2011 Plan was an intentional partisan gerrymander. At trial, Dr. Thomas B. Hofeller, who drew the challenged map, testified that “[p]olitics was the primary…determinant in the drafting,” and that the “overarching goal…was to create as many safe [or] competitive districts for Republican[s]…as possible.” At oral argument before this Court, the State’s counsel conceded that Dr. Hofeller “drew the map to draw the Democrats in and the Republicans out.”
Notwithstanding the State’s “party, not race” defense, this Court affirmed the decision of the District Court invalidating two districts in the 2011 Plan as racial gerrymanders. Harris, 137 S. Ct. at 1463.

6
C. The 2016 Plan
On February 5, 2016, the District Court in Harris ordered that a new Congressional map be promptly drawn. In response, Representative David Lewis and Senator Robert Rucho—both Republicans—engaged Dr. Hofeller, who had drawn the unconstitutional 2011 Plan, to create a new map that would cure the racial gerrymander, while preserving the 10–3 Republican advantage from the 2011 Plan.
At a meeting of the Joint Congressional Redistricting Committee, Representative Lewis presented a set of seven written criteria for the development of the 2016 Plan. These criteria were adopted by a straight party-line vote of the Joint Committee. The final 2016 Plan was also adopted by straight partyline votes in both legislative chambers.
The adopted criteria were explicitly and thoroughly partisan. Most obviously, the criterion labeled “Partisan Advantage” stated:
Partisan Advantage
The partisan makeup of the congressional delegation under the enacted plan is 10 Republicans and 3 Democrats. The Committee shall make reasonable efforts to construct districts in the 2016 Contingent Congressional Plan to maintain the current partisan makeup of North Carolina’s congressional delegation.
Similarly, the criterion labeled “Political data” stated:

7
Political data
The only data other than population data to be used to construct congressional districts shall be election results in statewide contests since January 1, 2008, not including the last two presidential contests.
Even purportedly non-partisan criteria drew partisan distinctions: under the criterion labeled “Compactness,” for example, Dr. Hofeller was authorized to—and in fact did—split counties for reasons of “political impact.”
The legislators primarily responsible for the 2016 Plan unabashedly admitted their partisan motivation. Among many others, Representative Lewis made the following public statements about the 2016 Plan:
• “[W]e 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’m making clear that our intent is to use … the political data … to our 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.”
For his part, Senator Rucho literally stated that the 2016 Plan “would be a political gerrymander.” In his understanding, there was “nothing wrong with politi-

8
cal gerrymandering”—no matter how extreme or brazen—because “[i]t is not illegal.”
Just as intended, 10 Republicans and 3 Democrats were elected to Congress from North Carolina in 2016. Thus, Republicans won 77% of North Carolina’s Congressional seats to Democrats’ 23%—even though the Republican Party received just 53% of the statewide Congressional vote to Democrats’ 47%. The gerrymandering of the 2016 Plan was so extreme that, had the two parties’ statewide vote shares been reversed, just a single Congressional seat would have flipped Democratic; the Republican Party would still have won a 69% supermajority of the State’s Congressional seats with a minority of the statewide vote.
D. Procedural History
In August 2016, amicus, along with the North Carolina Democratic Party and 14 voters from all 13 Congressional districts, filed a complaint challenging the 2016 Plan as an unconstitutional partisan gerrymander. The operative pleading alleges that the 2016 Plan—both “as a whole, and [as to] each…individual district[]”—violates the First Amendment (Count I), the Equal Protection Clause (Count II), and Article I, § 2 of the U.S. Constitution (Count III). Plaintiffs also allege that, in adopting the 2016 Plan, the Legislature exceeded the authority delegated to it by the Elections Clause (Count IV). Compl., Common Cause v. Rucho, No. 1:16-cv-1026 (M.D.N.C. Aug. 5, 2016), at 17-25. In March 2017, a three-judge District Court denied the defendants’ motion to dismiss, Common Cause v. Rucho, No. 1:16-cv-1026, 2017 U.S. Dist.

9
LEXIS 30242 (M.D.N.C. Mar. 3, 2017), and discovery ensued.3
As described further below (Point III.C), the plaintiffs retained two experts—one in political science and one in mathematics—to demonstrate (1) that the 2016 Plan could not have been drawn without the intent to systematically favor the Republican Party; and (2) that the 2016 Plan could not be justified as necessary to comply with traditional redistricting criteria. Those experts used computers to generate tens of thousands of alternative districting maps using only neutral principles and completely disregarding partisan identification. The experts then used actual voting data from each geographic precinct in North Carolina to simulate an election under each of these alternative maps. The cumulative results of these thousands of simulations were then used to calculate the probability that the 10–3 partisan split under the 2016 Plan was attributable to compliance with traditional districting criteria, rather than intentional partisan gerrymandering. Both experts concluded that this probability was essentially zero.
Common Cause was originally scheduled for trial in late June of 2017. Trial was adjourned by the District Court for undisclosed reasons. The State filed a motion to stay the proceeding pending this Court’s judgment in the instant appeal, which plaintiffs opposed. That motion was denied on August 29, 2017.
3 Common Cause has been consolidated with another partisan-gerrymandering challenge to the 2016 Plan, League of Women Voters of N. Carolina v. Rucho, No. 1:16-cv-1164 (M.D.N.C. filed Sept. 23, 2016).

10
SUMMARY OF ARGUMENT
This Court has repeatedly held that partisangerrymandering claims are justiciable. Wisconsin asks the Court to overrule those precedents and hold that such claims present non-justiciable “political questions”—at least when brought on a statewide basis. The Court should reject that invitation. That the courts have not yet converged on a single definitive formula to make out a partisan-gerrymandering violation is no reason to quit the project, especially as courts have only just begun to seriously consider the First Amendment framework that Justice Kennedy proposed in Vieth v. Jubelirer, 541 U.S. 267 (2004). And there is certainly no reason for courts to withhold relief in egregious cases involving direct evidence of naked partisan manipulation, such as this case and Common Cause. To declare this whole area of the law permanently off-limits to the courts would not only permit the continued deterioration of our democracy, it would actively sanction and accelerate it.
Amicus submits that Justice Kennedy’s First Amendment framework from Vieth provides a path out of the doctrinal wilderness. Partisan gerrymandering clearly violates the First Amendment: it is classic viewpoint discrimination, and it transgresses the longstanding First Amendment norm of nonpartisanship in official State action. Furthermore, First Amendment analysis is exceedingly straightforward: when a State targets individuals for unfavorable treatment because of their politics, that action is unconstitutional unless the State demonstrates narrow tailoring and a compelling interest. Courts apply this same analysis in First Amendment cases every day. Concepts such as “predominance,” “severity,” and

11
“durability” play no role. Unfortunately, in this case, the District Court largely conflated the plaintiffs’ First Amendment and Equal Protection Clause claims, complicating the analysis and placing an unwarranted burden on the plaintiffs to prove a First Amendment violation. Plaintiffs met that burden— but they should not have had to.
Finally, however the Court resolves this appeal, it should take care not to foreclose or prejudge other pending partisan-gerrymandering cases that present different facts, theories, and evidence. Common Cause, in particular, involves federal, not State-level, districting; it presents district-by-district challenges, as well as a statewide challenge; and it emphasizes a different type of social-science evidence than what was relied upon below. If, for whatever reason, the Court were to reverse the District Court in this case—and it should not—it is important that it leave the door open for amicus and others to pursue their own, distinct cases.
ARGUMENT
I. PARTISAN-GERRYMANDERING CLAIMS ARE JUSTICIABLE
This Court has recognized that “[p]artisan gerrymanders…are incompatible with democratic principles,” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (cleaned up), and has repeatedly held that partisangerrymandering claims are justiciable, see Davis v. Bandemer, 478 U.S. 109, 118–27 (1986); Vieth, 541 U.S. at 309–12 (Kennedy, J., concurring in the judg-

12
ment); LULAC v. Perry, 548 U.S. 399, 414 (2006); Shapiro v. McManus, 136 S. Ct. 450, 456 (2015).
Originally, Wisconsin asked this Court to overrule all of these holdings. Jurisdictional Statement 40. It now asks the Court to “hold that politicalgerrymandering claims are nonjusticiable, at least for statewide claims,” and acknowledges that “this Court need not decide here whether…claims brought on [a district-specific] theory are justiciable.” Appellants’ Br. 36–37 & n.9 (emphasis added). As discussed below, Wisconsin’s justiciability arguments are meritless. On the other hand, amicus agrees that this Court need not make a blanket ruling about the justiciability of all partisan-gerrymandering claims in this appeal. See Baker v. Carr, 369 U.S. 186, 217–18 (1962) (political question doctrine requires consideration of “the precise facts and posture of [each] particular case”).
A. That Partisan Gerrymandering Is Old Does Not Immunize It From Attack
Wisconsin begins its brief with a discussion of the history of partisan gerrymandering, suggesting that the practice should be immune to constitutional challenge because it has existed for “centuries.” Appellants’ Br. 1, 5–10. That argument fails for two reasons.
First, as far as history goes, the Framers’ intent at the time the Constitution was drafted and ratified matters more than the four isolated examples of preCivil War gerrymandering that Wisconsin has mustered. And the Framers’ intent could hardly be clearer. Hamilton lambasted the “intolerant spirit” of “po-

13
litical parties,” THE FEDERALIST No. 1, and described the Constitution as an “attempt[]…to abolish” them, Alexander Hamilton, Speech on the Senate of the United States, 2 THE WORKS OF ALEXANDER HAMILTON 57 (Henry Cabot Lodge, ed. 1904). John Adams wrote that “[t]here is nothing which I dread so much, as a division of the republic into two great Parties,” which he deemed “the greatest political Evil under our Constitution.” John Adams, Letter to Jonathan Jackson, dated Oct. 2, 1780, 9 THE WORKS OF JOHN ADAMS 512 (C.F. Adams, ed. 1854). Jefferson declared that “[i]f I could not go to Heaven but with a party, I would not go there at all.” Thomas Jefferson, Letter to Francis Hopkinson, dated Mar. 13, 1789, 5 THE WORKS OF THOMAS JEFFERSON 456 (P.L. Ford, ed. 1905). And Washington called political parties “the[] worst enemy” of democracies, warning that, if allowed to take root, they would “subvert[] the power of the people” and “usurp…the reins of government.” George Washington, Farewell Address, dated 1796, 13 THE WRITINGS OF GEORGE WASHINGTON 298, 301 (W.C. Ford, ed. 1892). These are not the words of men who condoned partisan gerrymandering.
Second, in all events, “the past alone [does not] rule the present.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015). Wisconsin’s argument from history applies a fortiori to geographic malapportionment, which has an even more ancient pedigree than partisan gerrymandering. Obviously, however, that did not stop this Court from deciding the one-person-onevote cases as it did. Arguments from history are especially weak when circumstances have changed, Lawrence v. Texas, 539 U.S. 558, 571–72 (2003), and both the degree of partisan polarization and the technolo-

14
gy available to gerrymanderers have changed markedly since Elbridge Gerry’s day. Appellees’ Br. 21–23; see Vieth, 541 U.S. at 345 (Souter, J., dissenting) (“[T]he increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.”).
B. Wisconsin’s “Manageable Standards” Argument Is A Red Herring
History aside, Wisconsin’s justiciability argument boils down to the perceived absence of a single brightline test that will neatly divide all unconstitutionally gerrymandered maps from all lawful ones. This argument is misplaced for at least three reasons.
First, in other categories of voting-rights cases, this Court has never required plaintiffs to proffer a fully articulated doctrinal and social-science framework before granting relief. See Vieth, 541 U.S. at 310–11 (Kennedy, J., concurring) (discussing the “more patient approach” of the one-person-one-vote cases). Instead, the Court has announced general principles, leaving lower courts to develop standards “with reference to both quantitative and qualitative markers that emerge as important over time.” Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship 15–16, 116 MICH. L. REV. (forthcoming Dec. 2017), http://bit. ly/2iahegE (hereinafter “Kang”).
The proceedings below fall comfortably within this tradition. This Court can and should affirm, even if it is not prepared to say that the doctrinal framework and social-science metrics employed in this case constitute the last, best word on the matter. It is no re-

15
sponse to argue, as Wisconsin does, that lower courts have had “13 years since Vieth” to agree on a framework, Jurisdictional Statement 40, as many of those courts have misread the Court’s fractured pronouncements in Vieth as prohibiting the case-by-case exploration that would have been necessary to converge on a standard. See Kang, supra, at 15–16.
Second, as amicus explains in Part II below, the quest for a quantitative “magic formula” in partisangerrymandering cases stems largely from prior plaintiffs’ exclusive reliance on the Equal Protection Clause. However, as Justice Kennedy observed in Vieth, such challenges are better suited to adjudication under the First Amendment, as the analysis under that provision is straightforward, even routine. Lower courts have only just begun to apply Justice Kennedy’s First Amendment theory. See, e.g., Shapiro v. McManus, 203 F. Supp. 3d 579, 596 (D. Md. 2016) (“[W]ell-established First Amendment jurisprudence…provides a well-understood…discernible and manageable standard.”).
Third and finally, even if the Court were convinced that it is impossible to coin a test that can resolve every claim, that would not “justify a refusal ‘to condemn even the most blatant violations….’” Cox v. Larios, 542 U.S. 947, 950–51 (2004) (Stevens, J., concurring); see Kang, supra, at 4 (“[C]ourts need not obsessively weigh partisan effects” in “egregious cases”). Justice Kennedy’s controlling opinion in Vieth recognizes this. In his view, the cases that demanded “manageable standards” were those where “a legislature…attempt[s] to reach [a partisan] result without [an] express [partisan] directive.” 541 U.S. at 312

16
(emphasis added). On the other hand, he recognized, “[i]f a State…declared” expressly that district lines “‘shall be drawn so as most to burden Party X’s rights to fair and effective representation,’…we would surely conclude,” without more, that “the Constitution had been violated.” Id.
That is essentially what happened in Wisconsin in this case and, as narrated above, that is exactly what occurred in North Carolina in Common Cause. At an absolute minimum, then, direct-evidence cases like these must be justiciable. No formulas or socialscience tools are needed to “smoke out” improper partisanship when the record shows it explicitly—let alone when a State has confessed to it.
C. The Political Question Doctrine Is Not A Suicide Pact
Wisconsin’s justiciability argument misses the mark for yet another reason. The “political question” doctrine serves the admirable purpose of showing respect for the political branches, especially where their institutional competence is superior. But that purpose cannot be pursued at all costs. As “a tool for maintenance of governmental order,” the doctrine must “not be so applied as to promote only disorder.” Baker, 369 U.S. at 215. When judicial action is the only way to prevent political-process failure, this Court has never stood aside in deference to the very branches whose processes have failed. See, e.g., Reynolds v. Sims, 377 U.S. 533, 553–54 (1964) (intervening where “[n]o effective political remedy…against the alleged malapportionment…[was] available”).

17
Importantly, the political question doctrine is, at least in part, a “prudential” limitation. Nixon v. United States, 506 U.S. 224, 252–53 (1993) (Souter, J., concurring in the judgment). As such, its “application …ultimately turns…on ‘how importunately the occasion demands an answer.’” Id. (quoting Learned Hand, THE BILL OF RIGHTS 15 (1958)). An act “might be so far beyond the scope of [the actor’s] constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.” Id. at 253–54. More bluntly, the doctrine is not a suicide pact that compels the Court to stand mute while our democracy collapses around it.
That should be dispositive here. Partisan gerrymandering is undermining our democratic institutions further each day. Left unchecked, it threatens to leave us with a Potemkin democracy, where elections are held, but the results are always foreordained. And the very nature of partisan gerrymandering is such that, once the gerrymanderers are entrenched, there can be no recourse through political channels. Witness the situation in North Carolina, where an egregiously gerrymandered legislative map has given the Republican Party veto-proof control over an evenly divided State, and that party is using its unchecked power to ensure its perpetual reelection. Supra at 3–5. It cannot be that “prudence” requires this Court to turn its back while, one by one, other States follow North Carolina down this road.4
4 In a few States, this process failure may be addressed by citizen initiative. See Ariz. Indep. Redistricting Comm’n,

18
Importantly, by declaring partisan gerrymandering beyond judicial reach, this Court would not only fail to prevent serious harm to democracy; it would actively accelerate that harm. Justice Kennedy observed that, “if courts refuse to entertain any claims of partisan gerrymandering, the temptation to [engage in it] will grow.” Vieth, 541 U.S. at 312. That is an understatement: a proclamation by this Court that the judiciary will never intervene would give a “constitutional green light” to legislators in every State to begin gerrymandering openly to the limit of what technology will allow. Id. at 345 (Souter, J., dissenting); see Benisek v. Lamone, No. JKB-13-3233, 2017 U.S. Dist. LEXIS 136208, at *45–46, *76–77 (D. Md. Aug. 24, 2017) (Niemeyer, J., dissenting) (describing the “absurd” and “extreme” gerrymanders that would result from such “judicial abdication”). In short, far from “maintain[ing]…governmental order,” such a declaration by this Court would affirmatively “promote…disorder.” Baker, 369 U.S. at 215.
II. THE FIRST AMENDMENT PROVIDES AN IDEAL FRAMEWORK FOR PARTISANGERRYMANDERING CLAIMS
The plaintiffs in this case allege, and the District Court held, that the gerrymander at issue violated not only the Equal Protection Clause, but also the First Amendment. Amicus agrees. Indeed, as Justice Kennedy suggested, the First Amendment provides the most logical framework for addressing partisangerrymandering claims. Vieth, 541 U.S. at 314.
135 S. Ct. at 2661–62. But most States, including Wisconsin and North Carolina, lack that option.

19
However, in amicus’s view, the correct First Amendment analysis differs from that conducted by the District Court below. Under settled First Amendment doctrine, partisan gerrymandering violates the First Amendment whether or not it crosses some threshold of “severity” and/or “durability”—that is, unless the State can satisfy strict scrutiny. And while the District Court did not require plaintiffs in this case to show that partisanship was the mapdrawers’ “predominant” consideration, some have argued for such a requirement. Under the First Amendment, it is clear that no “predominance” requirement exists.
A. Partisan Gerrymandering Violates the First Amendment
Partisan gerrymandering is intentional State discrimination against a class of voters based on “their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Vieth, 541 U.S. at 314 (Kennedy, J.); Appellees’ Br. 36. Of course, political association and expression “constitute the core of those activities protected by the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality). Indeed, the right of voters, “regardless of their political persuasion, to cast their votes effectively… rank[s] among our most precious freedoms.” Anderson v. Celebrezze, 460 U.S. 780, 787 (1983).
While a majority of this Court has yet to apply Justice Kennedy’s First Amendment analysis to a partisan-gerrymandering claim, that First Amendment theory remains “uncontradicted by the majority in any [of this Court’s] cases,” Shapiro, 136 S. Ct. at

20
456, and has been accepted and applied by lower courts, e.g., Shapiro, 203 F. Supp. 3d at 594–98. Moreover, it follows inexorably from settled precedent: in all other contexts, this Court has held that State-imposed “burdens” on political association and expression based on party identification “are unconstitutional.” Vieth, 541 U.S. at 314 (Kennedy, J.); see Kang, supra, at 17. Specifically, two well-established lines of First Amendment jurisprudence intersect in partisan-gerrymandering cases.
First, it is black-letter law that a State “may not regulate” First Amendment activity based on “the specific motivating ideology or the opinion or perspective of the speaker.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (citations omitted); see, e.g., Bd. of Ed. v. Pico, 457 U.S. 853, 870–71 (1982) (explaining that “a Democratic school board” may not, “motivated by party affiliation, order[] the removal of all books written by or in favor of Republicans”). The “danger” of such viewpoint discrimination is that it allows the government to skew “free and open discussion in a democratic society.” Matal v. Tam, 137 S. Ct. 1744, 1769 (2017) (Kennedy, J., concurring).
Partisan gerrymandering is viewpoint discrimination. When a State intentionally draws district lines so as to minimize the voice of one political party’s adherents, that is State action burdening political expression and association on the basis of “ideology” or “perspective.” Rosenberger, 515 U.S. at 829; see Vieth, 541 U.S. at 314 (Kennedy, J.); Benisek, 2017 U.S. Dist. LEXIS 136208, at *46–47, *72–73 (Niemeyer, J.) (“[W]hen district mapdrawers target voters based

21
on their prior, constitutionally protected expression in voting,” they “effectively punish[] voters for the content of their voting practices”).
This is no less true simply because members of the disfavored party may still cast a ballot or petition their legislators: viewpoint discrimination exists when disfavored voices are muffled, not merely when they are silenced. See Tam, 137 S. Ct. at 1752 (government’s refusal to register offensive trademarks was unconstitutional viewpoint discrimination, even though unregistered trademarks “may still be used in commerce”); cf. Kusper v. Pontikes, 414 U.S. 51, 58 (1973) (restriction on primary voting violated the First Amendment even though it did not “deprive [voters] of all opportunities to associate with the political party of their choice” (emphasis added)).
Second, and more generally, the First Amendment forbids the States qua States from officially aligning themselves with one political party. See Kang, supra, at 17–22. For example, this Court has repeatedly struck down the practice of “patronage,” or granting preferential treatment in public employment on the basis of “partisan political affiliation.” Elrod, 427 U.S. at 349; see also Branti v. Finkel, 445 U.S. 507 (1980); Rutan v. Republican Party of Ill., 497 U.S. 62 (1990). Likewise, it has stated that “[g]overnment funds… cannot be expended for the benefit of one political party” over another. Branti, 445 U.S. at 518 n.12. And, while no State has ever dared try it, it would be an obvious First Amendment violation for a State to “pass a law that expressly and officially endorses” one party or its candidates. Kang, supra, at 18–19. Permitting a State to engage in partisan activity in its

22
official capacity “distort[s] the electoral process,” Branti, 445 U.S. at 514 n.8, and threatens to “entrench[]” one party “to the exclusion of others,” Elrod, 427 U.S. at 371. And that is true a fortiori where State action impacts the “electoral process” directly, as partisan gerrymandering does, as opposed to indirectly, as with political patronage.
“Given these stringent limitations on the government’s ability to advance ideological motives” in other areas, “it would be strange indeed if a State’s administration of elections were not similarly limited.” Benisek, 2017 U.S. Dist. LEXIS 136208, at *75 (Niemeyer, J.); see Kusper, 414 U.S. at 57 (“[I]n exercising their powers of supervision over elections …, the States may not infringe upon basic constitutional protections.”).
B. The Common Cause Plaintiffs Advance A Distinct First Amendment Framework
The District Court held that partisan gerrymandering violates the Constitution if the impact is sufficiently “severe” and “durable.” Whitford v. Gill, 218 F. Supp. 3d 837, 884, 902 n.269 (W.D. Wis. 2016). These requirements were drawn from this Court’s Equal Protection cases—not its First Amendment cases. See Vieth, 541 U.S. at 291–93, 296 (plurality); Bandemer, 478 U.S. at 131–33. But these two provisions protect against different “underlying…constitutional harms,” and thus require different analyses. Vieth, 541 U.S. at 294 (plurality).
Never has this Court required plaintiffs to prove that a First Amendment violation is “severe” or “durable” to warrant relief. See Elrod, 427 U.S. at 358

23
n.11 (“This Court’s decisions have prohibited [State action]…which dampen[s] the exercise…of First Amendment rights, however slight[ly]….” (emphasis added)). The Court has never given the States license to engage in “a little bit” of viewpoint discrimination; nor has it permitted them to adopt patronage systems that do not “go too far.” See also Justin Levitt, Intent Is Enough: Invidious Partisanship in Redistricting 24, 59 WM. & MARY L. REV. (forthcoming 2017), http://bit.ly/2weL9aK (hereinafter “Levitt”) (“[T]he unconstitutionality of [a] tax on Republican [voter] registration would not depend on the magnitude of the tax…. A $.02 tax on Republican registration is just as unconstitutional as a $200 tax or $2 million tax. The invidious purpose is the constitutional flaw.”).
The same should be true when the First Amendment is applied to partisan gerrymanders: “[t]he inquiry” is simply “whether political classifications were used to burden a group’s representational rights.” Vieth, 541 U.S. at 315 (Kennedy, J.); see also Benisek, 2017 U.S. Dist. LEXIS 136208, at *47, *85 (Niemeyer, J.) (“The harm is not found in any particular election statistic”; rather, “[a] plaintiff[] must show only that [his] electoral effectiveness was…intentionally burdened for partisan reasons”). As long as a partisan-gerrymandering plaintiff meets the modest requirement of Article III injury-in-fact, a showing of invidious intent “is enough.” Levitt, supra, at 25–30, 57; see also Kang, supra, at 18.
Next, although the District Court did not agree, some have argued that partisan gerrymandering is actionable only if partisanship “predominated” over

24
other considerations in the mapmaking process. See Whitford, 218 F. Supp. 3d at 888 n.171. This putative requirement, too, is drawn from a branch of this Court’s Equal Protection caselaw. See, e.g., Harris, 137 S. Ct. at 1463–64. The First Amendment, by contrast, has never required a showing that hostility toward a disfavored viewpoint “predominated” over other State motives. See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 431–32 (1996) (“[The] inquiry tests whether the government regulated, even in part, on the basis of ideas as ideas….” (emphasis added)); cf. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (unconstitutional motive need only have been a “motivating factor”). Thus, in a First Amendment partisan-gerrymandering claim, it should not matter whether party was the State’s “predominant” consideration. The inquiry, again, “is whether political classifications were used.” Vieth, 541 U.S. at 315 (Kennedy, J.) (emphasis added).
Finally, the correct proof structure under the First Amendment differs from that employed by the District Court below. The District Court believed that it was the plaintiffs’ burden to prove that the challenged map could not be justified by “legitimate state prerogatives.” Whitford, 218 F. Supp. 3d at 911. In other words, it appeared to employ rational-basis scrutiny of the type that ordinarily applies in Equal Protection analysis absent a suspect classification such as race. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993).

25
The assignment of burden for a First Amendment claim is very different: once the plaintiff shows viewpoint discrimination, strict scrutiny is triggered. The burden shifts to the State to demonstrate that the challenged action was justified—and not just by a legitimate interest, but a “paramount” one “of vital importance.” Elrod, 427 U.S. at 362; see Vieth, 541 U.S. at 314–15 (Kennedy, J.) (“If a court were to find that a State did impose burdens…by reason of [political] views, there would likely be a First Amendment violation, unless the State shows some compelling interest.” (emphasis added)). Moreover, “the burden is on the government to show” that its actions were narrowly tailored to advance that interest. Elrod, 427 U.S. at 362–63.
These distinctive features of the First Amendment analysis make that framework superior for analyzing partisan-gerrymandering claims. In particular, they obviate the need for arbitrary line-drawing (i.e., “how much partisanship is too much?”) that troubled the plurality and Justice Kennedy in Vieth. See Levitt, supra, at 16–17. The First Amendment approach also provides simple instructions for State legislators: do not use partisan identification in your map-drawing, unless you have a compelling reason for doing so other than raw partisan advantage, and no other way to achieve that goal. This rule respects the States by putting them on clear notice of what they must do to avoid litigation, and at least in the long run, reduces the need for judicial intervention.
Unfortunately, the District Court collapsed the plaintiffs’ First Amendment and Equal Protection claims into one inquiry that ignored the distinct

26
analysis that each provision demands. As a result, the court’s First Amendment analysis was more complex than it needed to be, and the plaintiffs were held to an excessively heavy burden. They nonetheless met that burden—and the Common Cause plaintiffs could too. But neither the plaintiffs in this case nor those in other cases should have to do so.
III. COMMON CAUSE IS DIFFERENT FROM THIS CASE IN IMPORTANT WAYS
Besides raising a distinct First Amendment theory, Common Cause differs from this case in several other ways that caution against making any universal pronouncements about partisan-gerrymandering claims. First, while this case concerns state-level elections, Common Cause concerns Congressional elections. Second, this case is a statewide challenge; Common Cause presents both statewide and individual-district challenges. Finally, the type of socialscience evidence emphasized in Common Cause differs from that considered by the District Court below.
A. Partisan Gerrymanders In Federal Elections Raise Unique Concerns
Some argue that partisan-gerrymandering claims infringe upon federalism because the drawing of legislative districts is a “core sovereign function” of the States. See, e.g., Jurisdiction-Stage Brief for Amici Curiae Wisconsin State Senate and Assembly 5. That argument was rejected over 50 years ago in the oneperson-one-vote cases. Compare Baker, 369 U.S. at 330 (Harlan, J., dissenting) (criticizing the majority for “putting the federal courts into [an] area of state concerns”) with id. at 231 (majority) (federalism is no

27
defense “when state power is used as an instrument for circumventing a federally protected right”). The argument is meritless here for the same reason.
But the argument is also inapplicable on its face to Common Cause and other cases involving gerrymandering in the drawing of Congressional districts. States have no “sovereignty” over federal elections; to the contrary, they “can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not [expressly] delegate to them.” U.S. Term Limits v. Thornton, 514 U.S. 779, 801–02 (1995) (quoting Joseph Story, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 627 (3d ed. 1858)).
The only provision of the Constitution that grants the States any powers with respect to federal elections is the Elections Clause. Thus, “the States may regulate the incidents of [Congressional] elections…only within the exclusive delegation of power under the Elections Clause.” Cook v. Gralike, 531 U.S. 510, 523 (2001). That clause permits States to prescribe only “[t]he Times, Places and Manner of holding Elections.” U.S. CONST. art. I, § 4, cl. 1. The term “Manner” is limited to “matters like ‘notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.’” Cook, 531 U.S. at 523–24. Thus, “the Elections Clause [is] a grant of authority to issue procedural regulations, and not…a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” Id. at 524;

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see also Thornton, 514 U.S. at 833–34. And even then, the Elections Clause specifies that “Congress may at any time…alter [a State’s] Regulations,” vitiating any notion that the States are sovereign in this area.
North Carolina’s 2016 Plan is a flagrant violation of the Elections Clause, and is therefore inherently ultra vires. First, by systematically (and concededly) favoring the election of Republican candidates over Democratic ones, the State obviously “favor[ed]…a class of candidates” and “disfavor[ed]” another. Second, by going so far as to require a 10–3 Republican supermajority, the State “dictate[d] electoral outcomes.” And third, by denying equal protection of the laws to North Carolina Democrats and infringing their First Amendment rights, the State “evade[d] important constitutional restraints.” Cf. Cook, 531 U.S. at 524–25 (finding Elections Clause violation where Missouri printed Congressional candidates’ positions on term limits next to their names on the ballot, as even that limited act had the effect of “favor[ing] candidates” with certain political views and “disfavor[ing]” others). Just as “sovereignty” and “federalism” provided no defense in Cook, they provide no defense in Common Cause.5
5 The Court’s one-person-one-vote jurisprudence contains a similar federal/state distinction: while States have leeway to make limited departures from equipopulation in statelevel districting in order to “pursue other legitimate [State] objectives,” Brown v. Thomson, 462 U.S. 835, 842– 43 (1983), they have no such license in Congressional districting, Mahan v. Howell, 410 U.S. 315, 321–22 (1973).

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Of course, the question of what standard governs partisan-gerrymandering claims in the Congressional context is not now before the Court. Amicus’s point is simply that claims concerning federal elections present unique concerns, and that the Court should therefore take care not to prejudge them here.
B. Common Cause Contains Both Statewide And District-Specific Claims
Wisconsin argues that the plaintiffs lack standing to challenge a statewide districting plan, and that partisan-gerrymandering claims must proceed, if at all, on an individual-district basis. Appellants’ Br. at 28. Amicus disagrees. As the District Court concluded, and as plaintiffs explain, they have demonstrated a concrete and particularized injury-in-fact traceable to Wisconsin’s enactment of the challenged statewide plan. Appellees’ Br. 28–32; Whitford, 218 F. Supp. 3d at 927–30. Nothing more is needed for standing.
But even if the Court were to agree with Wisconsin that partisan-gerrymandering claims must proceed on a district-by-district basis, Common Cause fits that bill. The plaintiffs in that case include voters in each of North Carolina’s 13 Congressional districts, and those plaintiffs alleged and proved that “[t]he 2016 Plan as a whole, and each of its thirteen individual districts [independently],” were unconstitutional partisan gerrymanders. Am. Compl., Common Cause v. Rucho, No. 1:16-cv-1026 (M.D.N.C. Sept. 7, 2016). Thus, however the Court decides the standing issue here, Common Cause should be permitted to proceed.

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C. Common Cause Focuses On Different Social-Science Evidence
Some Justices have called for a quantitative test to separate permissible maps from unconstitutional ones. As explained above, a First Amendment plaintiff should not have to prove that a challenged map meets some quantitative threshold of “severity.” To make out a prima facie claim, it should suffice to show that “political classifications were used.” Vieth, 541 U.S. at 315 (Kennedy, J.).
In both this case and Common Cause, there is direct, “smoking gun” evidence that “political classifications were used.” Appellees’ Br. 4–10; supra at 6–8. Thus, quantitative proof should not be necessary in either case. But when direct evidence is not available, quantitative, social-science-based methods can provide critical “indirect evidence of partisan purpose.” Kang, supra, at 4; see also Levitt, supra, at 49 & n.195 (quantitative methods can “flag[] results sufficiently anomalous to signal the likelihood of troublesome intent”). Both the plaintiffs in this case and in Common Cause proffered such quantitative, socialscience-based evidence as well. But the nature of that evidence differs somewhat between the two cases.
Below, the plaintiffs relied principally (though not exclusively) on measures of partisan asymmetry, including the “efficiency gap” and “partisan bias.” Appellees’ Br. 11–17, 37–41; Whitford, 218 F. Supp. 3d at 854–55. Wisconsin, for its part, attacks partisan symmetry as “simply a species of proportional representation,” Appellants’ Br. 23, and argues that these measures fail to account for Republicans’ natural geographic advantages in Wisconsin, e.g., the clustering

31
of Democrats in a few urban areas, id. at 50. Amicus disagrees with these criticisms for the reasons the plaintiffs and other amici discuss.
In Common Cause, by contrast, the plaintiffs rely principally on large-scale computer simulations.6 Their experts, Dr. Jowei Chen (a political scientist from the University of Michigan) and Dr. Jonathan Mattingly (a mathematician from Duke University), used computers to generate many thousands of alternative districting maps, using only neutral principles (e.g., equipopulation, compactness, contiguity, and respecting political boundaries) and omitting any consideration of partisan identification. They then used precinct-level voting data from actual North Carolina elections to determine how many seats each party would have won under each alternative map.
The cumulative results of these simulations formed distributions that were then used to calculate the probability that the 10–3 split under the 2016 Plan resulted from application of traditional districting criteria rather than intentional partisan gerrymandering. See Levitt, supra, at 12 n.48 (describing simulations such as these as a “powerful tool” to determine “the degree to which the presented partisan consequence…is an outlier, given the other choices the redistricting party might have otherwise cho-
6 One of the Common Cause experts has used the same simulation technique to evaluate the Wisconsin map at issue here. Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 ELECTION L. J. (forthcoming 2017), http://bit.ly/2iseDia.

32
sen”); cf. Vieth, 541 U.S. at 312–13 (Kennedy, J.) (new “technologies,” such as “[c]omputer assisted districting,” may “facilitate court efforts to identify” partisan gerrymanders).
The results of these analyses were stark. Dr. Chen generated three sets of 1,000 maps using different sets of neutral districting criteria. Under most maps, the outcome was 7–6 or 6–7—just as North Carolina’s Congressional delegation had historically split. None of Dr. Chen’s 3,000 alternative maps resulted in a Republican advantage as great as 10–3:
Distribution of Results from One Set of Dr. Chen’s Simulated Elections

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Dr. Mattingly, meanwhile, generated over 24,000 alternative maps using only neutral districting criteria. Fewer than 0.7% of them resulted in a Republican advantage as lopsided as 10–3. Both experts’ results correspond to a probability of virtually zero that the results under the 2016 Plan could be attributed to neutral criteria rather than intentional partisan gerrymandering. Stated otherwise, both simulations showed to a statistical certainty that “political classifications,” not traditional districting criteria, drove the 2016 Plan. Vieth, 541 U.S. at 315 (Kennedy, J.).
Of course, in Common Cause, this statistical analysis merely confirmed what the individuals responsible for the 2016 Plan had already expressly admitted. But not all politicians will be so forthright—and in cases lacking such “smoking gun” evidence, this election-simulation method can both (1) establish an objective baseline against which the challenged map can be compared, and (2) permit the reviewing court to make an objective, quantitative determination whether the challenged map deviates sufficiently from that baseline to allow an inference of unconstitutionality. Vieth, 541 U.S. at 307–08 (Kennedy, J.). For example, the Court could hold that a plaintiff makes out a prima facie First Amendment violation if a simulation of this type shows that it is more likely than not that “political classifications were used.” Far from an arbitrary dividing line, reliance on a preponderance of the evidence is ubiquitous in the law.
Further, this simulation technique is immune from both criticisms that Wisconsin lodges against partisan-symmetry measures. First, the simulation technique is not even arguably equivalent to a meas-

34
ure of deviation from “proportional representation.” It has nothing at all to do with statewide partisanidentification figures, or what a “fair” outcome would be in light of those figures. Instead, it is an objective, quantitative method of assessing whether partisanship dictated the drawing of the challenged district lines. Second, the simulation technique necessarily takes a State’s natural political geography (e.g., partisan “clustering”) into account, since the outcome of each simulated election is determined by actual voting data from each geographical precinct.
This Court should affirm the District Court’s judgment on the strength of both the direct evidence of partisan intent that the plaintiffs proffered and their corroborating social-science evidence. But if the Court should happen to disagree, it should not conclude that there is no “manageable” quantitative method for evaluating a partisan-gerrymandering claim before it has given the Common Cause simulation technique its direct consideration.
CONCLUSION
The judgment of the District Court should be affirmed.

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Respectfully submitted.
GREGORY L. DISKANT Counsel of Record
JONAH M. KNOBLER PETER A. NELSON ELENA STEIGER REICH PATTERSON BELKNAP
WEBB & TYLER LLP 1133 Ave. of the Americas New York, NY 10036 (212) 336-2000 gldiskant@pbwt.com
EMMET J. BONDURANT BONDURANT MIXSON &
ELMORE LLP 1201 West Peachtree St.,
NW #3900 Atlanta, GA 30309
EDWIN M. SPEAS, JR. POYNER SPRUILL LLP 301 Fayetteville St.,
Suite 1900 Raleigh, NC 27601
Counsel for Amicus Curiae
September 5, 2017

 
 No. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, ET AL.,

Appellants,

v.

WILLIAM WHITFORD, ET AL.,

Appellees.

On Appeal From the United States District Court for the Western District of Wisconsin

BRIEF OF THE LEAGUE OF WOMEN VOTERS AS AMICUS CURIAE IN SUPPORT OF APPELLEES

LLOYD LEONARD

KATHLEEN R. HARTNETT

THE LEAGUE OF WOMEN VOTERS Counsel of Record

OF THE UNITED STATES

BRENT K. NAKAMURA

1730 M Street, N.W.

BOIES SCHILLER FLEXNER LLP

Washington, D.C. 20036

435 Tasso Street, Suite 205

Palo Alto, CA 94301

(650) 798-3508

September 5, 2017

khartnett@bsfllp.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ..................................... 1

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

ARGUMENT ....................................................................... 4

I. Appellants’ Proposed Safe Harbor For Apparent Use Of Traditional Districting Principles Is Unsupported By Precedent................. 4

II. Amici’s Gloss On Appellants’ Proposed Safe Harbor Is Not Convincing .............................. 13

III. Compactness

Illustrates

Why

Appellants’ Proposed Safe Harbor Is

Not Warranted And Is Inconsistent

With The Constitutional Values At

Stake ....................................................................... 19

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

ii
TABLE OF AUTHORITIES Cases
Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017) ................... passim
Davis v. Bandemer, 478 U.S. 109 (1986) ............................................5, 6
Fortson v. Dorsey, 379 U.S. 433 (1965) ................................................5
Gaffney v. Cummings, 412 U.S. 735 (1973) ................................................5
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ..............................................18
Miller v. Johnson, 515 U.S. 900 (1995)..............................8, 10, 13, 16
Shaw v. Reno, 509 U.S. 630 (1993) ................................................4
Vieth v. Jubelirer, 541 U.S. 267 (2004) ...................................... passim Statutes
Iowa Code § 42.4........................................................21 Wash. Rev. Code § 44.05.090 ....................................22
Other Authorities Micah Altman, Districting Principles and
Democratic Representation (Mar. 31, 1998) ........17 John Russell Bartlett, Dictionary of
Americanisms (4th ed. 1877) .........................11, 12

iii
Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, Quarterly J. of Poli. Sci. (2013) ....................................................................20
Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (2013) .................................................12
Richard N. Engstrom, District Geography and Voters, in Redistricting in the New Millennium (Peter F. Galderisi ed., 2005) ..........17
Elmer C. Griffith, The Rise and Development of the Gerrymander (1907)...................................12
Bernard Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 77 (1985).......................................................17
Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593 (2002) ....................................................................23
League of Women Voters, Statement of Position on Redistricting, as Adopted by Concurrence, June 2016, http://lwv.org/content/election-process. ...............13
Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm & Evolutionary Computation 78 (2016) ........................................21

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National Conference of State Legislatures, Redistricting Law 2010 (2009) ............................21

INTEREST OF AMICUS CURIAE1 The League of Women Voters of the United States (the League) is a non-partisan, community-based organization that promotes political responsibility by encouraging Americans to participate actively in government and the electoral process. Founded in 1920 as an outgrowth of the struggle to win voting rights for women, the League now has more than 150,000 members and supporters, and is organized in more than 750 communities and in every State. Since its founding, the League has actively engaged in advocacy asserting that voting and fair elections are fundamental rights for all citizens.
The League has been a leader in seeking reform of the redistricting process at the state, local, and federal levels for more than fifty years. During that time, the League has worked to increase participation in elections and protect voting rights at the local, state, and federal levels.
1 No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amicus curiae, or its counsel, made a monetary contribution to its preparation or submission. The parties have filed blanket consents in this matter.

2
SUMMARY OF ARGUMENT
Appellants argue for the creation of a novel, unjustified barrier to a partisan gerrymandering claim: a safe harbor for legislatures that engage in gerrymandering but do so in apparent compliance with traditional redistricting principles of compactness, contiguity, and respect for political subdivisions. According to Appellants, if a redistricting complies with traditional redistricting principles, it must be sustained as a matter of constitutional law.
Appellants’ proposed safe harbor is legally unsupported and would have dangerous consequences. It would elevate form over substance, allowing intentional and extreme political gerrymanders so long as districts have a benign appearance. This Court’s precedent does not support categorically immunizing a legislature from inquiry into whether districts were drawn with the intent and effect of obtaining a constitutionally impermissible partisan advantage, even if they have the facial appearance of normalcy. And for good reason, given that even a “normal”-looking districting plan can violate core representative and participatory rights protected by the First and Fourteenth Amendments. Nor does the historical understanding of the term “gerrymandering” support Appellants’ position, not in the least because Appellants misinterpret relevant historical materials.

3
Several amici supporting Appellants likewise argue that gerrymanders should be immune from challenge if they appear to be based on traditional districting principles. Resisting the characterization of a “safe harbor,” some amici argue that such redistricting falls outside the definition of “gerrymandering” in the first place. These definitional arguments are wrong, including as a historical matter, but in any event, none of these amici justifies a dispositive status for compactness or other traditional principles.
Traditional districting principles are not irrelevant to partisan gerrymandering claims. They can be important guideposts, in, for example, examining the intent and potential justification of a legislature’s redistricting effort. But a district that appears to comply with traditional districting principles is not automatically constitutional. Such a holding would be contrary to this Court’s jurisprudence. It also would bring little clarity, since traditional criteria like compactness are themselves ill-defined and inconsistently applied. Further, it would ignore the reality that increasingly sophisticated technologies allow legislatures to cloak intentional, extreme partisan gerrymanders in “normal”-looking districts. These concerns counsel strongly against adopting Appellants’ proposed safe harbor.

4
ARGUMENT I. Appellants’ Proposed Safe Harbor For
Apparent Use Of Traditional Districting Principles Is Unsupported By Precedent. Appellants argue for an all-or-nothing safe harbor for “normal”-looking political gerrymandering. According to Appellants, a court must find that “no unlawful political gerrymandering has occurred where . . . the legislature complied with traditional redistricting principles.” Appellants’ Br. at 59.2 Appellants argue that if a redistricting appears to comply with these principles, such as compactness, it must be sustained as constitutional “as a matter of law.” Id. at 61. Put another way, Appellants argue that deviation from traditional redistricting principles is a necessary element of a partisan gerrymandering claim. This Court’s jurisprudence does not support such an approach, which would preclude the necessary inquiry into a legislature’s intent in drawing district lines, as well as the effect of those lines. This inquiry is necessary to address the touchstone of a partisan gerrymandering claim: whether there has been “an excessive injection of politics” into the redistricting process. Vieth v. Jubelirer, 541 U.S. 267, 293 (2004)
2 The Court has identified “traditional districting principles such as compactness, contiguity, and respect for political subdivisions” as legitimate considerations in a redistricting process. Shaw v. Reno, 509 U.S. 630, 647 (1993).

5
(plurality opinion). A partisan gerrymandering claim is grounded in both the Equal Protection Clause, which prohibits deliberate dilution of groups’ voting power, and the First Amendment, which forbids discrimination against voters based on their political beliefs. This Court’s precedent, including Vieth and Davis v. Bandemer, 478 U.S. 109 (1986), indicates that a workable standard must account for all relevant constitutional considerations.
Beginning as early as Gaffney v. Cummings, 412 U.S. 735 (1973), the Court recognized that traditional districting criteria are not dispositive of constitutional challenges to the drawing of district lines. The unanimous Court in Gaffney explained that “compactness or attractiveness has never been held to constitute an independent federal constitutional requirement for state legislative districts.” Id. at 752 n.18 (citations omitted). Gaffney also observed that districts equal in population — and thus apparently “normal” — can “still be vulnerable under the Fourteenth Amendment.” Id. at 751; cf. Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (contemplating that multimember districts are susceptible to challenge if they “operate to minimize or cancel out the voting strength of racial or political elements of the voting population”).
Following Gaffney, the Court has consistently considered and rejected treating as dispositive traditional districting criteria (in whole or in part). For example, in Bandemer, Justice Powell set forth the view that “the shapes of voting districts and

6
adherence to established political subdivision boundaries” are “[t]he most important factors” in a redistricting challenge. 478 U.S. at 173 (Powell, J., concurring in part and dissenting in part). This view was rejected by the Bandemer plurality, which provided that a showing of an “an actual disadvantage in terms of fair representation on a group level” was necessary. Id. at 140-41 (plurality opinion).
Nearly two decades later in Vieth, the Court also rejected the notion that a partisan gerrymandering claim should turn on a showing of whether the challenged redistricting “paid little or no heed to traditional districting principles.” Vieth, 541 U.S. at 295-96 (plurality opinion). Three dissenting Justices admirably set forth proposed standards for adjudicating partisan gerrymandering claims. See id. at 347-52 (Souter, J., joined by Ginsburg, J., dissenting); id. at 333-39 (Stevens, J., dissenting). To the extent these standards would have required a plaintiff to establish a disregard of traditional districting principles, however, the plurality balked, asking “[h]ow much disregard of traditional districting principles,” id. at 296 (plurality opinion). The Vieth plurality viewed such an approach as requiring a “quantifying judgment” that did not lend itself to a workable judicial standard. Id.
Even aside from workability, Vieth indicates that compactness should not be talismanic — either to show liability or to disprove it — because traditional principles such as “contiguity and compactness” “cannot promise political neutrality” and

7
“unavoidably have significant political effect, whether intended or not.” Id. at 308-09 (Kennedy, J., concurring in the judgment). As the Vieth plurality explained, “a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions” might nevertheless cause certain political groups to be “systematically affected by what might be called a ‘natural’ packing effect.” Id. at 290 (plurality opinion) (citation omitted).
In short, there is a real concern that making noncompliance with traditional districting criteria a prerequisite to gerrymandering claims will immunize certain “normal”-looking maps that are in fact unconstitutional gerrymanders. As the Court has forcefully explained in the racial gerrymandering context, by deploying the traditional principles of districting “in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles,” even if “race for its own sake is the overriding reason for choosing one map over another.” Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017). Thus, although deviation from traditional districting principles may be relevant to a constitutional violation, “there is no rule requiring challengers to present this kind of evidence in every case.” Id.; see id. (“[A] conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial

8
gerrymandering.”); see Miller v. Johnson, 515 U.S. 900, 910-11 (1995) (rejecting the argument that “regardless of the legislature’s purposes, a plaintiff must demonstrate that a district’s shape is so bizarre that it is unexplainable other than on the basis of race”).
This reasoning from the Court’s racial gerrymandering cases applies squarely to the partisan gerrymandering context. Appellants provide no principled reason why it does not. Of course, as Appellants note, and as this Court has rightly observed, “[r]ace is an impermissible classification,” subject to the most exacting scrutiny. Appellants’ Br. at 62 (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment)). But any “special consideration” applicable in the context of racial classifications, Appellants’ Br. at 62, is not the reason why the racial gerrymandering cases refuse a categorical rule that compactness is a prerequisite for liability. Rather, such a rule has been conclusively rejected by the Court because it misses the constitutional point: “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.” BethuneHill, 137 S. Ct. at 798 (2017); see id. at 798-99 (discussing the “racial predominance” inquiry applicable to racial gerrymandering claims). Likewise here, the First and Fourteenth Amendments prohibit partisan gerrymanders, not ugly districts. See Appellees’ Br. at 33 (“[A] court must find discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate

9
justification.”). In the context of partisan gerrymandering, just as in racial gerrymandering, a bright-line safe harbor would prevent full and fair resolution of the fundamental question at issue: does the gerrymander have an unconstitutional (and unjustifiable) purpose and effect.
The district court, having performed a comprehensive and respectful assessment of this Court’s cases, thus correctly rejected Appellants’ argument that “compliance with traditional districting principles necessarily creates a constitutional ‘safe harbor’ for state legislatures.” Jurisdictional Statement App. (JS App.) 120a. As the district court accurately observed, this proposed rule is “novel” and “finds no support in the law,” as “[i]t is entirely possible to conform to legitimate redistricting purposes but still violate the Fourteenth Amendment because the discriminatory action is an operative factor in choosing the plan.” Id. In particular, “[h]ighly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional districting criteria.” Id. at 121a-122a. Thus — and undeniably — “[a] map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” Id. at 122a.
The dissent below resisted the characterization of immunity based on traditional districting principles as a “safe harbor,” Id. at 258a. But that is precisely what Appellants’ proposed rule would be. According to the dissent, it would be a “gerrymander without

10
gerrymandering” to allow a partisan gerrymandering claim if a district appears to conform to traditional districting principles. Id. at 250a. As discussed above, however, that is not the law. The Court has never endorsed the view that a gerrymander must be bizarrely shaped, despite repeated opportunities to do so.
Moreover, the dissent below and Appellants both overread the separate opinions of Justices Stevens and Souter in Vieth, in claiming that those opinions would have categorically precluded a challenge to a districting plan that had the facial appearance of normalcy, notwithstanding a demonstrably improper intent and effect. According to Justice Stevens, he would “apply the standard set forth in the Shaw cases.” Vieth, 541 U.S. at 339 (Stevens, J., dissenting). As explained above, this Court’s precedent is clear, dating back to at least Miller, that the “normal” appearance of a district does not foreclose a racial gerrymandering claim. See, e.g., Bethune-Hill, 137 S. Ct. at 799; Miller, 515 U.S. at 910-11 (1995). Thus, Justice Stevens’ approach would not have created the safe harbor Appellants seek.
Likewise, Justice Souter (joined by Justice Ginsburg) in Vieth did not categorically foreclose a partisan gerrymandering claim where traditional principles of districting merely appear to have been followed. To begin with, Justice Souter’s suggested framework would have applied to individual districts, Vieth, 541 U.S. at 346, 353 (Souter, J., dissenting) — as opposed to a statewide map like

11
that at issue here, for which he did not attempt a standard. As the evidence in this case shows, “traditional criteria” can be used on a systematic, statewide basis to attempt to cloak improper intent and effect. In any event, Justice Souter’s suggested requirement that a plaintiff show that her district “paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly,” id. at 347-48, leaves room for liability where — as here — traditional districting concerns are used as a mask for improper partisan gain. In such a situation, the line-drawers ultimately pay “little or no heed” to traditional districting principles, because the quest for partisan gain — not the claimed principles — is determinative.
In addition to arguing for a safe harbor that is unsupported by this Court’s precedent, Appellants rely on historical sources, see Appellants’ Br. at 5-10, that do not support their claim that gerrymandering necessarily involves bizarrely shaped districts. In fact, Appellants’ sources themselves demonstrate that the term “gerrymandering” means drawing districts for partisan advantage, with a bizarre shape being evidence of motive but not the wrong itself. For example, the 1877 dictionary cited by Appellants, see id. at 5, defines “gerrymandering” as: “Arranging the political divisions of a State, so that in an election, one party may obtain an advantage over its opponent, even though the latter may possess a majority of the votes in the State.” John Russell Bartlett, Dictionary of Americanisms 248

12
(4th ed. 1877). Appellants fail to cite this definitional first sentence, see Appellants’ Br. at 5, instead quoting a snippet of language from the entry’s description of the 1811 Massachusetts districting that included the notorious salamander. Although the bizarre shape of the 1811 district was indeed notable evidence of gerrymandering, it was not the wrong itself. Likewise, the Elmer Griffith book heavily relied on by Appellants, see id. at 5-7, 60-61, does not support limiting the definition of gerrymandering to bizarrely shaped districts. Griffith states that gerrymandering is districtdrawing that “sets aside the will of the popular majority” and “is intended to disenfranchise the majority or to secure it an influence disproportionate to its size.” Elmer C. Griffith, The Rise and Development of the Gerrymander 7, 8 (1907). Gerrymandered districts are “established especially for election purposes” and “formed intentionally in a particular manner for partisan advantage.” Id. at 20. Although Griffith observes that this is often accomplished by disregarding the boundaries of political subdivisions, he does not define “gerrymander” to require a bizarre shape. Likewise, the Erik Engstrom book cited repeatedly by Appellants, see Appellants’ Br. at 6-10, does not limit gerrymanders to bizarrely shaped districts. To the contrary, he describes gerrymandering as “the strategic manipulation of congressional districts.” Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 8 (2013). These are just a few examples of Appellants’ distortion of

13
the historical sources to suggest a definitional limit on the term “gerrymandering” that does not exist.
Following traditional districting principles can be a constitutional safeguard and a manifestation of good government. Indeed, the League has endorsed use of these principles when they are not used to provide “[p]referential treatment for a political party.” League of Women Voters, Statement of Position on Redistricting, as Adopted by Concurrence, June 2016, http://lwv.org/content /election-process. Violation of these principles also can be important evidence of unconstitutional activity, as the Court has long recognized. See, e.g., Bethune-Hill, 137 S. Ct. at 798 (“bizarreness . . . may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale” (quoting Miller, 515 U.S. at 913)). In short, respect for traditional districting principles is potentially relevant evidence to the ultimate assessment of a gerrymandering claim — whether racial or partisan in nature. But the Court has before, and should again, conclusively reject Appellants’ proposed safe harbor, which would turn traditional districting principles into an end in themselves. They are not. Compliance with the Constitution is.
II. Amici’s Gloss On Appellants’ Proposed Safe Harbor Is Not Convincing.
Several amici echo Appellants’ call for a safe harbor for compact districts or districts that

14

otherwise appear in compliance with traditional redistricting principles. None of these amici provides a justification for the categorical safe harbor Appellants seek.

For example, amicus Republican National

Committee (RNC), like the dissent below, advocates

for what it calls “an actual gerrymander” as a

requirement for political gerrymandering claims.

RNC Br. at 2-3, 8, 13, 36; see JS App. at 252a

(“Without evidence of any distortion of otherwise

legitimate district boundaries, there is no

gerrymander, at least as the term is traditionally

understood.”).

According to the RNC, a

gerrymandered district must be “unnecessarily

bizarrely shaped district drawn without regard to

traditional districting criteria.” RNC Br. at 14. The

RNC contends that “[a] regularly shaped district

drawn according to traditional . . . redistricting

criteria, by definition, is not a gerrymander.” Id. at

15 (citation omitted). The RNC’s definitional

argument is incorrect as a matter of both precedent

and history, as detailed above. While it is of course

true that some “quintessential example[s] of

gerrymandering” id., involve bizarrely shaped

districts, a bizarre shape has never been a

definitional requirement for a gerrymander.

The RNC also argues that “districts drawn in accord with traditional districting principles should not be susceptible to political gerrymandering challenges.” Id. at 20. This argument is the same as Appellants’ all-or-nothing request — to provide a safe harbor for redistricting plans that facially

15
appear consistent with traditional districting principles. As explained above, this novel approach is neither supported nor justified.
Finally, acknowledging that this Court’s racial gerrymandering cases conclusively reject the categorical immunization that Appellants seek here, see id at 16, the RNC — like Appellants — attempts to distinguish those cases, stating that “[p]laintiffs in political gerrymandering cases are very differently situated,” id. 18. Of course there are differences between racial gerrymandering and partisan gerrymandering, including in terms of history, applicable constitutional provisions, the nature of the harm suffered, and case law. But that does not mean that on-point reasoning from the racial gerrymandering cases does not apply in the partisan gerrymandering context. The reasons the Court refused a safe harbor in Bethune-Hill and earlier cases is not because there were racial classifications at issue; it was because such a safe harbor does not capture the constitutional inquiry and makes the traditional criteria ends in themselves, rather than guideposts. As Justice Kennedy put it: “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.” Bethune-Hill, 137 S. Ct. at 798. Likewise here, the Equal Protection Clause and the First Amendment do not prohibit “unnecessarily bizarrely shaped district[s],” RNC Br. at 14. They prohibit “an excessive injection of politics” into the redistricting process. Vieth, 541 U.S. at 293 (plurality opinion).

16
Amicus Wisconsin Institute for Law & Liberty (WILL) asks for precisely the same thing as Appellants and the RNC — immunity for legislatures that adhere to traditional districting criteria — based largely on the same arguments. WILL Br. at 22-28. According to WILL, “[a] district is not an unconstitutional gerrymander when it complies with traditional districting criteria.” Id. at 23. Again, this approach — which would immunize blatant gerrymanders so long as they are covered up with traditional redistricting criteria — is unsupported by precedent and history. Unlike Appellants and the RNC, however, WILL refuses to acknowledge that this Court has rejected a categorical safe harbor in the racial gerrymandering cases, claiming that the alleged “consensus” in Vieth to sustain districts that adhere to traditional redistricting criteria “accords with the Court’s reasoning in racial gerrymandering cases.” Id. at 25. Of course, there was no “consensus” in Vieth that traditional redistricting criteria provide a dispositive safe harbor. And in no case is that what the racial gerrymandering cases stand for: as explained above, those cases reject a safe harbor. See, e.g., Miller, 515 U.S. at 914 (“the logical import of our reasoning is that evidence other than a district's bizarre shape can be used to support the claim”).
To its credit, amicus National Republican Congressional Committee (NRCC) recognizes that “[g]rouping people into compact districts is not an end in and of itself.” NRCC Br. at 33. The NRCC then theorizes, however, that a “[c]ompact district

17
allow citizens to better engage in the political process.” Id at 33 (citation omitted). Even assuming this were true, it is not a reason to provide a categorical safe harbor for compact districts against partisan gerrymandering claims. Even if compact districts (or those that comply with other traditional districting principles) create some positive effects, that does not mean that compactness or similar features must be dispositive of the constitutional inquiry.
In any event, the NRCC’s assumptions about the benefits of compactness are wrong. Studies by political scientists concerning the relationship between district compactness and metrics of political engagement have found nearly no correspondence. As one prominent scholar has concluded, “I do not believe there is anything desirable per se about districts that look like squares or circles.” Bernard Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 77, 89-90 (1985); see Micah Altman, Districting Principles and Democratic Representation 323, 324-34 (Mar. 31, 1998) (measuring the compactness of congressional districts from 1962 through 1994, and finding no statistically significant impact on voter or elected officials’ attitudes and behaviors, other than on turnout, although those effects were minimal in light of demographic factors); Richard N. Engstrom, District Geography and Voters, in Redistricting in the New Millennium 65, 73-74 (Peter F. Galderisi ed., 2005) (assessing the connection between compactness and voter turnout for congressional

18
districts from 1994 to 1998, and finding no relationship).
The NRCC also claims, as did the dissent below, that “shapes are important” not only for “visual preference but also so that legislators may identify potential gerrymanders.” NRCC Br. at 20 (citation omitted). According to the dissent, deviation from traditional redistricting criteria is a necessary requirement for a partisan gerrymandering claim because “the mapmakers (and their critics) will immediately be able to detect when their efforts have produced unusual and suspicious visual results— dragons in flight, salamanders, sick chickens, or any other of the flamboyantly monikered chimeras that creative cartographers have conjured up over the decades.” JS App. at 263. Of course, such glaring visuals have long helped identify potentially unconstitutional action. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960) (allowing a constitutional claim where “[p]rior to Act 140 the City of Tuskegee was square in shape; the Act transformed it into a strangely irregular twentyeight-sided figure,” with “[t]he essential inevitable effect of . . . remov[ing] from the city all save only four or five of its 400 Negro voters while not removing a single white voter or resident”). Such colorful language, however, risks overlooking the proverbial “wolf in sheep’s clothing” — the “normal”looking district that cracks, packs, or otherwise unconstitutionally organizes people by race or party. It also overlooks that districts may be non-compact for legitimate reasons, such as protecting a

19
community of interest or due to natural geographical features. That is why the Court consistently has rejected attempts to categorically insulate from challenge districts that appear to conform to traditional districting principles, or to categorically condemn districts that appear “abnormal.” The Court should not deviate from that path in this case.
III. Compactness Illustrates Why Appellants’ Proposed Safe Harbor Is Not Warranted And Is Inconsistent With The Constitutional Values At Stake.
Considering the pitfalls inherent in a singular focus on compactness — one of the key traditional districting principles — helps illuminate the fundamental flaws in Appellants’ proposed safe harbor. In short, compactness does not guarantee a constitutional district, and may in fact mask unconstitutionality. An assessment of compactness alone, or even in combination with the other traditional criteria, does not sufficiently correspond to the constitutional values at stake to serve as the ultimate standard by which to judge a partisan gerrymandering claim.
The Vieth plurality explained one of the inherent problems with compactness as a potential standard: it is a poor proxy for whether excessive partisan consideration has gone into the districting process. “[P]acking and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines.” Vieth, 541 U.S. at 298 (plurality opinion) (citation omitted).

20
That compactness, either alone or in conjunction with other traditional factors, is not an appropriate proxy for constitutionality makes sense, given the constitutional interests at stake. The Equal Protection Clause protects against intentional dilution of a group’s voting power, which impairs individuals’ rights to political representation. Groups can be readily diluted through “normal’looking districts, as the well-worn concepts of packing and cracking demonstrate. Thus, the ultimate inquiry is whether there has been improper dilution, not whether a district appears “normal.” Likewise, the First Amendment prohibits viewpoint discrimination, including on the basis of political beliefs. Regardless of a district’s appearance, if the districting has been done to penalize particular political beliefs, there has been First Amendment harm. A mere inquiry into whether a district is compact, or otherwise in apparent compliance with traditional districting factors, will not inform whether particular political viewpoints have been penalized in violation of the Constitution.
Recent peer-reviewed social science confirms that compactness is not a reliable or sufficient proxy for whether partisan gerrymandering has occurred or whether a group has been impermissibly systematically disadvantaged. See, e.g., Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, Quarterly J. of Poli. Sci. 239, 266 (2013) (explaining that compactness is not a reliable proxy for whether partisan gerrymandering has occurred

21
because “each state’s unique voter geography may either open up or restrict opportunities for mapmakers wishing to implement politically motivated gerrymandering strategies”); see also Yan Y. Liu, Wendy K. Tam Cho & Shaowen Wang, PEAR: A Massively Parallel Evolutionary Computation Approach for Political Redistricting Optimization and Analysis, 30 Swarm & Evolutionary Computation 78, 81 (2016) (recognizing that since compactness “is neither uniformly enforced by the courts nor strictly defined, it has taken on various specifications”).
The non-mandatory nature of compactness as a redistricting principle further cautions against the use of compactness and other traditional districting principles as a rigid constitutional safe harbor. While the majority of states mandated compactness as a districting principle during the redistricting that occurred following the 2000 census, fourteen states did not. Nat’l Conf. of State Legislatures, Redistricting Law 2010, 106-07 (2009). The nonmandatory nature of compactness as a districting principle at the state level, where districting plans are created, debated, and implemented in the first instance indicates that compactness is not a reliable bright line for whether a district is an impermissible partisan gerrymander.
The meaning of compactness also varies from state to state, making it an improper basis for a categorical, constitutional safe harbor. For example, certain state codes specify exacting standards for compactness. E.g. Iowa Code § 42.4(4)(a)-(b) (2017)

22
(defining in detail the “[l]ength-width compactness” and “[p]erimeter compactness” to be used when comparing the “relative compactness of two or more districts, or of two or more alternative districting plans”). Others dictate that districts adhere to compactness but provide no specific guidance as to how to measure it. E.g. Wash. Rev. Code § 44.05.090(2)(b) (mandating in a redistricting plan that “[d]istricts should be composed of convenient, contiguous, and compact territory,” without any specification of how compactness is to be measured (emphasis added)).
Further compounding this definitional difficulty is the fact that where no particular compactness measure is mandated by a legislature, there are numerous competing measures of compactness to choose from: “dispersion, the ratio of the area of the district to the area of the smallest circle that circumscribes the district;” “perimeter, the ratio of the area of the district to the area of the circle whose diameter equals the length of the area’s perimeter;” and “population, the ratio of the district’s population to the population contained by the minimum convex figure that encloses the district,” otherwise known as the “rubber-band” area. Vieth, 541 U.S. at 348 n.3 (Souter, J., dissenting). The Court has yet to agree on any single way of measuring compactness, let alone one solid enough allow compactness to immunize redistricting from constitutional challenge.
Finally, ever-advancing technology, including in the areas of geographic information systems, district line drawing software, and voter information

23
aggregation, highlights the danger of Appellants’ argument for a rigid safe harbor based on compactness and other traditional districting criteria. More than ever in history, technology can mask excessive partisanship (or racial discrimination) in a “normal”-looking district. As the district court accurately explained, “[h]ighly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional districting criteria.” JS App. at 121a-22a. Thus, “[w]hen reviewing intent,” the Court “cannot simply ask whether a plan complied with traditional districting principles.” Id.
Over a decade ago in Vieth, several Justices recognized the substantial impact of emerging technology on the redistricting process, without resolving the ultimate impact on the legal analysis. As Justice Kennedy cautioned, “[t]echnology is both a threat and a promise” and “the rapid evolution of technologies in the apportionment field suggests yet unexplored possibilities.” Vieth, 541 U.S. at 312 (Kennedy. J., concurring in the judgment). For his part, Justice Souter lamented that “the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.” Id. at 345 (Souter, J., joined by Ginsburg, J., dissenting) (citing, inter alia, Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 624 (2002) (The “pattern of incumbent entrenchment has gotten worse as the computer technology for more exquisite

24
gerrymandering has improved”)). In no case, however, did the Court dismiss the potential of a “high-tech stealth gerrymander” as a mere “bugaboo,” as the dissent below would have it. JS App. at 260a. Nor should it. The undeniable reality is that “[a] map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” Id. at 122a. Accordingly, compactness — like apparent adherence to any of the traditional districting principles — cannot categorically immunize redistricting from a partisan gerrymandering claim.

25
CONCLUSION The judgment of the district court should be affirmed.
Respectfully submitted,
KATHLEEN R. HARTNETT Counsel of Record
BRENT K. NAKAMURA BOIES SCHILLER FLEXNER LLP 435 Tasso Street, Suite 205 Palo Alto, CA 94301 (650) 798-3508 khartnett@bsfllp.com
Counsel for Amicus Curiae The League of Women Voters
September 5, 2017

 
 No. 16-1161

In The
Supreme Court of the United States
___________
BEVERLY R. GILL, ET AL.,

Appellants, v.

WILLIAM WHITFORD, ET AL.,

____________

Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin ____________

BRIEF OF FAIRVOTE AND ONE NATION ONE VOTE AS AMICI CURIAE IN SUPPORT OF APPELLEES ____________

Andrew Spencer David O’Brien FAIRVOTE 6930 Carroll Ave, Ste 240 Takoma Park, Maryland 20912

Justin A. Nelson Counsel of Record
Alejandra C. Salinas SUSMAN GODFREY L.L.P. 1000 Louisana, Ste 5100 Houston, Texas 77002 (713) 651-9366 jnelson@susmangodfrey.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT ................................... 1

ARGUMENT .............................................................. 4

I. Singling Out Voters On The Basis of Partisan Affiliation Is Unconstitutional. ........... 4

II. States Will Retain Ample Flexibility In A Districting Process That Excludes Political Gerrymandering. ................................................ 10

A. Several Commonly Used Voting Methods Can Make Partisan Gerrymandering Infeasible. ...................................................... 11

1. Ranked Choice Voting Is One Option States Can Consider. ............................... 11

2. Cumulative Voting Provides Another Option For States. ................................... 14

3. The Single Vote Form Of Limited Provides Another Established Option. ... 16

B. When Combined With One Of These

Voting Methods, Multi-Winner Districts

Can

Eliminate

Partisan

Gerrymandering. .......................................... 17

C. The Adoption Of These Electoral Systems Can Prevent Or Remedy Partisan Gerrymandering Litigation. ......................... 18

CONCLUSION ......................................................... 20

ii
TABLE OF AUTHORITIES
Cases
Arizona State Legislature v. Arizona Indep. Redistricting Com'n, 135 S. Ct. 2652 (2015) ..................................... 3, 10
Benisek v. Lamone, Civ. No. JKB-13-3233 (D. Md. Aug. 24, 2017) ................................................................ 2, 7, 8
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011) ................................................ 7
Branch v. Smith, 538 U.S. 254 (2003) ........................................ 10, 14
Brown v. Entm't Merchants Ass’n, 564 U.S. 786 (2011) ................................................ 6
City of Erie v. Pap's A.M., 529 U.S. 277 (2000) ................................................ 7
Dillard v. Chilton County Bd. of Educ., 699 F. Supp. 870 (M.D. Al. 1988) ........................ 19
Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. Al. 1988) ...................... 19
Elrod v. Burns, 427 U.S. 347 (1976) ................................................ 7
Gaffney v. Cummings, 415 U.S. 735 (1973) ................................................ 6
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................................................ 5
Growe v. Emison, 507 U. S. 25 (1993) ............................................... 14

iii
Holder v. Hall, 512 U.S. 874 (1994) .................................. 10, 12, 14
Kusper v. Pontikes, 414 U.S. 51 (1973) .................................................. 7
44 Liquormart Inc. v. Rhode Island, 517 U.S. 484 (1996) ................................................ 6
Miller v. Johnson, 515 U.S. 900, 911 (1995) .................................... 5, 8
Nat'l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43 (1977) .............................................. 6, 7
Personnel Administrator v. Feeney, 422 U.S. 256 (1979) ................................................ 8
Reynolds v. Sims, 377 U.S. 533 (1964) ............................................ 5, 8
Rogers v. Lodge, 458 U. S. 613 (1982) ............................................. 14
Shaw v. Reno, 506 U.S. 630 (1993) ............................................ 5, 8
United States v. Carolene Products Co., 304 U.S. 144 (1938) ................................................ 3
United States of America v. City of Calera, Alabama, et. Al., No. CV-08-BE-1 982-S (M.D. Ala. Oct. 23, 2009) 16
Vieth v. Jubelirer, 541 U.S. 267 (2004)............................. 2, 8, 9, 10, 17
Williams v. Rhodes, 393 U.S. 23 (1968) .................................................. 7
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) .................. 6

iv Other Authorities
Alexander Athan Yanos, Reconciling the Right to Vote with the Voting Rights Act, 92 Colum. L. Rev. 1810 (1992) ........................................................... 11
Andrew Spencer, Christopher Hughes, & Rob Richie, Escaping the Thicket: The Ranked Choice Voting Solution to America's Redistricting Crisis, 46 CUMB. L. REV. 377 (2016) .............................. 11, 12
Colin A. Hughes, STV in Australia, in ELECTIONS IN AUSTRALIA, IRELAND, AND MALTA UNDER THE SINGLE TRANSFERABLE VOTE: REFLECTIONS ON AN EMBEDDED INSTITUTION (Shaun Bowler & Bernard Grofman ed. 2000) ............................................... 13
Declaration of Independence (U.S. 1776) ................. 1
Fair Representation Act, H.R. 3057, 115th Cong. (2017) .................................................................... 18
Frank H. Easterbrook & Daniel R. Fischel, Voting in Corporate Law, 26 J.L. & ECON. 395 (1983) . 14, 15
History of RCV, RANKED CHOICE VOTING RESOURCE CENTER, http://www.rankedchoice voting.org/history_rcv (last viewed Sep. 4, 2017) 12
ILLINOIS ASSEMBLY ON POLITICAL REPRESENTATION & ALTERNATIVE ELECTORAL SYSTEMS, EXECUTIVE SUMMARY (2001), http://archive.fairvote.org/opedsexecsum.pdf ............................................... 15, 16
Michael Gallagher, The (Relatively) Victorious Incumbent under PR-STV: Legislative Turnover in Ireland and Malta, in ELECTIONS IN AUSTRALIA, IRELAND, AND MALTA UNDER THE SINGLE TRANSFERABLE VOTE: REFLECTIONS ON AN

v
EMBEDDED INSTITUTION (Shaun Bowler & Bernard Grofman ed. 2000) ............................................... 13
Reihan Salam & Rob Richie, How to Make Congress Bipartisan, N.Y. TIMES, July 8, 2017 at A19 ...... 18
Richard H. Pildes & Kristen A. Donoghue, Cumulative Voting in the United States, 1995 U. CHI. LEGAL F. 241 (1995) ..................................... 14
Richard L. Engstrom, Cumulative and Limited Voting: Minority Electoral Opportunities and More, 30 ST. LOUIS U. PUB. L. REV. 97 (2010) .................................................................... 14
Rob Richie & Andrew Spencer, The Right Choice for Elections: How Choice Voting will end Gerrymandering and Expand Minority Voting Rights, from City Councils to Congress, 47 U. RICH. L. REV. 959 (2013) ...................................... 13
Steven J. Mulroy, Alternative Ways Out: A Remedial Road Map for the Use of Alternative Electoral Systems As Voting Rights Act Remedies, 77 N.C.L. Rev. 1867 (1999) ............................. 16,17
Steven J. Mulroy, Coloring Outside the Lines: Erasing: “One-Person, One-Vote” & Voting Rights Act Line-Drawing Dilemmas by Erasing District Lines, 85 Miss. L. J., 1271 (2017) ........................ 17

INTEREST OF AMICI CURIAE1
FairVote is a 501(c)(3) nonpartisan organization that advocates for electoral reforms that give voters a stronger voice in the democratic process. One Nation One Vote is a non-profit organization with a mission to improve American democracy. FairVote and One Nation One Vote agree that partisan gerrymandering is a constitutional problem that courts must remedy.
FairVote and One Nation One Vote have expertise in the impacts of various voting and election methods. They submit this brief to emphasize the range of options available to prevent the excessive injection of politics into the redistricting process. Amici wish to explain that if the Court holds that excessive partisan gerrymandering is unconstitutional, lawmakers and the judiciary will have a large remedial toolbox available to them.
SUMMARY OF ARGUMENT
The foundation of American democracy rests on “the consent of the governed.” Declaration of Independence (U.S. 1776). When lawmakers engage
1 All parties have consented in writing to the filing of this brief through letters on file with the Clerk. No counsel for a party authored this brief in whole or in part, and no person other than amici curiae and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2
in partisan gerrymandering, they corrode this consent by punishing groups on the basis of their political beliefs in an effort to deprive them of equal representation. Without judicial intervention, partisan gerrymandering threatens to undermine the premise of our representative democracy, the promise of the Declaration of Independence, and the power of the Constitution.
Voting is the critical way in which we express our political associations and beliefs. As Judge Niemeyer recently explained, “when district mapdrawers target voters based on their prior, constitutionally protected expression in voting and dilute their votes, the conduct violates the First Amendment, effectively punishing voters for the content of their voting practices. This First Amendment test focuses on the motive for manipulating district lines, and the effect the manipulation has on voters, not on the result of the vote.” Benisek v. Lamone, Civ. No. JKB-13-3233, slip op. at 28 (D. Md. Aug. 24, 2017) (Niemeyer, J., dissenting). Accord Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in judgment) (“In the context of partisan gerrymandering, . . . First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters' representational rights.”).
This Court has recognized that the Constitution bars the “excessive injection of politics” into the districting process. Vieth, 541 U.S. at 293 (plurality); id. at 312 (Kennedy, J., concurring in judgment) (“If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-

3
person, one-vote principles,’ we would surely conclude the Constitution had been violated.”). “Allegations of unconstitutional bias in apportionment are most serious claims, for we have long believed that ‘the right to vote’ is one of ‘those political processes ordinarily to be relied upon to protect minorities.’” Id. at 311-12 (Kennedy, J., concurring in the judgment) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938)).
This Court has not agreed, however, on a set of judicially manageable standards to identify and remedy violations. This concern should not prevent the Court from prohibiting partisan gerrymandering. Legislatures found to have engaged in unconstitutional partisan gerrymandering could draw from many options to remedy any constitutional violations and prevent future ones. These systems both provide protection to States on the front end by removing partisan consideration and allow States the ability to quickly devise remedies in the event a court finds a violation.
As the Court has recognized, some States already have begun to delegate the task of districting to independent redistricting commissions. Arizona State Legislature v. Arizona Indep. Redistricting Com'n, 135 S. Ct. 2652, 2662 (2015). As Appellees note, this approach generally will defeat partisan gerrymandering claims because a plaintiff could not meet the intent element. Appellees Br. At 55.
Another approach involves the adoption of any of several voting methods that inherently undermine political gerrymandering, such as ranked choice voting, cumulative voting, and the single vote form of

4
limited voting. Using these voting methods in combination with multi-member districts can reduce or eliminate partisan gerrymandering entirely.
The Constitution does not mandate winner-takeall elections or single member districts. How a State chooses to district should not dictate whether it may engage in unconstitutional partisan gerrymandering. A State may choose to use other methods of districting that would mitigate or eliminate the use of discriminatory partisan tactics in districting.
ARGUMENT
I. Singling Out Voters On The Basis Of Partisan Affiliation Is Unconstitutional.
When lawmakers discriminate against groups in the political process, they strike at the heart of our democracy and the “consent of the governed.” This Court has long recognized that our legal structure requires some measure of representational equality that effectuates the core “consent of the governed” principle:
Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State's legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be

5
bodies which are collectively responsive to the popular will.
Reynolds v. Sims, 377 U.S. 533, 565 (1964).
This Court has not hesitated to intervene when a legislature “singles out a readily isolated segment of a racial minority for special discriminatory treatment.” Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960) (holding that a racially gerrymandered legislative district could violate the Fifteenth Amendment). Unequal treatment of citizens under the law lifts controversies “out of the so-called ‘political’ arena and into the conventional sphere of constitutional litigation.” Id. at 347. In Gomillion, the Alabama legislature manipulated the boundaries of Tuskeegee into a bizarre twenty-eight-sided figure, removing hundreds of black voters without removing a single white voter. Id. at 341. In that case, “the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation [was] solely concerned with . . . fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.” Id.
In Shaw v. Reno, 506 U.S. 630, 652 (1993), this Court reaffirmed that States may not redistrict in contravention of the Fourteenth Amendment’s prohibition on racial discrimination: “[T]he essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts.” Miller v. Johnson, 515 U.S. 900, 911 (1995). It is equally true that the Constitution prohibits discrimination on the basis of partisan affiliation or voting history. Just as this Court struck down the “max black” plan passed by Georgia in Miller, so too should it strike down the

6
Final Map passed by Wisconsin here that, in the words of the District Court, “was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats.” Whitford v. Gill, 218 F. Supp. 3d 837, 843 (W.D. Wis. 2016); see also Appellee Br. at 6 (noting map names like “Joe Aggressive”).
And while it is true that this Court has permitted States to consider political factors in drawing district lines, it should not countenance a State acting intentionally to favor one party over another. In Gaffney v. Cummings, 415 U.S. 735 (1973), the Court permitted a plan that favored incumbents of both parties by taking account of political considerations. The situation here—where a State intentionally discriminates against the voters of one party—is far different from the political consideration allowed in Gaffney.
Not only does the Fourteenth Amendment prohibit unequal treatment of similarly situated persons or groups, the First Amendment prevents a State from punishing voters on the basis of their political beliefs. The First Amendment protects, among other things, erotic dancing, neo-Nazi marches, violent video games, and games, and price advertisements for alcoholic beverages. Brown v. Entm't Merchants Ass’n, 564 U.S. 786, 804 (2011) (striking down California’s prohibition on the sale of violent video games); City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (protecting erotic nude dancing); 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) (striking down Rhode Island’s prohibition of advertisement of alcoholic beverage pricing); Nat'l

7
Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 44 (1977) (reversing a prohibition of a neo-Nazi march in Skokie).
A First Amendment that not only protects such speech but also remedies any violation of these rights surely protects a political party from districting policies that intentionally discriminate against individuals on the basis of partisan affiliation. Indeed, if the core of the First Amendment is protecting political speech, the core of political speech comes in the act of voting. See, e.g., Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 405 (2011) (affirming that “speech on matters of public concern that lies ‘within the core of First Amendment protection’”); Williams v. Rhodes, 393 U.S. 23, 41 (1968) (“The right to have one's voice heard and one's views considered by the appropriate governmental authority is at the core of the right of political association.”).
“There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments . . . . The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). “The illuminating source to which we turn in performing the task is the system of government the First Amendment was intended to protect, a democratic system whose proper functioning is indispensably dependent on the unfettered judgment of each citizen on matters of political concern.” Elrod v. Burns, 427 U.S. 347, 372 (1976).

8
A “First Amendment test” for partisan gerrymandering “focuses on the motive for manipulating district lines, and the effect the manipulation has on voters, not on the result of the vote.” Benisek, slip op. at 28 (Niemeyer, J., dissenting). “The harm is not found in any particular election statistic, nor even in the outcome of an election, but instead on the intentional and targeted burdening of the effective exercise of a First Amendment representational right.” Id. As Justice Kennedy stated in Vieth, “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” 541 U.S. at 314. Thus, “[i]n the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters' representational rights.” Id.
The standard adopted by the lower court here further effectuates this Court’s Reynolds- and Shawbased jurisprudence and the principle articulated by Judge Niemeyer in Benisek. Courts can deploy welltried techniques in their judicial toolkit to prevent legislatures from redistricting with constitutionally forbidden legislative intent. In many areas of state action, courts detect equal protection violations when a legislature acts with a “[d]iscriminatory purpose,” meaning that the its decision was made “‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator v. Feeney, 422 U.S. 256, 279 (1979); see also Miller, 515 U.S. at 916 (quoting Feeney).

9
In Vieth, a majority of Justices chose not to deem partisan gerrymandering claims outside the realm of judicial scrutiny. See 541 U.S. at 308 (Kennedy, J., concurring in judgment). All Justices in Vieth accepted that the “excessive injection of politics [into the redistricting process] is unlawful.” Id. at 293 (plurality); id. at 317 (Kennedy, J., concurring in judgment) (“If a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles,’ we would surely conclude the Constitution had been violated.”); id. at 337-38 (Stevens, J., dissenting) (“The rational basis for government decisions must satisfy a standard of legitimacy and neutrality; an acceptable rational basis can be neither purely personal nor purely partisan.”); id. at 354 (Souter, J., dissenting) (“It is sufficient instead to agree that gerrymandering is, indeed, unfair . . . and to adopt a test aimed at detecting and preventing the use of those methods.”); id. at 355 (Breyer, J., dissenting) (“The use of purely political considerations in drawing district boundaries is not a ‘necessary evil’ that, for lack of judicially manageable standards, the Constitution inevitably must tolerate.”). As discussed below, States and courts can draw on established principles to prevent any Constitutional violation in the first instance and to remedy any violation a court may find.

10
II. States Will Retain Ample Flexibility In A Districting Process That Excludes Political Gerrymandering.
If the Court deems partisan gerrymandering a justiciable controversy, the States will retain control over the redistricting process. States have a wide range of options to prevent future intentional partisan gerrymandering and to remedy any constitutional violations due to this practice. The Court and Appellees have addressed one, the adoption of a bipartisan or nonpartisan redistricting process. Arizona State Legislature, 135 S. Ct. at 2662; Appellee Br. at 54-55. Reconfiguration of the districting process, however, is not the only approach. The Constitution does not mandate the current format of single member districts in winnertake-all format. See, e.g., Branch v. Smith, 538 U.S. 254 (2003) (discussing at-large and single-member districts); id. at 302-08 (O’Connor, J., concurring in part and dissenting in part) (recounting history); Holder v. Hall, 512 U.S. 874, 897 (Thomas, J., concurring in judgment) (“[T]here is no principle inherent in our constitutional system, or even in the history of the Nation's electoral practices, that makes single member districts the ‘proper’ mechanism for electing representatives to governmental bodies.”).
A variety of electoral structures that go beyond the narrow confines of winner-take-all, single winner districts also can reduce or eliminate the harms of partisan gerrymandering.

11
A. Several Commonly Used Voting Methods Can Make Partisan Gerrymandering Infeasible.
States can prevent partisan gerrymandering by adopting an electoral system that reduces the ability of interested parties to “crack” or “pack” voters. See Vieth, 541 U.S. at 286 n.7 (plurality opinion) (describing those terms as tools that enable gerrymandering by “packing” a particular group of voters in one district—thereby reducing their influence in surrounding districts—or “cracking” them into numerous districts—thereby reducing their opportunity to elect candidates of their choice in those districts). Many of these systems and voting methods are widely used in United States elections.
1. Ranked Choice Voting Is One Option States Can Consider.
Ranked choice voting, which is also known as single transferrable voting, is an electoral system in which voters rank candidates in order of preference. Alexander Athan Yanos, Reconciling the Right to Vote with the Voting Rights Act, 92 Colum. L. Rev. 1810, 1859-60 (1992). Under this framework, a ballot is initially counted for the voter’s first choice candidate. Id. If the voter’s first choice candidate, however, does not secure the sufficient threshold of votes needed to win, the ballot will then be counted for the voter’s second choice candidate, and so on if necessary. Id.
Ranked choice voting reduces the feasibility of partisan gerrymandering because “[b]y first choice or transfer, almost all voters will have had an opportunity to elect a candidate.” Id. at 1861. A

12
ranked choice voting system “allows a minority group to concentrate its voting power without requiring districting, and it has the additional advantage of ensuring that ‘surplus’ votes are transferred to support the election of the minority voters' next preference.” 512 U.S. at 910 n.16 (Thomas, J., concurring in judgment).
Since the start of the twentieth century, dozens of American municipalities have utilized ranked choice voting. Andrew Spencer, Christopher Hughes, & Rob Richie, Escaping the Thicket: The Ranked Choice Voting Solution to America's Redistricting Crisis, 46 CUMB. L. REV. 377, 410 (2016).2 In cities like Cincinnati and New York, the adoption of ranked choice voting has secured representation for previously excluded political and racial minorities. In the 1920s, Cincinnati adopted ranked choice voting and beginning in 1931, it consistently elected African Americans to its city council. Id. at 410. In the 1930s, New York City implemented ranked choice voting and successfully reduced the share of city council seats controlled by the Tammany Hall political machine as other parties began to win seats in numbers proportional to their share of the vote.
2 The cities that adopted and used ranked choice voting at some point since the beginning of the twentieth century are Ashtabula, OH; Boulder, CO; Kalamazoo, MI; Sacramento, CA; West Hartford, CT; Cleveland, OH; Cincinnati, OH; Hamilton, OH; Toledo, OH; Wheeling, WV; New York, NY; Norris, TN; Yonkers, NY; Cambridge, MA; Lowell, MA; Long Beach, NY; Coos Bay, OR; Saugus, MA; Worcester, MA; Medford, MA; Quincy, MA; Revere, MA; Hopkins, MN; and Oak Ridge, TN. History of RCV, RANKED CHOICE VOTING RESOURCE CENTER, http://www.rankedchoicevoting.org/history_rcv (last viewed Sep. 4, 2017).

13
Belle Zeller & Hugh A. Bone, American Government and Politics: The Repeal of P.R. in New York City-Ten Years in Retrospect, 42 AM. POL. SCI. REV. 1127, 1132 (1948). Prior to implementation, Tammany Hall had long dominated city politics by manipulating the electoral process to engineer supermajorities on the city council. Id. at 1127-28 (“On the old board of alderman elected through single-member districts, the Democrats had a virtual one-party monopoly of representation.”).
Ranked choice voting has also proven effective in numerous foreign countries. For almost a century, Australia has used ranked choice voting in both state and federal elections. Colin A. Hughes, STV in Australia, in ELECTIONS IN AUSTRALIA, IRELAND, AND MALTA UNDER THE SINGLE TRANSFERABLE VOTE: REFLECTIONS ON AN EMBEDDED INSTITUTION, 155 (Shaun Bowler & Bernard Grofman ed. 2000). Ireland and Malta have also used ranked choice voting in federal elections to elect at least one national legislative chamber. Michael Gallagher, The (Relatively) Victorious Incumbent under PRSTV: Legislative Turnover in Ireland and Malta, in ELECTIONS IN AUSTRALIA, IRELAND, AND MALTA UNDER THE SINGLE TRANSFERABLE VOTE: REFLECTIONS ON AN EMBEDDED INSTITUTION, 87-88 (Shaun Bowler & Bernard Grofman ed. 2000). In addition, New Zealand, Northern Ireland, and Scotland continue to utilize ranked choice voting at the municipal level. Rob Richie & Andrew Spencer, The Right Choice for Elections: How Choice Voting will end Gerrymandering and Expand Minority Voting Rights, from City Councils to Congress, 47 U. RICH. L. REV. 959, 982 (2013).

14
2. Cumulative Voting Provides Another Option For States.
Cumulative voting is another electoral system that can reduce the risk of partisan gerrymandering. Under cumulative voting, voters may cast as many votes as there are open seats, which they can distribute among the candidates. Holder, 512 U.S. at 910 n.15 (Thomas, J., concurring in judgment). Voters can give all their votes to one candidate or distribute them among several. Id.
Similar to ranked choice voting, cumulative voting reduces the feasibility of partisan gerrymandering because it “allows a numerical minority to concentrate its voting power behind a given candidate without requiring that the minority voters themselves be concentrated into a single district.” Id.
“[A] court could design an at-large election plan that awards seats on a cumulative basis, or by some other method that would result in a plan that satisfies the Voting Rights Act.” Branch, 538 U.S. at 310 (O’Connor, J., concurring in part and dissenting in part) (citing, among other authorities, Growe v. Emison, 507 U. S. 25, 40 (1993); Rogers v. Lodge, 458 U. S. 613, 616-617 (1982); and Holder, 512 U.S. at 897-898, 908-912 (Thomas, J., concurring in judgment)).
In fact, cumulative voting is used in dozens of municipalities. Richard L. Engstrom, Cumulative and Limited Voting: Minority Electoral Opportunities and More, 30 ST. LOUIS U. PUB. L. REV. 97, 98 (2010). In Chilton County, Alabama, for example, voters have elected the County Commission and the Board

15
of Education by cumulative voting since 1988. Richard H. Pildes & Kristen A. Donoghue, Cumulative Voting in the United States, 1995 U. CHI. LEGAL F. 241, 242 (1995). The introduction of cumulative voting was immediately responsible for a significant increase in political and racial minority representation in Chilton County’s elected bodies. Id. at 272, such as African Americans, women, and Republicans. Id; see also infra Part III.b. Cumulative voting also features prominently in corporate board elections. Frank H. Easterbrook & Daniel R. Fischel, Voting in Corporate Law, 26 J.L. & ECON. 395, 399 (1983).
For over a century, the Illinois House of Representatives utilized cumulative voting to elect its State house of representatives. ILLINOIS ASSEMBLY ON POLITICAL REPRESENTATION & ALTERNATIVE ELECTORAL SYSTEMS, EXECUTIVE SUMMARY 15-16 (2001), http://archive.fairvote.org/opedsexecsum.pdf (hereinafter EXECUTIVE SUMMARY). The system was adopted with the goals of decreasing polarization between the northern and southern parts of the state, reducing the power of party caucuses and leaders, and replacing the “feudal theory of exclusive majority representation with the true ideas of representative government.” Id. at 15.
Although Illinois ultimately abandoned cumulative voting in tandem with reducing the size of the legislature, recent legislative assessements have confirmed that cumulative voting suceeded at achieving its intended purpose. In 2001, the Illinois Assembly on Political Representation and Alternative Electoral Systems, a task force cochaired by former White House counsel Abner Mikva

16
and former Governor Illinois Jim Edgar, conducted “an objective and comprehensive evaluation of Illinois’ electoral system.” EXECUTIVE SUMMARY at 8. The assembly’s evaluation concluded that although the cumulative voting system had faults, it was nevertheless more effective at deterring partisan gerrymandering than plurality voting: [I]t appears that it was more difficult under cumulative voting than under plurality voting to achieve partisan advantage in terms of the seats-to-votes ratio. Id. at 21.

3. The Single Vote Form Of Limited

Voting

Provides

Another

Established Option.

Another system with the same threshold of exclusion is the single vote form of limited voting, where voters cast one vote in a multi-winner district; variations of this system are used across the United States today. Steven J. Mulroy, Coloring Outside the Lines: Erasing: “One-Person, One-Vote” & Voting Rights Act Line-Drawing Dilemmas by Erasing District Lines, 85 Miss. L. J., 1271, 1292-93 (2017).

Because of its simplicity, the single vote system can provide for a quick way to resolve districting issues. For example, when the town of Calera, Alabama illegally redistricted in 2008, eliminating its sole majority-minority district, the court ordered the city to elect citywide with the single vote system, avoiding any need to redraw districts. United States of America v. City of Calera, Alabama, et. Al., No. CV-08-BE-1 982-S (M.D. Ala. Oct. 23, 2009), https://www.justice.gov/sites/default/files/crt/legacy/2 010/12/15/calera_cd_mod.pdf.

17

B. When Combined With One Of These

Voting Methods, Multi-Winner Districts

Can

Eliminate

Partisan

Gerrymandering.

When used with one of the above voting methods, a multi-winner district elects candidates that cross a certain threshold percentage of votes. Steven J. Mulroy, Alternative Ways Out: A Remedial Road Map for the Use of Alternative Electoral Systems As Voting Rights Act Remedies, 77 N.C.L. Rev. 1867, 1880 (1999) (hereinafter Mulroy, Alternative Ways Out). The number of open seats in the district determines the threshold percentage.3 In a multiwinner district with three open seats, for example, all candidates that receive over 25% of the vote are elected. In a four-winner district, candidates who receive over 20% are elected; in a five-winner district the threshold is 16.7%; and so on.

The use of multi-winner districts with one of these voting methods makes partisan gerrymandering more difficult and less effective in at least two ways. First, more winners in an election lowers the amount needed for any one candidate to emerge victorious and thus reduces the incentive for a dominant political group to “crack” or “pack” districts. See Vieth, 541 U.S. at 286 n.7 (plurality opinion). Second, multi-winner districts are larger and more heterogeneous than single-winner districts. See Steven J. Mulroy, Alternative Ways Out at 1871.

3 The formula to determine the threshold is one divided by the number of open seats plus one. For a district that elects three representatives, the formula is 1/(3+1). Mulroy, Alternative Ways Out, supra, at 1880.

18
The use of multi-winner districts with one of these voting methods diminishes the importance of district lines and affords a minority of voters the opportunity to elect candidates of their choice. Excessive partisan gerrymandering would be extraordinarily difficult, if not impossible.
One model that States and courts could adopt is a system that combines multi-winner districts with ranked choice voting. The Fair Representation Act, recently introduced in Congress by Representative Don Beyer of Virginia, sets forth a plan to move United States House of Representative elections into multi-winner districts drawn by independent redistricting commissions, and elected through ranked choice voting. H.R. 3057, 115th Cong. (2017). 24 states would not draw any districts, and most of the rest would only need to create two or three districts. Id.
Since its introduction, the Fair Representation Act has garnered bipartisan support. For example, Reihan Salam, Executive Editor of the National Review co-authored an op-ed in support of the Fair Representation Act in The New York Times with Rob Richie, Executive Director of FairVote. Reihan Salam & Rob Richie, How to Make Congress Bipartisan, N.Y. TIMES, July 8, 2017 at A19.
C. The Adoption Of These Electoral Systems Can Either Prevent Or Remedy Partisan Gerrymandering Litigation.
Non-winner-take-all systems provide courts with potential remedies in partisan gerrymandering suits. Because it becomes quite simple to create plans that create more voter choice, these voting methods are

19
particularly attractive for jurisdictions that want to avoid lawsuits and for courts seeking a remedy under a short timeline. Because they make representation less tied to district lines, they also free courts from needing to weigh the trade-offs inherent in judging district maps. Several possibilities exist for how States could apply these methods.
First, a jurisdiction could voluntarily adopt one of these voting methods to avoid the threat of litigation altogether. As discussed in Part II, supra, such voting methods make gerrymandering impracticable by reducing the potential for dilution of minority voters. Jurisdictions seeking to avoid the threat of a lawsuit over their district lines could adopt one of these methods to replace winner-take-all districts.
Second, jurisdictions could adopt one of these voting methods as part of settlement agreements or courts could do so as temporary remedies. This is frequently done in suits under the Voting Rights Act, where a defendant agrees to adopt another voting system––often cumulative or limited voting–– designed to bolster representation of a minority group that had been marginalized under the previous voting system. See, e.g., Dillard v. Chilton County Bd. of Educ., 699 F. Supp. 870 (M.D. Ala. 1988) (approving a settlement agreement to implement cumulative voting for a county commission and board of education in a Voting Rights Act suit); Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. Ala. 1988) (approving a settlement agreement to implement limited voting for city councils in a Voting Rights Act suit).

20
Should this Court recognize that partisan gerrymanders present a justiciable constitutional claim, States will have the choice to use tested and effective systems. Independent commissions take partisanship out of gerrymandering, while voting systems distinct from winner-take-all elections in single member districts provide built-in resistance to gerrymanders.
Given the magnitude of the harm that occurs due to partisan gerrymandering, this Court should allow constitutional violations to proceed to the remedy stage. A rule against partisan gerrymandering would encourage States to consider solutions at the beginning of the process—thereby leading to less litigation in the long term. In short, States have a variety of solutions that would prevent partisan gerrymandering.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully Submitted,

Andrew Spencer David O’Brien FAIRVOTE 6930 Carroll Ave, Ste 240 Takoma Park, Maryland 20912

Justin A. Nelson Counsel of Record
Alejandra C. Salinas SUSMAN GODFREY L.L.P. 1000 Louisana, Ste 5100 Houston, Texas 77002 (713) 651-9366 jnelson@susmangodfrey.com

Counsel for Amici Curiae

 
 No. 16-1161
In the Supreme Court of the United States
BEVERLY R. GILL, ET AL.,
Appellants,
v.
WILLIAM WHITFORD, ET AL.,
Appellees.
On Appeal from the United States District Court for the Western District of Wisconsin
BRIEF OF AMICI CURIAE ELECTION LAW AND CONSTITUTIONAL LAW SCHOLARS IN
SUPPORT OF APPELLEES
BRADLEY S. PHILLIPS Counsel of Record
MUNGER, TOLLES & OLSON LLP
350 South Grand Ave 50th Floor Los Angeles, CA 90071 brad.phillips@mto.com (213) 683-9100
Counsel for Amici Curiae

i TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE................................. 1
SUMMARY OF ARGUMENT ..................................... 1
ARGUMENT ................................................................ 5
A. The Right of Association Protects an Individual’s Ability to Enhance Her Political Influence by Associating with Others ......................... 5
B. The Right of Association Forbids Districting that Discriminatorily Burdens Political Association Based on Party Affiliation.................... 12
C. Wisconsin’s Redistricting Plan Violates Plaintiffs’ Associational Rights.................................................... 21
CONCLUSION .......................................................... 25
APPENDIX OF AMICI CURIAE .............................. 1a

ii
TABLE OF AUTHORITIES
Page(s)
CASE
Anderson v. Celebrezze, 460 U.S. 780 (1986) ...................................2, passim
Bates v. Little Rock, 361 U.S. 516 (1960) .............................................. 15
Branti v. Finkel, 445 U.S. 507 (1980) ................................................ 7
Burdick v. Takushi, 504 U.S. 428 (1992) ...................................2, passim
Bush v. Vera, 517 U.S. 952 (1996) .............................................. 19
California Democratic Party v. Jones, 530 U.S. 567 (2000) ........................................ 11, 13
Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) ................................................ 9
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ................................................ 6
Clingman v. Beaver, 544 U.S. 581 (2005) .............................................. 11
Cooper v. Harris, 137 S.Ct. 1455 (2017) ........................................... 20

iii
Davis v. Bandemer, 478 U.S. 109 (1986) .............................................. 22
Elrod v. Burns, 427 U.S. 347 (1976) .................................. 2, 7, 8, 13
Eu v. San Francisco Co. Democratic Cent. Comm., 489 U.S. 581 (1989) .............................................. 11
Gaffney v. Cummings, 412 U.S. 735 (1973) .................................. 14, 17, 18
Kusper v. Pontikes, 414 U.S. 51 (1973) .................................. 8, 9, 15, 16
NAACP v. Button, 371 U.S. 415 (1963) ...................................... 6, 7, 15
NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449 (1958) .......................................... 6, 15
Norman v. Reed, 502 U.S. 279 (1992) .............................................. 15
Police Department v. Mosley, 408 U.S. 92 (1972) .................................................. 5
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ................................................ 5
Romer v. Evans, 517 U.S. 620 (1996) .............................................. 19
Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) .................................................. 7

iv
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) .............................................. 11
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ................................................ 5
United Public Workers v. Mitchell, 330 U.S. 75 (1947) .................................................. 7
Vieth v. Jubelirer, 541 U.S. 267 (2004) .......................................... 2, 13
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) .............................................. 11
Whitford v. Gill, 218 F.Supp.3d 837, 854 (W.D. Wis. 2016).................................................... 18, 21, 22, 23
Williams v. Rhodes, 393 U.S. 23 (1968) ........................................ 2, 8, 10
CONSTITUTIONAL PROVISIONS
First Amendment............................................1, passim
Fourteenth Amendment ............................ 2, 14, 16, 17
Equal Protection Clause ........................................ 2, 14

v
OTHER AUTHORITIES
Alan I. Abramowitz, THE DISAPPEARING CENTER: ENGAGED CITIZENS, POLARIZATION, AND AMERICAN DEMOCRACY (2010) ................................................. 4
Larry Bartels, Partisanship and Voting Behavior, 44 AM. J. POL. SCI. 35 (2000) ...................................................................... 4
Guy-Uriel Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Calif. L. Rev. 1209, 1249 (2003) ........................... 12
Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 Am. Pol. Sci. Rev. 1251 (1987) .................................................................... 18
Michael S. Lewis-Beck, et al., THE AMERICAN VOTER REVISITED (2011) ....................... 4
Nicole E. Mellow, Voting Behavior: Continuity and Confusion in the Electorate, in THE ELECTIONS OF 2016, 87, 90-92 (Michael Nelson, ed., 2017)........................................................................ 4
Warren E. Miller & J. Merrill Shanks, THE NEW AMERICAN VOTER 146-150 (1996) ...................................................................... 4

vi
SOLUTIONS TO POLITICAL POLARIZATION IN AMERICA (Nathaniel Persily ed., 2015)........................................................................ 4
Pew Research Ctr., Political Polarization in the American Public: How Increasing Ideological Uniformity and Partisan Antipathy Affect Politics, Compromise and Everyday Life 18 (2014), http://www.peoplepress.org/files/2014/06/6-12-2014Political-Polarization-Release.pdf.......................... 4
Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 Calif. L. Rev. 273, 276-81 (2011) ...................................................................... 4
Lori A. Ringhand, Voter Viewpoint Discrimination: A First Amendment Challenge to Voter Participation Restrictions, 13 Election L.J. 288, 291-93 (2014) .......................................................... 5
Laura Royden & Michael Li, Extreme Maps (2017), available at https://www.brennancenter.org/sites/ default/files/publications/Extreme%2 0Maps%205.16.pdf. .............................................. 18
David Schultz, The Party’s Over: Partisan Gerrymandering and the First Amendment, 36 Cap. U. L. Rev. 1, 45-47 (2007) ........................................................ 8

vii
Daniel P. Tokaji, Voting Is Association, 43 Fla. St. L. Rev. 763, 777, 785 (2016) .................................................................... 10
Sean M. Theriault, PARTY POLARIZATION IN CONGRESS (2008) ................................................ 4

INTEREST OF AMICI CURIAE1
Amici are twelve nationally recognized scholars and teachers of Election Law and Constitutional Law. All of them have substantial expertise on the subjects of redistricting and the First Amendment. Each has authored multiple scholarly articles and books on constitutional law and the democratic process. Their scholarship and experience lead them to conclude, for the reasons explained below, that the First Amendment right of freedom of association should be understood to require strict scrutiny of redistricting plans that discriminate based on political-party affiliation—partisan gerrymanders—and that Wisconsin’s plan fails such scrutiny and is unconstitutional. A full list of amici, including brief summaries of their credentials and relevant scholarship, appears in the Appendix.
SUMMARY OF ARGUMENT
The First Amendment right to freedom of association protects both an individual’s ability to exercise political influence by joining with like-minded others, and the right to be free from discrimination based on the political viewpoint of the groups that one joins. There is no more important way in which citizens seek to advance their political beliefs than by associating with political parties. As this Court has long recognized, party-based discrimination is anathema
1 No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel has made a monetary contribution intended to fund the preparation or submission of the brief. All parties have either filed with the Clerk a letter of blanket consent to the filing of briefs of amici curiae or given a written consent to the filing of this brief that accompanies this brief.

2
to the First Amendment because it infringes on individual liberty and distorts the electoral process. See Elrod v. Burns, 427 U.S. 347, 355-56 (1976) (plurality opinion) (recognizing that discrimination based on political party violates the First Amendment right of association because it inhibits “the individual's ability to act according to his beliefs and to associate” and “tips the electoral process in favor of the incumbent party”).
Under this Court’s precedents, the right to freedom of association does more than just safeguard the right to join a political party or other group of like-minded people. It also prohibits state regulations that discriminatorily burden a political group’s ability to influence the electoral process. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 788 (1986); Williams v. Rhodes, 393 U.S. 23, 31 (1968). As Justice Kennedy suggested in Vieth v. Jubelirer, 541 U.S. 267 (2004), redistricting laws that discriminatorily burden one political party at the expense of another—partisan gerrymandering—effect this type of injury and warrant strict scrutiny. Unless they are narrowly tailored to a compelling state interest, such laws must be struck down.
Recognizing that partisan gerrymandering implicates the right of association is fully consistent with this Court’s right-to-vote cases under the Equal Protection Clause. The Court has long recognized the relationship between expressive association and voting, applying the same standard to association claims under the First Amendment and right-to-vote claims under the Fourteenth Amendment. See Anderson, 460 U.S. at 788-90; Burdick v. Takushi, 504 U.S. 428, 433-34 (1992). Recognition of an association-based partisan gerrymandering claim would not categorical-

3
ly foreclose any consideration of party affiliation in redistricting. But, where party affiliation is used to draw district lines in a manner that discriminates against a political party and its adherents by placing them at a significant disadvantage relative to their statewide voting strength, that would be a severe burden that triggers strict scrutiny. See id. at 434. Even then, the state could defend its plan by showing that it is narrowly tailored to further a compelling interest such as ensuring compactness or preserving political subdivisions.
There is ample guidance in First Amendment case law to define when a redistricting plan imposes a discriminatory burden on association that is of such a magnitude to warrant heightened scrutiny. Here, there can be no doubt that Wisconsin’s plan severely burdens the associational rights of the minority party and its adherents. To cite just one example of the abundant evidence of party-based discrimination in the record: Republicans received roughly 48% of the statewide vote and garnered 60.6% of the state’s Assembly seats in 2012; two years later, when Democrats received the same percentage of the vote, they captured only 36.4% of the seats, or 24 seats fewer out of a total of 99. There is no compelling justification for the discriminatory burden that Wisconsin’s plan imposes on the non-dominant party and its adherents.
The importance and urgency of this Court’s adopting a legal standard by which to assess partisan gerrymandering cannot be overstated. The dominant party’s incentive and ability to entrench itself in power are stronger than ever, given the increase in parti-

4
san polarization2 and the hardening of partisan attitudes.3 Enhanced technological tools are now available that enable the dominant political party in any state to draw district lines so that it not only maximizes its immediate electoral gains but also—by drawing enough “safe” seats for itself—ensures that its electoral advantage will persist for years. Moreover, because partisanship has increased and stiffened, it is even more likely now than before that the effects of such partisan gerrymandering will persist. Such substantial and durable party-based discrimination in redistricting fundamentally undermines our democracy.
2 See, e.g., Alan I. Abramowitz, THE DISAPPEARING CENTER: ENGAGED CITIZENS, POLARIZATION, AND AMERICAN DEMOCRACY (2010); SOLUTIONS TO POLITICAL POLARIZATION IN AMERICA (Nathaniel Persily, ed., 2015); Sean M. Theriault, PARTY POLARIZATION IN CONGRESS (2008); Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 Calif. L. Rev. 273, 276-81 (2011); Pew Research Ctr., Political Polarization in the American Public: How Increasing Ideological Uniformity and Partisan Antipathy Affect Politics, Compromise and Everyday Life 18 (2014), http://www.people-press.org/files/2014/06/6-12-2014-PoliticalPolarization-Release.pdf.
3 Michael S. Lewis-Beck, et al., THE AMERICAN VOTER REVISITED, 127 (2011); Larry Bartels, Partisanship and Voting Behavior, 44 AM. J. POL. SCI. 35 (2000); Warren E. Miller & J. Merrill Shanks, THE NEW AMERICAN VOTER 146-50 (1996); Nicole E. Mellow, Voting Behavior: Continuity and Confusion in the Electorate, in THE ELECTIONS OF 2016, 87, 90-92 (Michael Nelson, ed., 2017).

5
ARGUMENT
A. The Right of Association Protects an Individual’s Ability to Enhance Her Political Influence by Associating with Others
This Court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Central to the right of association is “the advancement of political goals and ideas.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997). The right to expressive association arises in part from the individual interest in gathering with others and lending one’s voice to a larger cause. But that is not the only basis for this right. As this Court has recognized, the right of association also limits the dominant political group’s ability to discriminate against groups that espouse a rival point of view. This Court has thus recognized that the right of association extends to rules regulating the electoral process itself and has applied a balancing test under which rules that impose “severe” burdens trigger strict scrutiny.
Freedom of association is closely linked to the First Amendment’s prohibition on content and viewpoint discrimination. This Court has held that, “[a]bove all else, the First Amendment “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department v. Mosley, 408 U.S. 92, 95 (1972). This principle applies with special force where political speech is concerned, to ensure that the dominant political group may not stifle or diminish the collective voice of its opponents. See Lori A. Ringhand,

6
Voter Viewpoint Discrimination: A First Amendment Challenge to Voter Participation Restrictions, 13 Election L.J. 288, 291-93 (2014). This is in keeping with the long line of precedent holding that government discrimination against disfavored viewpoints or speakers contravenes the First Amendment. See Citizens United v. Federal Election Commission, 558 U.S. 310, 340-41 (2010) (citing cases).
Consistent with the viewpoint-neutrality principle, the Court’s earliest decisions protecting expressive association have restricted government efforts to discourage or punish individuals for joining groups with disfavored viewpoints. The first example is NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449 (1958), in which the Court found that a discovery request by the State of Alabama seeking the Clingmanidentities of NAACP members triggered strict scrutiny. The Court explained that the request, if granted, was “likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.” Id. at 462-63. The associational interest in Patterson thus went beyond the right of individuals simply to join the organization; it also included the right of those with a disfavored viewpoint not to be burdened in ways that interfered with achievement of their shared “political goals.” Id.
So too, in NAACP v. Button, 371 U.S. 415 (1963), the Court applied strict scrutiny to a Virginia statute that impeded free expression in the pursuit of associational viewpoints, in that case by inhibiting the NAACP’s solicitation of plaintiffs in civil-rights litigation. Such litigation, the Court explained, was “a form of political expression” and particularly “a means for achieving the lawful objectives of equality

7
of treatment by all government, federal, state and local, for the members of the Negro community.” Id. at 429. The Virginia statute threatened to undermine the NAACP’s ability to exercise political power to further its members’ viewpoints: there “inhere[d] in the statute the gravest danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority.” Id. at 434. It cut off a key “avenue open to a minority to petition for redress of grievances” and thereby to exert political power in furtherance of its viewpoints. Id. at 430.
This Court’s patronage cases similarly recognize that the right of association protects both the individual interest in associating with like-minded others and the collective interest in “the free functioning of the electoral process.” Elrod, 427 U.S. at 356. In Elrod, the Court held unconstitutional the practice of firing people from certain government jobs because of their party affiliation. After describing the harm to the individual liberty interest arising from this practice, the Elrod plurality explained that patronage “tips the electoral process in favor of the incumbent party” by allowing it to “starve [the] political opposition.” Id. See also id. at 371 n.6 (“Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system.”) (quoting United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947)). Later patronage cases go even further than Elrod in limiting government consideration of party affiliation. See, e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 74-76 (1990); Branti v. Finkel, 445 U.S. 507, 518 (1980). The principle underlying these decisions is viewpointneutrality, especially when it comes to government actions that might affect the electoral process. See

8
David Schultz, The Party’s Over: Partisan Gerrymandering and the First Amendment, 36 Cap. U. L. Rev. 1, 45-47 (2007).
The First Amendment right of association thus implicates both the systemic interest in a fair political process and the individual interest in furthering one’s beliefs, both of which underlie the patronage cases. Elrod and its progeny also illustrate the centrality of political parties to the right of association—and the corresponding harms arising from the dominant party’s discrimination against a non-dominant party to entrench itself in power.
These same principles have guided the Court’s consideration of state laws directly regulating the electoral process. The Court first held voting itself to be a form of expressive association in Williams v. Rhodes, 393 U.S. 23 (1968), striking down an Ohio ballotaccess law that disadvantaged new political parties while giving “the two old established parties a decided advantage.” Id. at 31. Later, in Kusper v. Pontikes, 414 U.S. 51 (1973), the Court struck down an Illinois law providing that a voter could not vote in a party primary if, in the prior 23 months, the voter had cast a ballot in the primary of another political party. The Court held that the law burdened the plaintiff’s right of association because it impaired her ability to “associate effectively with the party of her choice.” Id. at 58. The problem with the statute was not that it rendered the plaintiff unable to associate with the party of her choice: she plainly could, just not in the particular context of the party’s primary elections. Id. Rather, the fatal problem was that the statute “constituted a ‘substantial restraint’ and a ‘significant interference’” on a “basic function” and “prime objective” of associating with others in the ex-

9
ercise of political power, namely choosing a party’s candidates by participating in primary elections. Id. See also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 296 (1981) (recognizing that ordinance limiting contributions and expenditures in ballot measure campaigns impermissibly “hobble[d] the collective expressions of a group,” limiting its power to advocate effectively for the political views of its members).
These cases recognize that associational interests are implicated when people lend their individual voices to a broader chorus to advance their shared political viewpoint, both inside and outside the electoral process. In Anderson v. Celebrezze, 460 U.S. 780 (1983), this Court applied this principle to discrimination based on which chorus of voices one chooses to join.
Plaintiffs in Anderson challenged an Ohio statute that required independent candidates seeking a place on the ballot to declare their candidacies before the established political parties had chosen their candidates. Id. at 782-83, 799. The Court concluded that this law “burden[ed] voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying-point for likeminded citizens.” Id. at 788. It explained that “[a] burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment” because it “discriminates against those candidates and—of particular importance— against those voters whose political preferences lie outside the existing political parties.” Id. at 793-94. In short, the Ohio statute placed a “particular burden

10
on an identifiable segment of Ohio’s independentminded voters,” hindering the ability of such voters to band together and influence the political process. Id. at 792.
Like previous associational-rights cases, Anderson was concerned with the discrimination the law imposed on a group of voters’ attempting to further their political beliefs through the electoral process. The statute “limit[ed] the opportunities of independentminded voters to associate in the electoral arena to enhance their political effectiveness as a group,” restrictions that “threaten to reduce diversity and competition in the marketplace of ideas.” Id. at 794; see also id. at 788 n. 8 (“the right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and denied and equal opportunity to win votes”) (quoting Williams v. Rhodes, 393 U.S. 23, 31 (1968)). Under Anderson, courts should weigh the “character and magnitude” of the injury to associational and voting rights against the state’s asserted interests. 460 U.S. at 789. While “reasonable, nondiscriminatory” restrictions may generally be justified by the state’s “important regulatory interests,” the Court held, a stronger state justification is required if the law discriminates against an identifiable political group. Id.
The Court later clarified that strict scrutiny applies only to “severe” restrictions, as opposed to “‘reasonable, nondiscriminatory’” ones. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 788). Since Anderson and Burdick, the Court has continued to emphasize that advancement of one’s beliefs through a political party is central to freedom of association. See Daniel P. Tokaji, Voting Is Association, 43 Fla. St. L. Rev. 763, 777, 785 (2016).

11
In Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), for instance, the Republican Party challenged a Connecticut statute prohibiting independent voters from participating in its primary. The Republican Party argued that the statute “impermissibly burden[ed] the right of its members to determine for themselves with whom they will associate, and whose support they will seek, in their quest for political success.” Id. at 214. The Court agreed, concluding that the statute “limits the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.” Id. at 216. See also California Democratic Party v. Jones, 530 U.S. 567 (2000) (recognizing associational rights of major parties); Eu v. San Francisco Co. Democratic Cent. Comm., 489 U.S. 581 (1989) (same).
Of course, not all burdens on political party association violate the First Amendment. See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 458 (2008) (upholding blanket primary that did not severely restrict party’s associational rights); Clingman v. Beaver, 544 U.S. 581, 589 (2005) (upholding law prohibiting members of one party from voting in another party’s primary because law did not impose a severe burden). But, where the state severely restricts the associational right of a political party and its adherents by imposing discriminatory burdens, strict scrutiny applies.
The Court’s freedom-of-association cases thus do more than simply protect individuals’ ability to associate with like-minded others. They are also concerned with the ability to advance the group’s shared viewpoints by translating that association into politi-

12
cal power through the ballot. See Guy-Uriel Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Calif. L. Rev. 1209, 1249 (2003) (“[I]n protecting political association, the First Amendment protects more than private association. [It] also extends to election laws that burden the individual’s right to make free choices and to associate politically through the vote.”) Most importantly for this case, they limit a dominant political party’s power to discriminate against a rival group and its supporters by diminishing their collective voice in the electoral process.
B. The Right of Association Forbids Districting that Discriminatorily Burdens Political Association Based on Party Affiliation
As the preceding section demonstrates, this Court’s right-of-association cases establish that laws discriminating on the basis on party affiliation trigger strict scrutiny under the First Amendment. This principle is grounded in both the individual liberty interest in affiliating with others to advance one’s beliefs and the collective interest in preventing the dominant political group from impairing the free functioning of the electoral process. In assessing election laws alleged to violate the right of association, this Court has articulated a balancing standard, under which “severe” restrictions are subject to strict scrutiny while “reasonable, nondiscriminatory” ones receive more deferential review.
This Court should apply this established standard to partisan gerrymandering. As Justice Kennedy has recognized, redistricting laws are comparable to other laws that discriminatorily restrict political-party association, including those that accomplish this objective through regulation of the electoral process. See

13
Vieth, at 314-16 (citing Elrod, California Democratic Party, Eu, and Anderson). Redistricting laws plainly affect opportunities for association: the boundaries of a district define which voters may associate with one another for purposes of advancing their viewpoints by voting for candidates within that district. A districting scheme that discriminates against a particular association of like-minded individuals—and especially a political party, which is the primary means through which individuals organize to advance their political beliefs at the ballot box—will impede the efficacy of that group’s efforts to achieve its political aims.
It is well-established that “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring); see also id. (recognizing the “First Amendment interest of not burdening or penalizing citizens because of . . . their association with a political party”). In the context of redistricting, as in other associational-rights cases, “[t]he inquiry is not whether political classifications were used,” but “whether political classifications were used to burden a group’s representational rights.” Id. at 315. Under this Court’s freedom-of-association case law, a districting plan that imposes discriminatory burdens on adherents to a particular viewpoint—for instance, the independent-minded voters in Anderson or the supporters of the minority political party in this case—runs afoul of the First Amendment because such a plan violates the associational rights of citizens seeking to join their voices in support of candidates sharing that viewpoint.

14
Applying the Court’s freedom-of-association jurisprudence to redistricting is fully consistent with the basic principles that have long guided redistricting decisions under the Equal Protection Clause. The Court has applied the same legal standard to both association and voting claims for over three decades. See Anderson, 460 U.S. at 787-89 & n.7 (recognizing that ballot-access law implicated “overlapping” associational and voting rights and applying same standard to both); Burdick, 504 U.S. at 433-34 (applying same standard to both voting and association claims). There is no tension between the Court’s freedom-ofassociation case law and the Court’s observation that “[p]olitics and political considerations are inseparable from districting and apportionment.” Gaffney v. Cummings, 412 U.S. 735, 753 (1973). Political gerrymandering does not infringe on associational rights merely by virtue of its consideration of political party affiliation. Instead, political gerrymandering infringes on associational rights when it discriminatorily burdens the proponents of a particular viewpoint.
In Gaffney, the Court upheld a redistricting plan that plainly protected associational rights: a statewide plan drawn to “achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties, the only two parties in the State large enough to elect legislators from discernible geographic areas.” Id. at 752; see also id. (“We are quite unconvinced that the reapportionment plan … violated the Fourteenth Amendment because it attempted to reflect the relative strength of the parties in locating and defining election districts.”). Such a plan, which sought to ensure that the elected representatives roughly mirrored the electorate, cannot be said to place an undue burden on either party. To the contrary, the Gaffney plan considered political

15
viewpoint to avoid infringement on associational rights. By contrast, a plan that discriminates against one political party and in favor of the other should trigger strict scrutiny under the First Amendment.
As this Court’s decisions make clear, state action need not completely “deprive [plaintiffs] of all opportunities to associate with the political party of their choice” in order to warrant First Amendment scrutiny. Kusper, 414 U.S. at 58. Instead, the Court looks to whether the action “constituted a ‘substantial restraint’ and a ‘significant interference’ with the exercise of the constitutionally protected right of free association.” Id. (quoting Patterson, 357 U.S. at 462 and Bates v. Little Rock, 361 U.S. 516, 523 (1960)). A “significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest” but rather must be narrowly tailored to serve a compelling state interest. Id.; see also Button, 371 U.S. at 438 (“The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.”).
Similarly, this Court’s voting and associational rights cases call for “[a] court considering a challenge to a state election law” to assess “‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.’” Burdick, 504 U.S. at 434 (1992) (quoting Anderson, 460 U.S. at 789). When First Amendment rights are “subjected to ‘severe’ restrictions” by state election laws, the laws will survive only if they are “‘narrowly drawn to advance a state interest of compelling importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). By

16
contrast, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788).
A state election law, therefore, will not trigger heightened scrutiny on freedom-of-association grounds unless it imposes a sufficiently large and lasting burden on association. As this Court’s decisions make clear, a restriction on association is “severe” and warrants strict scrutiny where it is not “reasonable [and] nondiscriminatory.” Thus, in both Kusper and Anderson, the Court applied strict scrutiny where the challenged laws imposed discriminatory burdens on independent-minded voters and candidates. See Anderson, 460 U.S. at 793 (“A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and—of particular importance—against those voters whose political preferences lie outside the existing political parties.”); Kusper, 414 U.S. at 58 (strict scrutiny applied where state law forbade voters from participating in one party’s primary within 23 months after voting in another party’s primary).
In the context of redistricting, then, there must be a significant discriminatory effect on a political party and its adherents for the restriction to be deemed “severe.” The mere fact that a redistricting plan yields districts that tend to result in one party’s having an electoral advantage over another does not alone demonstrate discrimination or compel strict scrutiny. Cf. Burdick, 504 U.S. at 433. A redistrict-

17
ing plan that achieves a “rough approximation” in representation of those parties “large enough to elect legislators from discernible geographic areas” would not trigger strict scrutiny. Gaffney, 412 U.S. at 752. In those circumstances, the character and magnitude of any burden would not justify a finding that associational rights had been severely restricted. See id. at 434 (“[W[hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”) (quoting Anderson , 460 U.S. at 788).
But, where redistricting discriminates against a political party and its members by placing them at a significant disadvantage relative to their statewide voting strength, strict scrutiny is warranted. Cf. Gaffney, 412 U.S. at 754 (“[J]udicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.”). That would include cases in which a state plan undertakes “to minimize or eliminate the political strength of any group or party.” Cf. id. (holding that state plan may not be invalidated where “it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough proportional representation in the legislative halls of the State”).
The “efficiency gap” between political parties used in the district court here—“the difference between the parties’ respective wasted votes in an election,” defined as those cast either for a losing candidate or for a winning candidate but unessential to ensure that

18
candidate’s victory, “divided by the total number of votes cast”—is one metric that is highly probative of when strict scrutiny is warranted. See Whitford v. Gill, 218 F.Supp.3d 837, 854 (W.D. Wis. 2016). The efficiency gap is a straightforward measure of the differential abilities of the parties’ voters, all else being equal, to enhance their political power through association. A gap of only a handful of percentage points typically will suggest a nondiscriminatory plan of the sort approved in Gaffney. But an efficiency gap in excess of ten percent, as exists here—in conjunction with the other evidence of discrimination in the record—reflects a disproportionately skewed plan, to the detriment of the associational rights of those who support the views advanced by the disadvantaged political party.4
The persistence of a sizable efficiency gap over multiple elections will be indicative of a discriminatory and therefore severe First Amendment burden. So too will actual election results under a redistricting plan where one party is consistently able to garner a share of legislative seats significantly larger than its share of votes and the other party a share of seats significantly smaller than its share of votes. Evi-
4 There are multiple ways to measure the burden that a redistricting plan imposes on the non-dominant party. They include the efficiency gap; the seats-to-vote curve, see Gary King & Robert X. Browning, Democratic Representation and Partisan Bias in Congressional Elections, 81 Am. Pol. Sci. Rev. 1251 (1987); and the mean-median vote share difference, see Laura Royden & Michael Li, Extreme Maps (2017), available at https://www.brennancenter.org/sites/default/files/publications/E xtreme%20Maps%205.16.pdf., at 4. These metrics are more extensively addressed in Plaintiffs-Appellees' brief and other amicus briefs being filed in support of their position.

19
dence of legislative intent to create or entrench a partisan imbalance likewise will suggest First Amendment harm—for instance if there are statements by legislators urging a plan that that would prevent the opposing party from gaining a majority of seats, even when it receives a majority of votes.
Even if a redistricting plan imposes a significant discriminatory burden on one political party, it could still survive if it is narrowly tailored to serve a compelling government interest. Such a plan could not, of course, be justified by any purported interest in favoring the dominant political party over a less popular one. See Romer v. Evans, 517 U.S. 620, 634 (1996) (“[I]f the constitutional conception of ‘equal protection of the laws means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”) But a districting plan might survive if its disparate impact on one political party were justifiable in light of traditional redistricting principles such as natural geographical boundaries, contiguity, compactness, and conformity to political subdivisions. See Bush v. Vera, 517 U.S. 952, 959-960 (1996) (identifying traditional redistricting principles). This might be the case where, for example, a party’s members are arrayed geographically such that a districting plan reflecting the party’s statewide voting strength would require non-compact and unusually shaped districts. If a minority party’s members were widely dispersed across a state, a statewide districting plan that yielded a proportion of legislative seats lower than the proportion of the party’s supporters might be justifiable. The same would be true if a party’s members were densely concentrated in several pockets of the state where it possesses super-majorities. Under such circumstances, the state’s

20
interest in consistency and contiguity of districts might justify the burden on associational rights.
The standard we advocate does not guarantee any particular degree of political power. Rather, it protects against significant discriminatory burdens on association, in service of the central First Amendment interest in avoiding viewpoint discrimination. A party may face inherent disadvantages by virtue of geography. A state with only a few congressional districts may adopt a plan that favors one party because such a plan is necessary to avoid non-compact districts or splits of political subdivisions. But a state may not adopt a plan that discriminatorily burdens adherents of a particular viewpoint, such that their avenues to political power are effectively blocked while the dominant party is entrenched.
Nor would our proposed standard foreclose any consideration of political party in drawing lines. Rather, consistent with established voting and association precedent, it would prohibit only those plans that impose a severe burden on an identifiable political group that is not narrowly tailored to further a compelling interest. In this context, that means a plan that discriminates significantly based on politicalparty affiliation and cannot be justified based on traditional redistricting principles. To make this judgment does not require that the courts assess the substance of individuals’ or groups’ political viewpoints. Instead, it requires attention to disparities between voting strength and representational strength, informed by attention to traditional districting principles, an area in which this Court has extensive experience. See, e.g., Cooper v. Harris, 137 S. Ct. 1455 (2017).

21
C. Wisconsin’s Redistricting Plan Violates Plaintiffs’ Associational Rights
Viewed under the established freedom-ofassociation standard, this case is not even close. The Wisconsin plan imposes substantial and lasting discriminatory burdens on the associational rights of individuals who support one political party, and these burdens are not narrowly tailored to a compelling government interest. Accordingly, the district court’s judgment should be affirmed.
The discriminatory burden on associational rights here is pronounced. Act 43 dramatically enhances the voting strength of Republican voters in the Wisconsin’s State Assembly, to the detriment of Democratic voters. For instance, in 2012, Republican candidates received 48.6% of the statewide vote but secured 60.6% of the state’s 99 Assembly seats. Whitford, 218 F.Supp.3d at 899. In 2014, Republican candidates received 52% of the vote and controlled 63.6% of the Assembly. Id. In other words, when Democrats garnered 48% of the statewide vote, they obtained only 36.4% of the Assembly seats, whereas when Republicans garnered essentially the same proportion of the statewide vote two years earlier they obtained 60.6% of the Assembly seats—24 more seats out of 99 for the same proportion of supporters. See id. at 901. Witnesses for Appellees showed that “under any likely electoral scenario,” given the redistricting, “the Republicans would maintain the legislative majority,” id. at 899, a result amply illustrated by the 2012 and 2014 elections, id. at 900-01.
Efficiency-gap methodology reinforces this conclusion. Appellees’ experts showed that Democratic supporters “wasted” 10% to 13% more votes than Republican supporters in the 2012 and 2014 elections,

22
by virtue of the greater proportion of Democratic supporters who were either “packed” into safe Democratic districts or “cracked” across multiple districts with thin Republican majorities. Id. at 904; see Davis v. Bandemer, 478 U.S. 109, 117 n.6 (1986) (explain “the familiar techniques of political gerrymandering”). It was partly by virtue of this disparity in “wasted” votes that Republicans were able to amass such an extensive majority in the Assembly even when they had fewer voters statewide than Democrats: the choice of an additional Democratic voter to participate held much less potential to influence an election than the choice of an additional Republican voter. In other words, association by a Democratic voter with other Democratic voters had a much lower likelihood of enhancing the political influence of that voter than did association by an otherwise similarly situated Republican voter.
This Court’s jurisprudence calls for assessment of the “character and magnitude” of the burden on voting and associational rights. The discriminatory burdens imposed by Wisconsin’s plan are unusually large in their magnitude and enduring in character. Appellees’ experts showed that an efficiency gap above 7% in a districting plan’s first election year will continue to favor the entrenched party throughout the life of the plan. Id. at 905. An efficiency gap that can be expected to persist in this fashion necessarily would burden the associational rights of the disadvantaged party over the life of the plan. Here, Appellees’ expert testified that Act 43 would average a proRepublican efficiency gap of 9.5% over the decennial period, such that, in the absence of an “unprecedented political earthquake,” Democrats would remain at a disadvantage. Id. This is the definition of a severe and invidious associational burden: individuals be-

23
longing to a group defined by belief or viewpoint are unable, as a result of discriminatory legislation, to associate with one another in a manner that would otherwise enhance their political power.
Evidence of legislative intent to discriminatorily burden a particular associational viewpoint is not necessarily required to make a showing of a First Amendment violation. Such evidence can, however, constitute circumstantial evidence that there such a burden exists, as the legislature intended. Here, there can be no dispute that the Assembly members behind the redistricting plan sought to discriminatorily favor Republicans. Proponents of the redistricting devised a partisan score to reflect the political makeup of districts, and they confirmed the accuracy of the score with a statistician. Id. at 890-91. Draft maps “bore names that reflected the level of partisan advantage achieved.” Id. at 891. Spreadsheets “collected the partisan scores, by district, for each of the map alternatives.” Id. Graphs were employed to allow non-statisticians to easily assess the partisan advantage of different maps. Id. Memoranda regarding the proposed districts referred only to the partisan breakdown, without “any information about contiguity, compactness, or core population.” Id. at 894. One mapmaker told the Republican caucus: “The maps we pass will determine who’s here 10 years from now,” and “[w]e have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.” Id. This evidence, while it might not by itself show a discriminatory burden on associational rights, underscores that such a burden was both sought and achieved.
In this case, the discriminatory burden is not narrowly tailored to a compelling government interest.

24
As the district court found, although Wisconsin’s natural political geography affords “Republicans a modest natural advantage in districting,” this advantage cannot explain the vast disparities under Act 43. Id. at 921. It is at least relevant that, as discussed above, the clear intention of the redistricting’s proponents was to serve partisan interests, rather than traditional districting principles: there is no evidence of any effort to tailor the plan based on traditional redistricting principles such as natural geographical boundaries, contiguity, compactness, or conformity to political subdivisions. Indeed, the proponents of Act 43 did not even mention these principles in pitching the Act to other members of the Assembly; instead, they noted only the partisan consequences of the redistricting. Id. at 894. As Appellees demonstrated, moreover, it is easily possible to draw districts with an efficiency gap well below the 10% to 14% range observed under Act 43, and indeed well below the 7% threshold at which a gap can be expected to remain throughout the decennial life of the plan. Appellees’ witness devised a districting map comparable to Act 43 with a pro-Republican efficiency gap of only 2.2% for 2012. Id. at 920. The sheer magnitude of this difference illustrates what is obvious from the clear intention of the Act: that the discriminatory burden on associational rights was not the necessary byproduct of other governmental interests, but rather the purpose and primary consequence of the Act.

25
CONCLUSION The judgment of the district court should be affirmed. Respectfully submitted.
BRADLEY S. PHILLIPS Counsel of Record
MUNGER, TOLLES & OLSON LLP
350 South Grand Ave 50th Floor Los Angeles, CA 90071 brad.phillips@mto.com (213) 683-9100
September, 2017

APPENDIX

1a
APPENDIX OF AMICI CURIAE*
Guy-Uriel Charles is the Charles S. Rhyne Professor of Law and Senior Associate Dean for Faculty and Research at Duke Law School. He is the author of Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209 (2003); and Democracy and Distortion, 92 Cornell L. Rev. 601 (2007); and co-author of Election Law in the American Political System (2012).
Gabriel J. Chin is the Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law. He is the author of Justifying a New Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule, 94 B.U. L. Rev. 1551 (2014); The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev. 65 (2008) (with Randy Wagner); and Reconstruction, Felon Disenfranchisement and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?, 92 Geo. L.J. 259 (2004).
Yasmin Dawood is the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and Associate Professor of Law and Political Science at the University of Toronto. She is the author of Campaign Finance and American Democracy, 18 Amer. Rev. Pol. Sci. 1 (2015); Democracy and the
* Where provided, institutional affiliations are for informational purposes only and are not intended to indicate endorsement by the institution of the views of the individual amicus.

2a
Problem of the Partisan State, Nomos LIV: Loyalty 257 (2013); and Freedom of Speech and Democracy: Rethinking the Conflict Between Liberty and Equality, 26 Can J. L. Juris. 293 (2013).
Tabatha Abu El-Haj is an Associate Professor of Law at Drexel University’s Kline School of Law. She is the author of Friends, Associates and Associations: Theoretically and Empirically Grounding the Freedom of Association, 56 Ariz. L. Rev. 53 (2014); and Changing the People: Legal Regulation and American Democracy, 86 NYU L. Rev. 1 (2011).
Anita S. Krishnakumar is the Associate Dean for Faculty Scholarship and Professor of Law at St. John's University School of Law. She is the author of Towards a Madisonian, Interest-Group-Based Approach To Lobbying Regulation, 58 Ala. L. Rev. 513 (2007), and Interpretive Divergence All the Way Down: A Response to Aaron-Andrew P. Bruhl and Ethan J. Leb, Electing Judges and Statutory Interpretation, 79 U. Chi. L. Rev. 1215 (2012), in Dialogue: The University of Chicago Law Review Online (February 2013); and the editor of the SSRN eJournal on Legislation and Statutory Interpretation.
Gregory P. Magarian is Professor of Law at Washington University in St. Louis. He is the author of Managed Speech: The Roberts Court’s First Amendment (Oxford University Press 2017); Market Triumphalism, Electoral Pathologies, and the Abiding Wisdom of First Amendment Access Rights, 35 Hofstra L. Rev. 1373 (2007); and Regulating Political Parties Under a “Public Rights” First Amendment, 45 Wm. & Mary L. Rev. 1939 (2003).

3a
Lori A. Ringhand is J. Alton Hosch Professor of Law and Associate Dean for Academic Affairs at the University of Georgia School of Law. She is the author of Voter Viewpoint Discrimination: A First Amendment Challenge to Voter Participation Restrictions, 13 Election L.J. 288, 291-93 (2014); and co-author of Constitutional Law: A Context and Practice Casebook (2d ed. 2017).
Bertrall Ross is the Chancellor's Professor of Law at UC Berkeley School of Law. He is the author of The Representative Equality Principle, Disaggregating the Equal Protection Intent Standard, 41 Fordham L. Rev. 875 (2013); Testing the Gerrymandering Harm, __ Sup. Ct. Rev ___ (Forthcoming 2018); and Addressing Inequality in the Age of Citizens United (forthcoming 2018).
David Schultz is a Hamline University Professor of Political Science, and holds adjunct appointments at both the University of Minnesota Law School and the University of St. Thomas School of Law. He is the author of The Party’s Over: Partisan Gerrymandering and the First Amendment, 36 Cap. U. L. Rev. 1, 30 (2007); and Election Law and Democratic Theory (2014); and co-author of Constitutional Law in Contemporary America (2017) and the Encyclopedia of Money in American Politics (2018).
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at The Ohio State University Moritz College of Law. He is the author of Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press, 2009)

4a
and co-author of Separation of Powers Law: Cases and Materials (4th ed. 2018) (forthcoming).
Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law. He is the author of Voting Is Association, 43 Fla. St. L. Rev. 763, 777, 785 (2016); and Gerrymandering and Association, __ Wm. & Mary L. Rev. __ (forthcoming 2018); and co-author of Election Law: Cases and Materials (6th ed. 2017).
Ciara Torres-Spelliscy, Associate Professor of Law and Leroy Highbaugh Sr. Research Chair at Stetson University College of Law. She is the author of Corporate Citizen?: An Argument for the Separation of Corporation and State and The Democracy We Left Behind in Greece and McCutcheon, 89 NYU L. Rev. On. 112 (2014).

 
 NO. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, et al., v.

Appellants,

WILLIAM WHITFORD, et al., Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF OF INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, NATIONAL LEAGUE OF CITIES,
U.S. CONFERENCE OF MAYORS, INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION, AND
LOCAL GOVERNMENT LAW PROFESSORS, AS AMICI CURIAE IN SUPPORT OF APPELLEES

Charles W. Thompson, Jr. Amanda Kellar Karras International Municipal
Lawyers Association 51 Monroe Street, Suite 404 Rockville, MD 20850
Nestor M. Davidson Fordham University School of Law 150 W. 62nd Street New York, NY 10023

Paul A. Diller Counsel of Record
Willamette University College of Law
245 Winter St. SE Salem, OR 97301 (503) 370-6595 pdiller@willamette.edu

Counsel for Amici Curiae
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST OF
AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. The Importance of Local Government to Our
Constitutional Order . . . . . . . . . . . . . . . . . . . 9 II. Intentional Political Gerrymandering Can
Foment Excessive Preemption and Other Harms to Local Decisionmaking . . . . . . . . . 13 III. The Record of Preemption in States with Significant Recent Indicia of Intentional Partisan Gerrymandering . . . . . . . . . . . . . . 19 A. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . 24 C. North Carolina . . . . . . . . . . . . . . . . . . . . 28 D. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 E. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . 34 F. Other States . . . . . . . . . . . . . . . . . . . . . . 36 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

ii
TABLE OF AUTHORITIES
CASES
Ariz. State Legis. v. Ariz. Indep. Redist. Comm’n, 135 S. Ct. 2652 (2015) . . . . . . . . . . . . . . . . . . . . . 9
Avery v. Midland Cnty., 390 U.S. 474 (1968) . . . . . . . . . . . . . . . . . . 7, 9, 14
Black v. City of Milwaukee, 882 N.W.2d 333 (Wis. 2016) . . . . . . . . . . 7, 34, 35
Bond v. United States, 564 U.S. 211 (2011) . . . . . . . . . . . . . . . . . . . . . . . 9
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . 20
City of Cleveland v. State, No. CV-16-868008 (Ct. C.P. Cuyahoga Cnty., Ohio Jan. 31, 2017), appeal docketed, No. CA-17105500 (Ohio Ct. App. 2017) . . . . . . . . . . . . 33, 34
City of Dayton v. State, 2017 WL 3215532 (Ohio July 26, 2017) . . . . . . 34
In re City of Detroit, 504 B.R. 97 (Bankr. E.D. Mich. 2013) . . . . . . . . 26
City of El Cenizo v. Texas, No. SA-17-CV-404-OLG (W.D. Tex. Aug. 30, 2017) . . . . . . . . . . . . . . . . . 17
Fla. Carry, Inc. v. City of Tallahassee, 212 So. 3d (Fla. Dist. Ct. App. 2017) . . . . . . . . . 24

iii
Fla. Retail Fed’n, Inc. v. City of Coral Gables, No. 2016-018370-CA-01 (Fla. Cir. Ct. Mar. 9, 2017), appeal docketed, No. 3D17-562 (Fla. Dist. Ct. App. Mar. 15, 2017) . . . . . . . . . . . . . . . . 23, 24
Fla. Retail Fed’n, Inc., et. al., v. City of Miami Beach, No. 16-031886-CA-10 (Fla. Cir. Ct. Mar. 27, 2017), appeal docketed, No. 3D17-705 (Fla. Dist. Ct. App. Mar. 30, 2017) . . . . . . . . . . . . . . . . . . . 23
Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . 9
Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 6
Hunter v. City of Pittsburgh, 207 U.S. 161 (1907) . . . . . . . . . . . . . . . . . . . . . 6, 8
Jacobberger v. Terry, 320 N.W.2d 903 (Neb. 1982) . . . . . . . . . . . . . . . . 8
Lima v. State, 909 N.E.2d 616 (Ohio 2009) . . . . . . . . . . . . . . . . 33
Lochner v. New York, 198 U.S. 45 (1905) . . . . . . . . . . . . . . . . . . . . . . . . 5
Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002) . . . . . . . 21
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) . . . . . . . . . . . . . . . . . . . . . . 10
Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . . . 5, 8, 9

iv
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . 8, 12
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) . . . . . . . . . . . . . . . . . . . . . . 12
Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) . . . . . . . . . . . . . . . . . . . . passim
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) . . . . . . . . . . . . . . . . . . . . . . . 5
STATUTES
2002 Ohio Laws H 386 (codified as amended at OHIO REV. CODE ANN. §§ 1.63, 1349.25 to 1349.37 (West 2017)) . . . . . . . . . . . . . . . . . . . . . 33
2006 Ohio Laws S 82 (codified at OHIO REV. CODE ANN. § 9.481 (West 2017)) . . . . . . . . . . . . . . . . . 33
2006 Ohio Laws H 347 (codified at OHIO REV. CODE ANN. § 9.68 (West 2017)) . . . . . . . . . . . . . . . . . . 33
2011 Fla. Sess. Law Serv. ch. 2011-109 (codified at FLA. STAT. § 790.33 (2017)) . . . . . . . . . . . . . . . . 24
2011 Mich. Legis. Serv. P.A. 4 (H.B. 4214) (West) (codified at MICH. COMP. LAWS ANN. § 141.1501 West 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2012 Mich. Legis. Serv. P.A. 436 (S.B. 865) (West) (codified at MICH. COMP. LAWS ANN. § 141.1549 (West 2013)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2013 Fla. Sess. Law Serv. ch. 2013-200 (West) (codified as amended at FLA. STAT. § 218.077 (2017)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

v
2013 Ohio Laws S 342 (codified at OHIO REV. CODE ANN. § 4511 et. seq. (West 2017)) . . . . . . . . . . . 34
2013 Wis. Legis. Serv. 20 § 1269m (West) (codified at WIS. STAT. ANN. § 66.0418 (West 2017)) . . . . 35
2013 Wis. Legis. Serv. 20 § 1270 (West) (codified at WIS. STAT. ANN. § 66.0502 (West 2017)) . . . . . . 35
2014 R.I. Pub. Laws ch. 145, art. 11, § 4 (codified at R.I. GEN. LAWS § 28-12-25 (2017)) . . . . . . . . . . . 36
2015 Mich. Legis. Serv. P.A. 105 (West) (codified at MICH. COMP. LAWS ANN. §§ 123.1381-123.1396 (West 2017)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2015 Ohio Laws H 180 (codified at Ohio Rev. Code Ann. § 9.75 (West 2017)) . . . . . . . . . . . . . . . . . . 33
2015 Wis. Legis. Serv. 374 § 2 (West) (codified at WIS. STAT. ANN. § 66.0438 (West 2017)) . . . . . 35
2016 Fla. Sess. Law Serv. ch. 2016-61 (West) (codified at FLA. STAT. § 500.90 (2017)) . . . . . . 23
2016 Mich. Legis. Serv. P.A. 389 (S.B. 853) (West) (codified at MICH. COMP. LAWS ANN. § 445.591 (West 2017)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2016 N.C. Sess. Laws 3, §2.1 (codified at N.C. GEN. STAT. § 95-25.1 (2017)) . . . . . . . . . . . . . . . . . . . . 30
2017 N.C. Legis. Serv. 4 § 1 (West) . . . . . . . . . . . . 31
2017 Tex. Sess. Law Serv. 4 (West) (codified at TEX. GOV’T CODE ANN. §§ 752.053 & 752.0565 (West 2017)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vi
CHARLOTTE, N.C., MUN. CODE. §§ 12-56 to 12-58 (2017) . . . . . . . . . . . . . . . . . . . 30
WIS. CONST. art. XI, § 3 . . . . . . . . . . . . . . . . . . . . . . . 7
WIS. STAT. ANN. § 104.001 (West 2017) . . . . . . . . . 35
WIS. STAT. ANN. § 103.10(1m) (West 2017) . . . . . . 35
OTHER AUTHORITIES
1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (H. Reeve trans. 1961) . . . . . . . . . . . . . . . . . . . . 11
Sam Adler-Bell, Why Are Rhode Island Democrats Blocking Minimum-Wage Increases?, THE NATION, June 11, 2014, https://www.thenation. com/article/why-are-rhode-island-democratsblocking-minimum-wage-increases/ . . . . . . . . . 36
AP Analysis Shows How Gerrymandering Benefited GOP in 2016, MLIVE.COM, June 27, 2017, http://www.mlive.com/news/index.ssf/2017/06/a p_analysis_shows_how_gerryman.html . . . 25, 26
Associated Press, Redrawing America: an Efficiency Gap Analysis (2017), http://data.ap.org/projects/2017/efficiency-gap/ (click on “Statehouses_Elections” link for data spreadsheet) . . . . . . . . . . . . . . . . . . . . . . . . passim
Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 30
Abraham Bell & Gideon Parchomovsky, Of Property and Federalism, 115 YALE L.J. 72 (2005) . . . . . 12

vii
Russell Berman, Florida Struggles to Pay the Tab for Rejecting Obamacare, THE ATLANTIC (May 8, 2015), https://www.theatlantic.com/politics/ archive/2015/05/florida-struggles-to-pay-the-tabfor-rejecting-obamacare/392678/ . . . . . . . . . . . . 23
Frayda S. Bluestein, Do North Carolina Governments Need Home Rule?, 84 N.C. L. REV. 1983 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
Ryan Bort, A Comprehensive Timeline of Public Figures Boycotting North Carolina Over the HB2 ‘Bathroom Bill’, NEWSWEEK, Sept. 14, 2016, http://www.newsweek.com/north-carolina-hb2bathroom-bill-timeline-498052 . . . . . . . . . . . . . 30
Brief for Cal. Citizens Redistricting Comm’n et al. as Amici Curiae Supporting Appellees at 10-13, Gill v. Whitford, No. 16-1161 (S. Ct. Sept. 5, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. 1077 (2014) . . . . . . . . . . . . . . . . . 15
Erwin Chemerinsky, The Values of Federalism, 47 FLA. L. REV. 499 (1995) . . . . . . . . . . . . . . . . . . . 10
Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q. J. POL. SCI. 239 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 22
RHODES COOK, AMERICA VOTES 31: ELECTION RETURNS BY STATE 2013-2014 (2015) . . . . passim
David Leip’s Atlas of U.S. Presidential Elections, http://uselectionatlas.org/ . . . . . . . . . . . . . passim

viii
Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paul A. Diller, Reorienting Home Rule: Part 1 – The Urban Disadvantage in National and State Lawmaking, 77 LA. L. REV. 287 (2016) . 15, 16, 18
Paul A. Diller, Reorienting Home Rule: Part 2 – Remedying the Urban Disadvantage through Federalism and Localism, 77 LA. L. REV. 1045 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Paul A. Diller, Why Do Cities Innovate in Public Heath? The Implications of Scale and Structure, 91 WASH. U. L. REV. 1219 (2014) . . . . . . . . . 10, 11
Editorial, North Carolina’s Bigoted Bathroom Law, N.Y. TIMES, Mar. 25, 2016 . . . . . . . . . . . . . . . . . 30
Paul Egan, Is Emergency Manager Law to Blame for Flint Water Crisis?, DETROIT FREE PRESS (Oct. 24, 2015), http://www.freep.com/story/ news/politics/2015/10/24/emergency-managerlaw-blame-flint-water-crisis/74048854/ . . . . . . 27
Florida House of Representatives elections, 2014, Ballotpedia, https://ballotpedia.org/Florida_ House_of_Representatives_elections,_2014 . . . 21
Florida State Legislature, Ballotpedia, https://ballotpedia.org/Florida_State_Legislature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Florida State Senate elections, 2014, Ballotpedia, https://ballotpedia.org/Florida_State_ Senate_elections,_2014 . . . . . . . . . . . . . . . . . . . 21

ix
Lauren Gibbons, How Michigan’s Presidential Election Map Has Changed Since the 1980s, MLive.com, Oct. 27, 2016, http://www.mlive.com/ news/index.ssf/2016/10/five_takeaways_from_ three_deca.html . . . . . . . . . . . . . . . . . . . . . . 24, 25
Chelsea Harvey, Yes, This Is Real: Michigan Just Banned Banning Plastic Bags (Dec. 30, 2016), https://www.washingtonpost.com/news/energyenvironment/wp/2016/12/30/yes-this-is-realmichigan-just-banned-banning-plasticbags/?utm_term=. 63e5a19f886f . . . . . . . . . 27, 28
Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line? Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541 (2004) . 16
Chris Kardish, How North Carolina Turned So Red So Fast, GOVERNING (July 2014), http://www.governing.com/topics/politics/govnorth-carolina-southern-progressivism.html . . 28
KYLE KONDIK, THE BELLWETHER – WHY OHIO PICKS THE PRESIDENT (Ohio Univ. Press 2016) . . . . . 31
Emily Lawler, Gov. Rick Snyder Signs ‘Death Star’ Bill Prohibiting Local Wage, Benefits Ordinances, MLive.com, June 30, 2015, http://www.mlive.com/lansingnews/index.ssf/2015/06/gov_rick_snyder_ signs_death_st.html . . . . . . . . . . . . . . . . . . . . . . 27

x
Memorandum from Evan N. Pratt, Water Resources Comm’r, Washtenaw Cnty., on Carryout Bag Ordinance to Andy LeBarre, Chair, Ways & Means Comm., Washtenaw Cnty. (May 4, 2016), http://www.ewashtenaw.org/government/boc/a genda/wm/year_2016/2016-0504wm/ALLA1a1BOCMemo Resolution_BagOrdinanceAdoption.pdf . . . . . . 28
Michigan, All About Redistricting, http://redistricting.lls.edu/states-MI.php . . . . . 26
Michigan House of Representatives elections, 2012, Ballotpedia, https://ballotpedia.org/ Michigan_House_of_Representatives_elections, _2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Michigan House of Representatives elections, 2014, Ballotpedia, https://ballotpedia.org/ Michigan_House_of_Representatives_elections, _2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Michigan State Legislature, Ballotpedia, https://ballotpedia.org/Michigan_State_Legisla ture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
NLC, City Rights in an Era of Preemption: A Stateby-State Analysis (2017), http://nlc.org/sites/ default/files/2017-03/NLCSML%20Preemption%20Report%202017pages.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
North Carolina House of Representatives, Roll Call Vote on HB 937 (July 27, 2011), http://www.ncga.state.nc.us/gascripts/ voteHistory/RollCallVoteTranscript.pl?sSessio n=2011&sChamber=H&RCS=1287 . . . . . . . . . . 29

xi
Ohio House of Representatives, Ballotpedia, https://ballotpedia.org/Ohio_House_of_Represe ntatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Ohio State Senate, Ballotpedia, https://ballotpedia.org/Ohio_State_ Senate . . . 32
Keith T. Poole & Howard Rosenthal, The Polarization of American Politics, 46 J. POL. 1061 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Colin Reischman, Nixon Vetoes Bill Limiting Minimum Wage for Cities, MO. TIMES (July 10, 2015), http://themissouritimes.com/19526/ nixon-vetoes-bill-limiting-minimum-wage-forcities/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Pamela H. Rice & Milton Greenberg, Municipal Protection of Human Rights, 1952 WIS. L. REV. 679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
States in the Senate, Florida, http://www.senate.gov/states/FL/intro.htm . . . 20
States in the Senate, Michigan, http://www.senate.gov/states/MI/intro.htm . . . 25
States in the Senate, Ohio, http://www.senate.gov/states/OH/intro.htm . . . 31
David Stebenne, Re-Mapping American Politics, in 5 Origins: Current Events in Historical Perspective (February 2012), available at http://origins.osu.edu/article/re-mappingamerican-politics-redistricting-revolution-fiftyyears-later . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

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STATEMENT OF INTEREST OF AMICI CURIAE
The International Municipal Lawyers Association (“IMLA”) has been an advocate and resource for local government attorneys since 1935.1 Owned solely by its more than 2,500 members, IMLA serves as an international clearinghouse for legal information and cooperation on municipal legal matters. IMLA’s mission is to advance the responsible development of municipal law through education and advocacy by providing the collective viewpoint of local governments around the country on legal issues before the Supreme Court of the United States, the United States Courts of Appeals, and state supreme and appellate courts.
The National League of Cities (“NLC”) is dedicated to helping city leaders build better communities. NLC is a resource and advocate for 19,000 cities, towns, and villages, representing more than 218 million Americans.
The U.S. Conference of Mayors (“USCM”), founded in 1932, is the official nonpartisan organization of all United States cities with a population of more than 30,000 people, which includes over 1,400 cities at present. Each city is represented in USCM by its chief elected official, the mayor.
1 Pursuant to Supreme Court Rule 37.6, counsel for amici represent that they authored this brief in its entirety and that none of the parties or their counsel, nor any other person or entity other than amici or its counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Petitioner and Respondent have consented to the filing of this brief through blanket consent.

2
The International City/County Management Association (“ICMA”) is a non-profit professional and educational organization whose 11,000 members serve as appointed chief executives and assistants for cities, counties, towns, and regional entities. ICMA’s mission is to create excellence in local governance by advocating and developing the professional management of local governments throughout the world
Local Government Law Professors include the following seven professors who teach and write in the subject of local government law:
- Nestor M. Davidson is the Albert A. Walsh Professor of Real Estate, Land Use and Property Law at the Fordham University School of Law, where his scholarship and teaching focus on local government law and property. He founded and serves as the academic director of the Urban Law Center.
- Paul A. Diller is a Professor of Law at Willamette University College of Law and the director of its certificate program in law and government. He teaches and writes in the field of local government law, with an emphasis on state-local conflict.
- Clayton Gillette is the Max E. Greenberg Professor of Contract Law at NYU School of Law. He has taught and written in the area of local government law, including work in state pre-emption and the scope of local authority, for several decades.

3
- Kathleen Morris is a Professor of Law at Golden Gate University School of Law. A former deputy city attorney for San Francisco, her teaching and scholarship focus on local government law, constitutional law, and property.
- Kenneth Stahl is a Professor of Law and the director of the Environmental, Land Use, and Real Estate Law certificate program at Chapman University Fowler School of Law. His scholarly work focuses on the relationship between the local political process and judicial doctrine in land use and local government law.
- Rick Su is a Professor of Law at the University at Buffalo School of Law. He writes and teaches in the areas of local government law, federalism, and immigration.
- Christopher J Tyson is the Newman Trowbridge Distinguished Professor of Law at the LSU Law Center. He writes and teaches in the area of local government law, focusing on issues related to race, class and metropolitan organization.

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SUMMARY OF THE ARGUMENT
In addition to the many grave harms flowing from partisan gerrymandering that Plaintiffs and other amici ably highlight to this Court, this brief argues that intentional partisan gerrymandering threatens local democracy, a concept at the heart of our federal system. Local governments — our cities, suburbs, towns, and counties — have served as vital institutions, engaging citizens, crafting policies particularly sensitive to local needs, and fostering innovation and experimentation since the Founding. As this Court has made clear for over a century, state legislatures are responsible for structuring local governments and delegating authority to them. States thus play a vital role in nurturing the local governance that is constitutive of our federal order. To exercise this authority ably, however, state legislatures must themselves be democratically legitimate — that is, reasonably representative of the state’s electorate as a whole. Intentional partisan gerrymandering makes state legislatures un-representative of the statewide electorate, thus undercutting state legislatures’ moral authority to oversee their local governments in a democratically legitimate fashion.
As this brief demonstrates, in a growing number of states, partisan gerrymandering plays a role in undermining the freedom that local governments should have to pursue policies that their residents prefer. Where political gerrymandering shapes state legislatures that skew away from median voters, state oversight can become simply an extension of increasingly polarized partisan politics. Not surprisingly, then, conflicts over state preemption of

5
local policy are becoming more common, more targeted, and more punitive across the country. A decision in this case upholding the trial court’s invalidation of extreme partisan gerrymandering in Wisconsin will help restore public faith in state legislatures as responsible superintendents of the local governments within their boundaries.
ARGUMENT
Introduction
This case concerns whether and to what extent the United States Constitution, either through the Fourteenth Amendment’s Equal Protection Clause or the First Amendment, constrains the ability of a partisan majority in a state legislature to use the redistricting process to attempt to lock itself into power in that state for a decade or more. As this Court has noted, “[s]tate legislatures are, historically, the fountainhead of representative government in this country.” Reynolds v. Sims, 377 U.S. 533, 564 (1964). As such, it is essential that “a majority of the people of a State [be able to] elect a majority of that State’s legislators.” Id. at 565. At least at the state level, therefore, majoritarian government is woven into our constitutional order through the doctrine of one-person, one-vote articulated in Sims. Much of this Court’s post-Lochner v. New York, 198 U.S. 45 (1905), jurisprudence depends upon the political process to correct misjudgments made by the legislature, with the theory being that unpopular laws can be overturned by the “people” acting through a legislature that represents their views in some fair or accurate way. E.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487 (1955) (“[I]t is for the legislature, not the

6
courts, to balance the advantages and disadvantages of [regulation.]”).
As Appellees and other amici argue, a democratically legitimate, majoritarian state legislature is crucial for many reasons, including that the legislature is the primary instrument for producing the state’s public policy. This brief highlights an additional, particularly important reason why state legislatures’ composition must be democratically legitimate: they profoundly affect the ability of local governments throughout the state to make their own policy choices. This Court has made clear that for federal constitutional purposes, cities are “convenient agencies for exercising such of the governmental powers” that a state may entrust to them. Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907). Hence, states may “modify or withdraw all such powers” granted to cities and may even go so far as to “destroy the [municipal] corporation.” Id. at 178-79; see also Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978) (observing that Hunter “emphasiz[es] the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them.”). Given the nearplenary power that state legislatures may exercise over their political subdivisions, it is critical that they possess the utmost democratic, majoritarian legitimacy when wielding it.
Most states, including Wisconsin, have in their state constitutions or enacted by statute a system of “home rule” whereby cities and/or counties are granted a broad range of default powers to regulate conduct, raise revenue, manage their property and employees, and

7
structure their own governments. E.g., WIS. CONST. art. XI, § 3 (“Cities and villages organized pursuant to state law may determine their local affairs and government . . . .”); see also Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337, 1374 app. (2009) (listing all state constitutional home rule provisions as of 2009). While these provisions “leave much policy and decisionmaking” to local governments, Avery v. Midland Cnty., 390 U.S. 474, 481 (1968), they also often reserve in state legislatures broad latitude to preempt local authority. E.g., WIS. CONST. art. XI, § 3 (conditioning city power on consistency with the state constitution and “such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village”); see also Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113, 1126-27 (2007) (“[M]ost states now have at least some version of legislative home rule, in which the state legislature has significant authority to preempt local ordinances.”).
In some states, there are procedural limits on the manner in which a state legislature may preempt, such as a requirement to preempt uniformly, but so long as that requirement is met the state may preempt any or almost any local measure. E.g., Black v. City of Milwaukee, 882 N.W.2d 333, 343 (Wis. 2016) (holding that the state legislature may preempt a city charter ordinance “either (1) when the enactment addresses a matter of statewide concern, or (2) when the enactment with uniformity affects every city and village”). Hence, local authority is in many states robust as a default

8
matter, but often at the mercy of preemption by state legislatures.2
If the state legislature that preempts local authority truly represents the majority of the state’s voters in the spirit of Sims, then preemption of local law is relatively unproblematic. A majority of the state may appropriately decide that a policy enacted by a minority — in a particular city or county — is inconsistent with the state’s policy preferences.3 Preemption thus is one means for the state to preserve its Hunter-recognized authority as sovereign over its
2 A minority of states protect constitutionally some residuum of local power, often limited to structural matters like the design of the local government or matters dealing with local employees. See Baker & Rodriguez, supra, at 1339 n.12 (counting 23 “imperio” home rule states as of 2009); Paul A. Diller, Reorienting Home Rule: Part 2 – Remedying the Urban Disadvantage through Federalism and Localism, 77 LA. L. REV. 1045, 1066 (2017) (counting “approximately 15” states in which some subjects of local enactment are constitutionally protected from state override). Even in many of these states, however, the protection of local authority in specific areas is not absolute but rather may be breached when the state legislates in that area to address a matter of “statewide concern.” E.g., Jacobberger v. Terry, 320 N.W.2d 903, 905-06 (Neb. 1982) (upholding state law requiring cities to elect their council members on a district rather than at-large basis due to “statewide concern” for “socioeconomic” diversity on councils).
3 The state’s exercise of power over its localities, of course, just like the action of local governments themselves, is subject to appropriate constitutional constraints. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (holding that a statewide referendum amending the Colorado constitution to override three city initiatives recognizing sexual orientation as a protected class violated the Equal Protection Clause of the Fourteenth Amendment).

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local entities. If the preempting state legislature, however, does not represent the state’s voters in the spirit of Sims, however, but rather due to gerrymandering represents an entrenched political minority, then preemption may be extremely troubling from a democratic standpoint.
I. The Importance of Local Government to Our Constitutional Order
While a state’s ultimate control over its local entities is well-established, this Court has nonetheless long recognized the critical importance in our constitutional order of political power being exercised at the local level — that is, the level closest to those governed. E.g., Avery, 390 U.S. at 481. As this Court recently stated in the federalism context, preserving a space for more local governance “allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive’” by fostering competition for a mobile citizenry. Ariz. State Legis. v. Ariz. Indep. Redist. Comm’n, 135 S. Ct. 2652, 2673 (2015) (quoting Bond v. United States, 564 U.S. 211, 222 (2011) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991))).
Each of these enduring and vital arguments aptly applies to our nation’s great cities, small towns, rural counties, and the rest of the panoply of local governments in our federal system. To begin, local governments have a distinct ability to reflect the particular needs and interests of diverse communities across the country. As Justice Brandeis so famously argued, decentralization can foster innovation in

10
policymaking. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).
If the fifty states’ ability to serve as “laboratories of democracy” is well-recognized, by sheer quantity the thousands of cities and counties throughout the nation are even better positioned to innovate with respect to policy in all sorts of substantive areas. Whether tackling public health challenges, advancing economic development, developing novel strategies for environmental protection, grappling with the challenges of public safety, or addressing so many other policy challenges, our cities, towns, and counties have been true laboratories of democracy, with innovations at the local level often adopted by states and the national government when they succeed (and cabined when they fail). See generally Paul A. Diller, Why Do Cities Innovate in Public Heath? The Implications of Scale and Structure, 91 WASH. U. L. REV. 1219 (2014) (discussing dynamics of local innovation and policy diffusion) [hereinafter, Diller, Why Innovate?]. Ensuring that all three levels of governance are empowered in our federal system is vitally important. See Erwin Chemerinsky, The Values of Federalism, 47 FLA. L. REV. 499, 538 (1995) (“A key advantage of having multiple levels of government is the availability of alternative actors to solve important problems. If the federal government fails to act, state and local government action is still possible. If states fail to deal with an issue, federal or local action is possible.”).

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In addition to their ability to serve as crucial laboratories of government innovation, municipalities also offer uniquely democratic benefits of participation. From the original New England town meetings of the founding generation — a tradition that still endures — to communities across the country today, opportunities for participation and interaction with local officials abound at the local level in ways that are simply not possible for ordinary citizens at the state and federal levels. See 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 181 (H. Reeve trans. 1961) (“It is incontestably true that the love and the habits of republican government in the United States were engendered in the townships and in the provincial assemblies.”). In part, this is because there are generally far fewer constituents for each elected official even in our largest global cities, compared to that of state and national politics. Diller, Why Innovate?, supra, at 1257-58. These representation ratios allow local leaders to respond more directly to the people who elect them.
Local governments enhance democracy in another related sense, one that de Tocqueville also highlighted when he noted that “[t]own-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it.” DE TOCQUEVILLE, supra, at 76. Service on one of our nation’s countless city councils, school boards, county commissions, and myriad other local bodies provides an invaluable training ground for public leaders. Eventual leaders in our state and national governments often learn their earliest lessons in the crucible of local government. When states aggressively preempt local power, it may sap the will of

12
residents to run for local office. Why spend hours per week serving in an unpaid city council position, for instance, when the city’s authority to regulate in key areas has been eviscerated by the state?
As laboratories of policy and incubators of democratic values, local governments have played a vital role in advancing civil rights. Some of the earliest antidiscrimination provisions emerged at the local level, years before the federal government passed the Civil Rights or Fair Housing Acts. See Pamela H. Rice & Milton Greenberg, Municipal Protection of Human Rights, 1952 WIS. L. REV. 679 (reviewing local antidiscrimination ordinances that applied to employment, housing, and public accommodations). Cities at the vanguard of civil rights promotion sometimes face resistance from their states. In previous decades, this resistance emanated from the initiative process. E.g., Romer, 517 U.S. at 623; see also Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982). More recently, however, as gerrymandering has appeared to warp their makeup, state legislatures have targeted local antidiscrimination laws for preemption, such as in North Carolina.4
Finally, it has long been recognized that a certain amount of healthy competition among cities promotes efficiency and accountability in governance. Cf. Abraham Bell & Gideon Parchomovsky, Of Property and Federalism, 115 YALE L.J. 72, 96-97 (2005) (reviewing empirical evidence that “migration patterns between city and suburbs are significantly affected by
4 See infra Section III.C.

13
tax levels and investment in education”). Decentralization has some logic at the scale of the fifty states, but our nation’s cities, towns, and counties have much greater ability to craft policies to respond to the preferences of mobile residents.
In short, the logic of the many benefits that this Court has rightly associated with decentralization and devolution strongly support the empowerment of local governments in our federal system. At the very least, these values require that if and when a state takes a policy choice off the table for local democracy, its legislature possess the democratic legitimacy to justify such a trump.
II. Intentional Political Gerrymandering Can Foment Excessive Preemption and Other Harms to Local Decisionmaking
Intentional political gerrymandering may skew the representation of the state legislature far away from the majority or the median voter. In a politically moderate state, therefore, intentional political gerrymandering may result in a legislature that is far from moderate, skewing heavily toward a particular political party, ideological belief system, or set of issues.
Political groups and citizens whose agenda is disfavored at the state level in part due to intentional gerrymandering might look to another level of government — local government at the city, county, or special district level — to pursue policy goals that are not politically feasible at the state level. Although no state is required by the federal Constitution to have cities, towns, or counties, states have “universally”

14
chosen to create and empower them because of the benefits of local democracy. Avery, 390 U.S. at 481.
In a well-functioning state democracy, local governments would enjoy the freedom to pursue the policies their residents prefer. Of course, when the externalities of local policies are too great or when the state’s interest in the uniformity of a regulatory regime is paramount, the state legislature might choose to preempt the local policy. When the choice to preempt, however, does not reflect the will of voters statewide but, rather, the warped view of a politically gerrymandered state legislature, such preemption is much more problematic democratically.
For instance, a highly gerrymandered state legislature in a politically moderate state might adamantly oppose a minimum wage increase. Statewide voters may be cool to the idea of a statewide minimum wage increase, but not so adamantly against it that they would want to prohibit local communities from enacting higher minimum wages in their jurisdictions if they see fit. Nonetheless, in addition to refusing to enact a higher minimum wage, a gerrymandered state legislature in such a circumstance might prohibit any local government from enacting a higher minimum wage. Alternatively, a highly gerrymandered state legislature might insist on heightened wages and benefits for municipal employees. Statewide voters may be mildly supportive of the idea, but not so much so that they would prefer to force such a regime on every city and county statewide. Nonetheless, a highly gerrymandered legislature might do so.

15
The propensity for intentional gerrymandering to lead to state legislative preemption is exacerbated in recent years by two trends: 1) the increased ideological polarization of the two major political parties, see Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. 1077, 1086-87 (2014) (citing numerous sources for the proposition that today’s state and national political parties are more partisan and ideologically cohesive than they were decades earlier), and 2) an ideological and partisan divide between urban and exurban/rural areas. See Paul A. Diller, Reorienting Home Rule: Part 1 – The Urban Disadvantage in National and State Lawmaking, 77 LA. L. REV. 287, 292-97 (2016) (reviewing literature establishing a spatially divided electorate) [hereinafter, Diller, Urban Disadvantage]. With respect to the first trend, many years ago, for instance, Southern states may well have been gerrymandered in favor of the Democratic party, but that Democratic party was often far more ideologically diverse than its current version. Hence, an intentional gerrymander in favor of Democrats in the 1980’s, for instance, might have preserved the party’s power but did not necessarily advance a particular ideological agenda.
With respect to the second trend, large, densely populated urban areas (including big cities and many inner-ring suburbs) have developed a strong preference for Democratic candidates in most partisan elections while, on the other hand, rural, exurban, and some suburban voters have developed a strong preference for Republican candidates. See Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q. J. POL. SCI. 239, 241 (2013). Some Republican map-

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drawers, such as in Wisconsin, have seized on this demography to unfairly “pack” Democratic voters into small urban districts that Democratic candidates win overwhelmingly while “cracking” the Democratic voters on the urban and suburban fringe into larger, gerrymandered geographical districts that Republican candidates can win comfortably, but not as overwhelmingly. Samuel Issacharoff & Pamela S. Karlan, Where to Draw the Line? Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541, 551 n.45 (2004) (reviewing the concepts of “packing” and “cracking”). Under such schemes, Democrats may proportionally “waste” more votes in big cities, resulting in a ruling Republican party that does not represent those large cities in a meaningful way. See Diller, Urban Disadvantage, supra, at 338-40. As a result, it has become common for Republicandominated legislatures in states with partisan and ideological divides along geographic lines to crack down on the political preferences of large cities. Section III, below, illustrates vividly how this dynamic has played out in five states: Florida, Michigan, North Carolina, Ohio, and Wisconsin.
Intentional partisan gerrymandering, of course, is not limited to Republican-dominated legislatures. States with intentional pro-Democratic gerrymandering might be expected to under-represent the preferences of voters from small towns and rural areas when those voters generally prefer Republican candidates and policies. Such voters may find their ability to express their preferences muted when the state legislature preempts certain areas from local control.

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Preemption is not the only democratic harm vis-àvis local governments that might be expected to result from intentional political gerrymandering. Other potential harms to local democracy include: reducing funding to cities and counties generally; punishing cities and counties — and even local officials — for ordinances that go beyond state law, e.g., 2017 Tex. Sess. Law Serv. 4 (West) (codified at TEX. GOV’T CODE ANN. §§ 752.053 & 752.0565 (West 2017)) (imposing civil penalties on local entities that “endorse a policy . . . [that] materially limits the enforcement of immigration laws,” and allowing the attorney general to seek the removal of officials who similarly endorse such policies);5 refusing to grant home-rule authority in those states that lack a constitutional or statutory home-rule provision; and refusing to reconsider preemption from pre-gerrymandered days despite different circumstances.
As a counter-argument to the well-supported charge that intentional partisan gerrymandering distorts the legislative output, the dissenting judge in the court below pointed out that the Wisconsin governor, unlike state legislators, is elected statewide.6 Whitford v. Gill,
5 A federal district court recently enjoined enforcement of this aggressive preemption statute that sought to curtail “sanctuary city” policies of local governments in Texas. City of El Cenizo v. Texas, No. SA-17-CV-404-OLG (W.D. Tex. Aug. 30, 2017). Although basing its decision in large part on the statute’s apparent unconstitutional vagueness, the court also took note of “[t]he fact that SB 4’s passage was motivated in part by a political feud between local and state elected leaders.” Id. at 59.
6 Among the fifty states, only Vermont and Mississippi have gubernatorial election systems that stray from a straight-up one-

18
218 F. Supp. 3d 837, 936 (W.D. Wis. 2016) (Griesbach, J., dissenting). Through his or her veto power over legislation, therefore, a governor might be expected to mitigate or neutralize the effects of political gerrymandering on the legislature’s output. Id. With respect to preemption, there is some evidence of governors stepping in to protect local authority from legislative attempts to target it, particularly in states where the governor is of a different party than the legislative majority. E.g., Colin Reischman, Nixon Vetoes Bill Limiting Minimum Wage for Cities, MO. TIMES (July 10, 2015), http://themissouritimes.com/ 19526/nixon-vetoes-bill-limiting-minimum-wage-forcities/. Particularly when the governor is of the same party as the majority in both houses of the legislature, however, he or she is unlikely to veto every piece of preemptive legislation — even when such legislation is unpopular — for a variety of reasons. Governors must work collaboratively with legislatures in order to accomplish their agendas, thus requiring them to save their vetoes for when they are especially important to them. Moreover, rather than necessarily represent the proverbial median voter, a successful gubernatorial candidate instead represents a “support coalition” that is successful in a particular election. Cf. Keith T. Poole & Howard Rosenthal, The Polarization of American Politics, 46 J. POL. 1061, 1065–66 (1984) (noting that U.S. senators from the same state but from different parties have highly dissimilar voting records, suggesting that each party represents an extreme support coalition in the state). Finally, even if the
person, one-vote system. See Diller, Urban Disadvantage, supra, at 336 n.182.

19
governor can serve as a check on the gerrymandered state legislature, this is only a negative power and can never allow for the majority of voters in a state to “pass an agenda consistent with their policy objectives.” Whitford, 218 F. Supp. 3d at 901 n.266.
III. The Record of Preemption in States with Significant Recent Indicia of Intentional Partisan Gerrymandering
The states highlighted here are those with high efficiency gaps (at least more than 10% in absolute value) in their state houses since 2012 or 2014, as calculated by the Plaintiffs’ expert, Simon Jackman. See Joint Appendix, Vol. II (“SA”) 183-84 (explaining Jackman’s “efficiency gap,” or “EG,” calculations). As articulated by the court below, the EG is an objective measurement of the extent to which each of the two major political parties “waste” votes in legislative elections. Whitford, 218 F. Supp. 3d at 903-04. The EG thus “measures the magnitude of a [districting] plan’s deviation from the [normal] relationship . . . between [statewide] votes and [total] seats.” Id. at 907. Plaintiffs proposed 7% as a legally significant threshold for an EG, in part because based on their expert’s testimony, an EG of 7% or more indicates that the districting plan will have tremendous staying power during the decennial period. Id. at 860-61. As made clear by the trial court, a high EG alone does not prove intentional partisan gerrymandering; nonetheless, it may serve as “corroborative evidence” of an aggressive and effective partisan gerrymander. Id. at 910. For these reasons, this section focuses on states that had at least a 10% EG in the lower house of the state legislature in one of the first two years of their post-

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2010 districting plans, as well as other indicia of partisan gerrymandering, such as a legislativeapproved districting map enacted on a largely partisan basis or court decisions finding some partisan gerrymandering in the state districting process. In addition to Wisconsin, these states are (in alphabetical order): Florida, Michigan, North Carolina, and Ohio. Each demonstrates a recent record of aggressively attacking local authority.
A. Florida
Florida is a politically competitive state. Presidential elections there are notoriously won by razor-thin margins. See, e.g., Bush v. Gore, 531 U.S. 98 (2000). Since 2000, a Democratic presidential candidate has won the state twice, while a Republican candidate has won three times. See David Leip’s Atlas of U.S. Presidential Elections, http://uselectionatlas.org/ (click to presidential election results in 2000, 2004, 2008, 2012, and 2016, and hover over Florida for each) (last visited August 31, 2017) [hereinafter, “Leip”]. The average margin of victory in the five races is 1.47%. Id. In other statewide races, Florida shows evidence of being a state evenly split between Democrats and Republicans. The last two gubernatorial elections have been extremely close, with the Republican incumbent Rick Scott winning by 1.07% in 2014 and 1.15% in 2010. RHODES COOK, AMERICA VOTES 31: ELECTION RETURNS BY STATE 2013-2014 81 (2015). The state’s senate seats are split between a Democrat and Republican. See States in the Senate, Florida, http://www.senate.gov/states/FL/intro.htm (last visited Sept. 5, 2017).

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Despite this apparent parity in statewide elections, the Republican party has had a majority in the Florida state legislature since the late 1990’s. See Florida State Legislature, Ballotpedia, https://ballotpedia.org/ Florida_State_Legislature (last visited Sept. 4, 2017). In recent years, the majority has been utterly dominant, with Republicans enjoying, for instance, an 82-37 seat advantage in the state house and a 26-14 margin in the state senate after the November 2014 elections. Florida House of Representatives elections, 2014, Ballotpedia, https://ballotpedia.org/Florida_ House_of_Representatives_elections,_2014 (last visited Sept. 4, 2017); Florida State Senate elections, 2014, Ballotpedia, https://ballotpedia.org/Florida_State_ Senate_elections,_2014 (last visited Sept. 4, 2017). There is evidence that Republicans used their control of all three branches of government after both the 2000 and 2010 redistricting to ensure that the state legislature (as well as the state’s U.S. House delegation) would become and remain disproportionately Republican. Reviewing the post2000 state legislative and Congressional districting plans, a federal court observed that “[t]he Republicancontrolled legislature intended to maximize the number of Republican . . . legislative seats through the redistricting process, and used its majority power to” effectuate this intent. Martinez v. Bush, 234 F. Supp. 2d 1275, 1296 (S.D. Fla. 2002). The amicus brief of FairDistricts Now, Inc., filed in this case, details the litigation regarding Florida’s post-2010 gerrymandering, including court decisions ordering remedial steps to be taken before the 2016 elections. Brief for Cal. Citizens Redistricting Comm’n et al. as Amici Curiae Supporting Appellees at 10-13, Gill v. Whitford, No. 16-1161 (S. Ct. Sept. 5, 2017). In

22
addition to this litigation history, the Jackman Report shows Florida’s state house having some of the highest pro-Republican EG’s in the country in the 2012 and 2014 elections, with each greater than 10%. SA253.7
Hence, there is good reason to believe that despite Florida’s politically split electorate, intentional political gerrymandering played a big role in locking in a Republican majority in the state legislature, at least until 2016. This majority, which disproportionately represents exurban and rural areas in the state, cf. Rodden & Chen, supra, at 244 (noting that “Democrats in Florida [are] highly concentrated in downtown Miami” and several other large cities, while suburbs and rural areas “are generally Republican”), aggressively contravened the policy preferences of many — perhaps even a majority — of the state’s voters. For instance, despite President Barack Obama winning the state in 2012 in a campaign largely focused on the merits of his signature domestic achievement, the Affordable Care Act (“ACA”), see COOK, supra, at 80, the Florida legislature rejected attempts to expand Medicaid under the ACA. See
7 The efforts to remedy gerrymandering before the 2016 elections in Florida applied only to U.S. House and state senate districts. See Brief for Cal. Citizens Redistricting Comm’n et al., supra, at 12-13. Indeed, an exhaustive study of efficiency gaps in the 2016 elections by the Associated Press ranks the Florida state house’s EG as the fourth highest in absolute value, and the third highest among those that favor Republicans, resulting in an excess of almost 11 house seats for Republicans. Associated Press, Redrawing America: an Efficiency Gap Analysis (2017), http://data.ap.org/projects/2017/efficiency-gap/ (click on “Statehouses_Elections” link for data spreadsheet) (last visited Sept. 5, 2017) [hereinafter, “AP Report”].

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Russell Berman, Florida Struggles to Pay the Tab for Rejecting Obamacare, THE ATLANTIC (May 8, 2015), https://www.theatlantic.com/politics/archive/2015/05/ florida-struggles-to-pay-the-tab-for-rejectingobamacare/392678/ (discussing the Florida house’s resistance to Medicaid expansion despite state senate and sometime gubernatorial support for the proposal).
With respect to local government in particular, the state legislature has in recent years targeted important subject matters for sweeping preemption. In 2013, the state legislature preempted any city or county in the state from regulating private employers’ workplace benefits and strengthened the state’s ban, initially enacted in 2003, on local minimum wage ordinances. 2013 Fla. Sess. Law Serv. ch. 2013-200 (West) (codified as amended at FLA. STAT. § 218.077 (2017)). This preemption law has been held to prevent Miami Beach from raising its local minimum wage despite the preferences of the city’s residents and elected officials. Fla. Retail Fed’n, Inc., et. al., v. City of Miami Beach, No. 16-031886-CA-10 (Fla. Cir. Ct. Mar. 27, 2017), appeal docketed, No. 3D17-705 (Fla. Dist. Ct. App. Mar. 30, 2017). Similarly, in 2016 the legislature preempted localities from regulating polystyrene containers and plastic bags. 2016 Fla. Sess. Law Serv. ch. 2016-61 (West) (codified at FLA. STAT. § 500.90 (2017)). Some cities have been able to enforce their bans thus far because either the legislature grandfathered them in or because the Florida courts deemed them protected by the state constitution. Id. (exempting “local ordinances or provisions thereof enacted before January 1, 2016”); Fla. Retail Fed’n, Inc. v. City of Coral Gables, No. 2016018370-CA-01 (Fla. Cir. Ct. Mar. 9, 2017) (invalidating state preemption as to cities within Miami-Dade

24
County, which enjoy constitutional home-rule immunity to special legislation), appeal docketed, No. 3D17-562 (Fla. Dist. Ct. App. Mar. 15, 2017). For most cities in the state, however, the ban will stymie policy experimentation with respect to protecting the environment. Finally, a 2011 law imposes penalties on any locality or local official that attempts to regulate firearms beyond state law. 2011 Fla. Sess. Law Serv. ch. 2011-109 (codified at FLA. STAT. § 790.33 (2017)). Litigants have attempted to use this law to punish local officials for not affirmatively removing firearms ordinances enacted decades ago from the current city code, even if they went unenforced. Fla. Carry, Inc. v. City of Tallahassee, 212 So. 3d 452 (Fla. Dist. Ct. App. 2017).
In sum, the residents of a “purple” state like Florida that might prefer to turn to their local government to enact certain policy preferences have found themselves blocked from doing so due to a political majority in the state legislature that may well have been attributable to intentional political gerrymandering.
B. Michigan
As demonstrated by the November 2016 election, Michigan is a perennial “swing state.” The Republican candidate for president, Donald Trump, won the state by a mere 0.22 %. Leip, supra (click to 2016 presidential election results and hover over Michigan). The state was reliably Democratic in the six prior presidential elections, although often targeted by Republicans for contention. Lauren Gibbons, How Michigan’s Presidential Election Map Has Changed Since the 1980s, MLive.com, Oct. 27, 2016, http://www.mlive.com/news/index.ssf/2016/10/five_ta

25
keaways_from_three_deca.html. The state has had two Democratic senators since 2006, while Democrats and Republicans have traded occupancy of the governor’s office in the last two decades. See States in the Senate, Michigan, http://www.senate.gov/states/MI/intro.htm (last visited Sept. 5, 2017); COOK, supra, at 188.
Despite this seeming partisan parity at the statewide level, Republicans utterly dominate the Michigan state legislature, holding a 63-45 advantage in the house and a 27-11 majority in the senate. Michigan State Legislature, Ballotpedia, https://ballotpedia.org/Michigan_State_Legislature (last visited Sept. 4, 2017). In 2012, for instance, Democratic state house candidates won by 53 to 46% statewide, yet remarkably Republicans held on to a 5951 majority. Michigan House of Representatives elections, 2012, Ballotpedia, https://ballotpedia.org/ Michigan_House_of_Representatives_elections,_2012 (last visited Sept. 4, 2017). Similarly, in 2014, Democratic state house candidates won statewide by a margin of 51 to 49%, yet lost four seats for a 63-47 Republican advantage. Michigan House of Representatives elections, 2014, Ballotpedia, https://ballotpedia.org/Michigan_House_of_Represent atives_elections,_2014 (last visited Sept. 4, 2017).
Indeed, the Jackman Report estimates the EG for the Michigan state house to be greater than 10% in each of 2012 and 2014, among the highest in the nation. SA253. In 2016, Democrats and Republicans essentially tied statewide in the house, yet Republicans maintained their 16-seat edge. AP Analysis Shows How Gerrymandering Benefited GOP in 2016, MLIVE.COM, June 27, 2017, http://www.mlive.com/

26
news/index.ssf/2017/06/ap_analysis_shows_how_gerr yman.html (“Last fall, voters statewide split their ballots essentially 50-50 . . . [y]et Republicans won 57 percent of the [state] House seats, claiming 63 seats to the Democrats’ 47.”). According to the Associated Press (“AP”), the EG in the Michigan state house in 2016 was the second highest in the nation, resulting in more than 11 excess seats for House Republicans. AP Report, supra. As demonstrated by the Jackman Report, high pro-Republican EG’s date back to the 2000’s. SA214. This is not surprising, given that after both the 2000 and 2010 censuses, the Republicancontrolled Michigan legislature adopted partisan districting plans with the approval of Republican governors. Michigan, All About Redistricting, http://redistricting.lls.edu/states-MI.php (last visited Sep 4, 2017).
The skewing of the Michigan legislature away from statewide voter preferences has resulted in legislation that deprives local governments of significant authority. Most notably, in 2012, with Detroit’s fiscal crisis in the background, the state legislature enacted an emergency manager law that stripped elected city councils and mayors of their powers despite a statewide initiative passed a month earlier that sought to rescind that law. 2012 Mich. Legis. Serv. P.A. 436 (S.B. 865) (West) (codified at MICH. COMP. LAWS ANN. § 141.1549 (West 2013)); 2011 Mich. Legis. Serv. P.A. 4 (H.B. 4214) (West) (codified at MICH. COMP. LAWS ANN. § 141.1501 West 2012)) (rejected via referendum as Proposal 1 in 2012); see also In re City of Detroit, 504 B.R. 97, 121-22 (Bankr. E.D. Mich. 2013) (reviewing history of the emergency manager law used to steer Detroit into bankruptcy). In other words, despite the

27
Michigan voters’ clear statewide preference for protecting local democracy, the legislature reached a very different conclusion. In addition to engendering bitterness among some Detroit residents at their city being steered into bankruptcy by a state-appointed functionary, the re-instituted emergency manager law may also have played a role in causing the Flint leadpoisoning water crisis. Paul Egan, Is Emergency Manager Law to Blame for Flint Water Crisis?, DETROIT FREE PRESS (Oct. 24, 2015), http://www.freep.com/story/news/politics/2015/10/24/e mergency-manager-law-blame-flint-watercrisis/74048854/.
In the last two years the Michigan legislature has also enacted aggressive legislation depriving local governments of authority to regulate. In 2015, the legislature enacted the so-called “Death Star bill” preventing cities and counties from regulating any aspect of the employment relationship, including minimum wage, leave, and benefits. 2015 Mich. Legis. Serv. P.A. 105 (West) (codified at MICH. COMP. LAWS ANN. §§ 123.1381-123.1396 (West 2017)); see also Emily Lawler, Gov. Rick Snyder Signs ‘Death Star’ Bill Prohibiting Local Wage, Benefits Ordinances, MLive.com, June 30, 2015, http://www.mlive.com/ lansing-news/index.ssf/2015/06/gov_rick_snyder_ signs_death_st.html. In 2016, the state legislature enacted a ban on local plastic bag regulation, see 2016 Mich. Legis. Serv. P.A. 389 (S.B. 853) (West) (codified at MICH. COMP. LAWS ANN. § 445.591 (West 2017)), after the county commissioners of Washtenaw County, which includes the city of Ann Arbor, voted in favor of an ordinance that would impose a 10-cent fee on paper and plastic bags. See Chelsea Harvey, Yes, This Is

28
Real: Michigan Just Banned Banning Plastic Bags (Dec. 30, 2016), https://www.washingtonpost.com/ news/energy-environment/wp/2016/12/30/yes-this-isreal-michigan-just-banned-banning-plasticbags/?utm_term=. 63e5a19f886f; see also Memorandum from Evan N. Pratt, Water Resources Comm’r, Washtenaw Cnty., on Carryout Bag Ordinance to Andy LeBarre, Chair, Ways & Means Comm., Washtenaw Cnty. (May 4, 2016), http://www.ewashtenaw.org/ government/boc/agenda/wm/year_2016/2016-05-04wm/ ALLA1a1BOCMemoResolution_BagOrdinance Adoption.pdf (including copy of proposed ordinance). The new state law prevented the proposed local ordinance from ever going into effect. See id. at 2.
C. North Carolina
Perhaps in no state have the effects of gerrymandering been as devastating to local governments — and the economy of the entire state — than in North Carolina. North Carolina has traditionally been seen as a politically moderate state. While it often voted Republican in presidential elections, it has had a tradition of “moderate-toprogressive state government” and electing senators and governors from both major political parties. Chris Kardish, How North Carolina Turned So Red So Fast, GOVERNING (July 2014), http://www.governing.com/ topics/politics/gov-north-carolina-southernprogressivism.html. Moreover, in 2008, North Carolina became a true “swing state” in presidential elections by voting for the Democratic candidate, Barack Obama, for the first time since 1976. COOK, supra, at 267. In the two subsequent elections, 2012 and 2016, the state voted for the Republican presidential candidate by an

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average narrow margin of 2.85%. Leip, supra (click to 2012 and 2016 presidential election results and hover over North Carolina).
After a Republican sweep of both houses of the legislature and the governor’s office in 2010, however, the state legislative maps were drawn in an entirely partisan fashion. Indeed, the vote in favor of the 2011 redistricting plan in the state house was 66 to 53, with all but two Republicans voting yes and all Democrats present (one was absent) voting no. See North Carolina House of Representatives, Roll Call Vote on HB 937 (July 27, 2011), http://www.ncga.state.nc.us/gascripts/ voteHistory/RollCallVoteTranscript.pl?sSession=201 1&sChamber=H&RCS=1287. As a result of this apparent intentional gerrymander, the North Carolina legislature has taken on a profile that skews sharply away from the state’s traditional approach to governance. As Jackman demonstrates, the North Carolina state house’s EG in 2012 and 2014 were among the highest in the nation in absolute value, with each greater than 10%. SA253. The AP’s analysis of the 2016 state house elections found a slightly lower, but still significant, EG of 5.51%, resulting in an estimated additional 6.6 Republican seats. AP report, supra.
Because its gerrymander-enabled majority skews away from the preferences of the state’s urban voters, the North Carolina legislature has been aggressive since 2012 in preempting the priorities of urban centers within the state. North Carolina’s cities derive their powers from statute rather than from the state constitution; hence, they are particularly susceptible to being overridden by the state legislature. See Frayda

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S. Bluestein, Do North Carolina Governments Need Home Rule?, 84 N.C. L. REV. 1983, 1985 (2006) (“North Carolina local government powers are established through specific statutory delegations . . . .”); see also Baker & Rodriguez, supra, at 1338 & n.10 (describing North Carolina as having “no [constitutional] home rule at all”).
In one of the most prominent instances of preemption nationally in recent years, the legislature in 2016 preempted Charlotte’s antidiscrimination ordinance that sought to extend the antidiscrimination protections of local law to gay, lesbian, and transgender persons. CHARLOTTE, N.C., MUN. CODE. §§ 12-56 to 1258 (2017) (noting that it was preempted by state law and invalidated as of Mar. 23, 2016 by 2016 N.C. Sess. Laws 3). The state law, popularly known as House Bill 2, “HB2,” or “the bathroom bill,” because its supporters argued that it would keep men out of women’s bathrooms, Editorial, North Carolina’s Bigoted Bathroom Law, N.Y. TIMES, Mar. 25, 2016, at A24, spurred a national backlash leading numerous companies, sports organizations, and high-profile entertainers to boycott the state. See Ryan Bort, A Comprehensive Timeline of Public Figures Boycotting North Carolina Over the HB2 ‘Bathroom Bill’, NEWSWEEK, Sept. 14, 2016, http://www.newsweek.com/ north-carolina-hb2-bathroom-bill-timeline-498052. In addition to preempting local antidiscrimination laws, HB2 preempted the ability of local governments to enact higher minimum wage ordinances, regulate leave or benefits, or require that city contractors hire local employees. 2016 N.C. Sess. Laws 3, supra, §2.1 (codified at N.C. GEN. STAT. § 95-25.1 (2017)). The national outcry over HB2 ultimately forced the

31
legislature to pass a partial repeal, 2017 N.C. Legis. Serv. 4 § 1 (West). The repeal, however, prohibits any political subdivision from regulating private employment practices or public accommodations until 2020. Id.
D. Ohio
Ohio is a politically competitive state, commonly understood as the nation’s most reliable bellwether in presidential elections. See KYLE KONDIK, THE BELLWETHER – WHY OHIO PICKS THE PRESIDENT (Ohio Univ. Press 2016). While 2016 had a relative wide margin for the winning candidate—51.69% to 43.56%—the average margin of victory over the course of the four prior presidential races is 3.29%. Leip, supra (click to 2000, 2004, 2008, 2012, and 2016 presidential election results and hover over Ohio for each). Since 1992, moreover, Democratic candidates have won the state four times, while Republican candidates have won the state three times. Id. Other statewide races likewise show how moderate Ohio is politically, with Republican John Kasich winning the governorship by only 2% in 2010, COOK, supra, at 281,8 and the state’s two U.S. Senate seats split between a Democrat and Republican. States in the Senate, Ohio, at http://www.senate.gov/states/OH/intro.htm (last visited Sept. 5, 2017).
Despite all of this clear evidence of balanced partisan competitiveness in statewide elections, the Republican Party has dominated the Ohio General
8 Governor Kasich has been a popular governor and was re-elected in 2014 by a margin of 63.6% to 33%. COOK, supra, at 281.

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Assembly for decades. The State Senate has been controlled by Republicans in an unbroken streak since 1985, with increasing margins that are currently peaking at 24 Republicans to 9 Democrats. Ohio State Senate, Ballotpedia, https://ballotpedia.org/Ohio_State_ Senate (last visited Sept. 4, 2017). In the State House, since 1995 the Democratic Party has only had a majority in one session — 2009-10 — and the current partisan divide is an overwhelming majority of 66 Republicans to 33 Democrats. Ohio House of Representatives, Ballotpedia, https://ballotpedia.org/ Ohio_House_of_Representatives (last visited Sept. 4, 2017).
The Jackman Report shows Ohio’s state house among the top ten states in pro-Republican EG in both the 2012 and 2014 elections. SA253. Similarly, the AP’s study of the 2016 state house elections ranked Ohio’s EG among the top ten nationally in absolute value, and the eighth highest among those that favor Republicans, resulting in an excess of over 5 house seats for Republicans. AP Report, supra. The evidence strongly suggests that intentional political gerrymandering has played a significant role in supporting the continuing Republican majority in the Ohio General Assembly. This majority, which as in many similar states disproportionately represents exurban and rural areas in the state,9 has aggressively
9 See David Stebenne, Re-Mapping American Politics, in 5 Origins: Current Events in Historical Perspective (February 2012), available at http://origins.osu.edu/article/re-mapping-americanpolitics-redistricting-revolution-fifty-years-later (discussing the geography of gerrymandering in Ohio after the 2010 census); see also id. (“What the Republicans tried to do is to create the

33
contravened the policy preferences of the state’s voters living in — and more accurately represented by — the state’s larger cities.
With respect to local government in particular, the state legislature has in recent years targeted important subject matters for sweeping preemption. In 2002, the General Assembly preempted home rule authority for cities to respond to serious local problems involving predatory lending. 2002 Ohio Laws H 386 (codified as amended at OHIO REV. CODE ANN. §§ 1.63, 1349.25 to 1349.37 (West 2017)). In 2006, the General Assembly preempted local authority over residency for city employees, 2006 Ohio Laws S 82 (codified at OHIO REV. CODE ANN. §9.481 (West 2017)), sustained by Lima v. State, 909 N.E.2d 616 (Ohio 2009) (rejecting municipal home rule challenge to state preemption of local residency ordinances), and removed longstanding home rule authority to regulate gun safety. 2006 Ohio Laws H 347 (codified at OHIO REV. CODE ANN. §9.68 (West 2017)). And the General Assembly has likewise sought to preempt the ability of cities to enact local-hire laws, see 2015 Ohio Laws H 180 (codified at Ohio Rev. Code Ann. §9.75 (West 2017)); see also City of Cleveland v. State, No. CV-16-868008 (Ct. C.P. Cuyahoga Cnty., Ohio Jan. 31, 2017) (finding that the state’s preemption of local-hire laws unconstitutionally infringed on Cleveland’s home-rule authority), appeal docketed,
maximum number of safe Republican seats in the . . . Ohio General Assembly, and a minimum number of truly competitive seats [by] break[ing] up major metropolitan areas (where the Democrats are usually strongest) and combin[ing] pieces of them with exurban, small town and rural areas (where the Republicans are strongest).”).

34
No. CA-17-105500 (Ohio Ct. App. 2017). The General Assembly has also limited the ability of cities to use red-light and speed cameras. See 2013 Ohio Laws S 342 (codified at OHIO REV. CODE ANN. § 4511 et. seq. (West 2017)); see also City of Dayton v. State, 2017 WL 3215532 (Ohio July 26, 2017) (holding that the provisions of the state law that sought to regulate local government use and enforcement of red-light and speed cameras violated the Home Rule provision of the Ohio Constitution).
In sum, residents of a quintessentially “purple” state like Ohio who prefer their local governments to enact policies that match their small-d democratic preferences find themselves repeatedly blocked by an entrenched political alignment in the state legislature that may well have been attributable to intentional political gerrymandering.
E. Wisconsin
Wisconsin’s record of gerrymandering after 2010 was articulated in detail by the district court. Whitford, 218 F. Supp. 3d at 902-10. The 2016 AP report demonstrates that the Wisconsin House’s EG has remained high, at 9.76%, the third highest in the nation and resulting in 9 to 10 excess Republican seats in the Wisconsin House. AP Report, supra. Although Wisconsin has a long-established system of home rule designed to empower cities to pass ordinances that promote their citizens’ policy preferences, see Black v. City of Milwaukee, 882 N.W.2d 333, 337 (Wis. 2016) (noting that Wisconsin’s home rule dates from 1924), the state legislature since 2012 has attempted to erode local policymaking authority through aggressive

35
preemption. A list of subject matters preempted by the state legislature since 2012 include:
- nutrition and food policy, see 2013 Wis. Legis. Serv. 20 § 1269m (West) (codified at WIS. STAT. ANN. § 66.0418 (West 2017));
- issuance of photo identification cards by local governments, particularly to prohibit their use in voting, see 2015 Wis. Legis. Serv. 374 § 2 (West) (codified at WIS. STAT. ANN. § 66.0438 (West 2017)); and
- municipal employee residency requirements, see 2013 Wis. Legis. Serv. 20 § 1270 (West) (codified at WIS. STAT. ANN. § 66.0502 (West 2017)), sustained by Black, 882 N.W.2d at 337.
To be sure, other key preemptive laws in Wisconsin were passed before the apparent gerrymandering took effect, such as a state law in 2005 preempting local minimum wages, WIS. STAT. ANN. § 104.001 (West 2017), and a 2011 law preempting local paid sick leave ordinances. Id. § 103.10(1m). The inability to reverse these laws, however, may also be partly attributable to gerrymandering. Cf. Whitford, 218 F. Supp. 3d at 901 n.266 (gerrymandering deprives Democrats of “the opportunity to pass an agenda consistent with their policy objectives”).

36
F. Other States
Many other states have in recent years engaged in aggressive preemption of local authority. See NLC, City Rights in an Era of Preemption: A State-by-State Analysis (2017), http://nlc.org/sites/default/files/201703/NLC-SML%20Preemption%20Report%202017pages.pdf (last visited Sept. 5, 2017). This brief does not assert that intentional partisan gerrymandering is the sole or even leading cause of this phenomenon, only that it is likely a significant factor. It is worth noting that while all of the states featured above reveal evidence of pro-Republican gerrymandering, the Jackman Report demonstrated indicia of proDemocratic gerrymandering in a handful of states, including, most notably, Rhode Island. SA253.10 Interestingly, the Rhode Island legislature, like many of its apparently gerrymandered Republican counterparts, preempted the authority of local governments in the state to raise the minimum wage in 2014. 2014 R.I. Pub. Laws ch. 145, art. 11, § 4 (codified at R.I. GEN. LAWS § 28-12-25 (2017)). This preemption had the effect of stifling efforts in the state’s largest city, Providence, to raise its minimum wage above the statewide level for a subset of workers. Sam AdlerBell, Why Are Rhode Island Democrats Blocking Minimum-Wage Increases?, THE NATION, June 11, 2014, https://www.thenation.com/article/why-arerhode-island-democrats-blocking-minimum-wageincreases/ (noting that Providence was on the verge of
10 By contrast, the 2016 AP report reveals only a modest proDemocratic EG of 2.3% in the 2016 Rhode Island state house elections, resulting in 1 or 2 extra Democratic seats. AP Report, supra.

37
passing a $15/hour minimum wage law for employees of large hotels).
CONCLUSION
The legislative record from states with major indicia of intentional partisan gerrymandering suggests that such gerrymandering plays a significant role in squelching local democracy. Amici, therefore, urge this Court, for the foregoing reasons, to uphold the district court’s ruling.
Respectfully submitted,
Paul A. Diller Counsel of Record
Willamette University College of Law 245 Winter St. SE Salem, OR 97301 (503) 370-6595 pdiller@willamette.edu
Charles W. Thompson, Jr. Amanda Kellar Karras International Municipal Lawyers Association 51 Monroe Street, Suite 404 Rockville, MD 20850
Nestor M. Davidson Fordham University School of Law 150 W. 62nd Street New York, NY 10023
Counsel for Amici Curiae
September 5, 2017

 
 No. 16-1161
IN THE
Supreme Court of the United States

BEVERLY R. GILL, ET AL., v.

Appellants,

WILLIAM WHITFORD, ET AL., Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
BRIEF FOR BIPARTISAN GROUP OF CURRENT AND FORMER MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF APPELLEES

JASON D. HIRSCH

SETH P. WAXMAN

STEPHANIE SIMON

Counsel of Record

WILMER CUTLER PICKERING JONATHAN CEDARBAUM

HALE AND DORR LLP

ARI J. SAVITZKY

7 World Trade Center

DAVID STOOPLER

250 Greenwich St.

WILMER CUTLER PICKERING

New York, NY 10007

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

CHRISTOPHER D. DODGE Washington, DC 20006

WILMER CUTLER PICKERING (202) 663-6000

HALE AND DORR LLP

seth.waxman@wilmerhale.com

60 State St.

Boston, MA 02109

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................iii

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

INTRODUCTION AND SUMMARY OF ARGUMENT................................................................ 4

ARGUMENT........................................................................ 5

I. EXTREME PARTISAN GERRYMANDERING

UNDERMINES

THE

HEALTHY

FUNCTIONING OF THE HOUSE.................................... 5

A. Extreme Partisan Gerrymandering Subverts Traditional Districting Criteria, Which Harms Both Members And Constituents .................................................. 6

B. Extreme Partisan Gerrymandering Devalues Pragmatic Problem-Solving And Constituent-First Representation In The House ....................................................... 10

1. Hyper-partisan gerrymandering leads to the creation of uncompetitive districts that incentivize Members to prize partisan considerations above all. ............. 11

2. Partisan gerrymandering enhances the influence of political parties at the expense of independentminded Members and the constituents they serve............................... 17

ii

TABLE OF CONTENTS—Continued

Page
3. Partisan gerrymandering impedes Members’ ability to deliver results for their constituents................................... 19

C. Extreme Partisan Gerrymandering Hurts The People Themselves .......................... 24

II. EXTREME

GERRYMANDERING

IS

INCONSISTENT WITH THE NATURE OF

REPRESENTATION IN OUR FORM OF

GOVERNMENT.............................................................. 27

A. Members Of The House Are Direct Representatives Of The People ........................ 28

B. Extreme Gerrymandering Distorts The People’s Voice In Contravention Of The Framers’ Vision...................................... 31

CONCLUSION ................................................................. 34

iii TABLE OF AUTHORITIES

CASES

Page(s)

Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015) ........................................... 29, 32

California Democratic Party v. Jones, 530 U.S. 567 (2000) ..................................................................... 33

Colegrove v. Green, 328 U.S. 549 (1946) ......................... 34

Cook v. Gralike, 531 U.S. 510 (2001)............................... 30

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ........................ 6

Gaffney v. Cummings, 412 U.S. 735 (1973) ................... 33

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ................. 31

League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ........................................... 7

McCulloch v. Maryland, 17 U.S. 316 (1819) ................. 29

Powell v. McCormack, 395 U.S. 486 (1969) ................... 32

Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 32, 33

Shaw v. Reno, 509 U.S. 630 (1993) .................................. 14

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ............................................................... 29, 33

Vieth v. Jubelirer, 541 U.S. 267 (2004) ..................... 32, 34

Wesberry v. Sanders, 376 U.S. 1 (1964).......................... 28

DOCKETED CASES Moreno v. Gessler, No. 11 Civ. 3461 (D. Colo.) ......... 7, 10

iv

TABLE OF AUTHORITIES—Continued

Page(s)
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 2, cl. 1.............................................................. 30 art. I, § 2, cl. 3.............................................................. 30 art. I, § 3, cl. 1.............................................................. 28 preamble ...................................................................... 29

OTHER AUTHORITIES

Adams, Bruce, Toward a System of “Fair and Effective Representation”: A Common Cause Report on State and Congressional Reapportionment (1977) ........................................... 15

Akron Beacon Journal Staff, Ohio’s 14th Congressional District race: Andrew Jarvi, Dave Joyce, Michael Wager, Akron Beacon Journal (Oct. 19, 2016), https://www.ohio. com/akron/news/politics/ohio-s-14th-congr essional-district-race-andrew-jarvi-dave-jo yce-michael-wager ..................................................... 15

Amash, Twitter (May 25, 2017) ....................................... 18

Babington, Charles, House GOP demotes lawmaker who defied leaders on trade vote, Deseret News (AP) (June 22, 2015), http://www.deseretnews.com/article/76567 5988/House-GOP-demotes-lawmaker-whodefied-leaders-on-trade-vote.html ........................... 19

Berman,

Mitchell

N.,

Managing

Gerrymandering, 83 Tex. L. Rev. 781

(2005) ...................................................................... 20, 32

v
TABLE OF AUTHORITIES—Continued
Page(s) Bipartisan Policy Center, Commission on
Political Reform, Governing in a Polarized America (2014), http://bipartisanpolicy.org/ wp-content/uploads/sites/default/files/files/ BPC%20CPR%20Governing%20in%20a%2 0Polarized%20America.pdf ....................................... 24
Blumenauer, Earl & Jim Leach, Redistricting, a Bipartisan Sport, N.Y. Times (July 8, 2003), http://www.nytimes.com/2003/07/08/ opinion/redistricting-a-bipartisan-sport.html ?mcubz=0 ............................................................... 13, 21
Burke, Cathy, Rep. Rod Blum: I’ll Walk the Walk on Term Limits, Newsmax (May 29, 2015, http://www.newsmax.com/NewsmaxTv/rod-blum-term-limits-iran/2015/05/29/id/ 647607........................................................................... 11
Citizens Don’t Like Gerrrymandering; Study Offers Alternative Redistricting Methods, UVA Today (June 30, 2014), https:// news.virginia.edu/content/citizens-don-t-ge rrymandering-study-offers-alternative-redi stricting-methods ....................................................... 26
Congress of Tomorrow Project Introduction, Congressional Institute, http://conginst.org/ congress-of-tomorrow-project-introduction/ (last visited Aug. 31, 2017) ........................................ 13
Cox, Adam B., Partisan Gerrymandering and Disaggregated Redistricting, 2004 Sup. Ct. Rev. 409 (2004)...................................................... 20, 25

vi
TABLE OF AUTHORITIES—Continued
Page(s) Crippes, Christina, Rod Blum: Desire to reform
Congress drives second term, Quad-City Times (Oct. 22, 2016), http://qctimes.com/ news/local/rod-blum-desire-to-reform-cong ress-drives-second-term/article_b61ab319f74e-588a-8b21-f016186fb500.html ........................... 16
Debates on the Federal Constitution (J. Elliot ed., 1876) .......................................................... 29, 31, 32
Duncan, Dustin, Group seeks to change redistricting, The Southern Illinoisan (Mar. 23, 2014), thesouthern.com/news/local/groupseeks-to-change-redistricting/article_9e9e1 bf7-04c3-5d74-bb5a-a89ed72dfb75.html .................. 27
Eilperin, Juliet, The Gerrymander That Ate America, Slate (Apr. 17, 2006), www.slate. com/articles/news_and_politics/politics/2006/ 04/the_gerrymander_that_ate_america.ht ml .................................................................................. 23
Federalist No. 10 (Madison)............................................. 30
Federalist No. 37 (Madison)............................................. 30
Federalist No. 40 (Madison)............................................. 28
Federalist No. 52 (Madison)....................................... 28, 30
Federalist No. 56 (Madison)....................................... 10, 32
Federalist No. 57 (Madison)....................................... 29, 32
Fleury, Kathleen & Virginia M. Wright, A Chat With Olympia Snowe, Downeast (Oct. 2014), www.downeast.com/olympia-snoweinterview/ .................................................................... 12

vii
TABLE OF AUTHORITIES—Continued
Page(s) Frontline, Divided States of America (Part I)
PBS (aired Jan. 18, 2017), http://www.pbs. org/wgbh/frontline/film/divided-states-ofamerica/transcript ...................................................... 18
Gallagher, Mike & Ro Khanna, Two congressmen offer a bipartisan plan to ‘drain the swamp’, USA Today (June 1, 2017), https://www.usatoday.com/story/opi nion/2017/06/01/two-congressmen-offer-bip artisan-plan-drain-swamp/102189506/..................... 12
Gallup, Update: Americans’ Confidence in Voting, Election (Nov. 1, 2016), http:// www.gallup.com/poll/196976/update-ameri cans-confidence-voting-election.aspx ...................... 25
Grossman, Perry, Fixing Gerrymandering Doesn’t Just Make Elections More Fair, Slate (Mar. 20, 2017) http://www.slate.com/ articles/news_and_politics/jurisprudence/2 017/03/fixing_gerrymandering_affects_who _is_sent_to_office_and_how_they_govern.h tml................................................................................. 14
Greene, Jamal, Judging Partisan Gerrymanders Under the Elections Clause, 114 Yale L.J. 1021 (2005)............................. 32
Harger, Jim, Is the GOP throwing Justin Amash under the bus?, Michigan Live (June 24, 2011), http://www.mlive.com/ news/grand-rapids/index.ssf/2011/06/post_1 78.html.......................................................................... 18

viii
TABLE OF AUTHORITIES—Continued
Page(s)
Harris Poll, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013), http://www.the harrispoll.com/politics/Americans_Across_ Party_Lines_Oppose_Common_Gerryman dering_Practices.html ............................................... 26
Hayden, Maddy, Pearce talks endangered species, Trump, Carlsbad Current-Argus (Aug. 18, 2016), http://www.currentargus. com/story/news/local/2016/08/18/pearcetalks-endangered-species-trump/88954948/ ..... 15, 23
Hill Staff, Wamp backs Dem redistricting plan, The Hill (June 23, 2005), http://www.the hill.com/capital-living/food-and-drink/23053 -wamp-backs-dem-redistricting-plan ........................ 6
Ingraham, Christopher, One easy way to end gerrymandering: Stop letting politicians draw their own districts, Wash. Post (June 2, 2014), https://www.washingtonpost.com/ news/wonk/wp/2014/06/02/one-easy-way-toend-gerrymandering-stop-letting-politician s-draw-their-own-districts/?utm_term=.79 d19851ada4 .................................................................. 27
Israel, Gideon, A Matter of Principles: Mark Meadows Speaks Conservatism, Mida (July 2, 2017), http://mida.org.il/2017/02/07/matterprinciples-mark-meadows-speaks-conserva tism ......................................................................... 11, 19

ix
TABLE OF AUTHORITIES—Continued
Page(s)
Issacharoff, Samuel & Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541 (2004) ............................................................... 20, 25
Iyer, Sundeep, Redistricting and Congressional Control Following the 2012 Election, Brennan Center for Justice (Nov. 28, 2012), https://www.brennancenter.org/analysis/re districting-and-congressional-control-follo wing-2012-election........................................................ 9
Johnson, Jenna, Is This How Maryland’s 3rd Congressional District is Supposed to Look?, Wash. Post (Sept. 21, 2014), https://www.washingtonpost.com/local/mdpolitics/in-maryland-anti-gerrymanderingactivists-take-message-to-their-target/20 14/09/21/2f3dce36-4180-11e4-9a15-137aa015 3527_story.html?utm_term=.4b3cf65f916f ............... 9
Joseph, Cameron, Jordan in redistricting crosshairs after bucking Boehner, The Hill (July 28, 2011), http://thehill.com/blogs/ ballot-box/house-races/174211-jordan-in-re districting-crosshairs-after-bucking-boehner.......... 18
Letter from T. Pickering to C. Tillinghast, Dec. 24, 1787, in 1 The Founders’ Constitution 252 (Philip B. Kurland & Ralph Lerner eds., 1987) .................................................................... 29
Levinson, Daryl L. & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006).......................................... 14

x
TABLE OF AUTHORITIES—Continued
Page(s) Mann, Thomas E. & Norman J. Ornstein, It’s
Even Worse Than It Looks (2012) ........................... 20
Marcos, Cristina, Lawmakers set up bipartisan Problem Solvers Caucus for new Congress, The Hill (Feb. 3, 2017), http://thehill.com/ blogs/floor-action/house/317764-bipartisanlawmakers-set-up-problem-solvers-caucusfor-new-congress ........................................................ 16
MassINC, New Poll Shows Public Strongly Favors Independent Commission on Redistricting (Feb. 18, 2015), https:// massinc.org/2015/02/18/new-poll-shows-pub lic-strongly-favors-independent-commission -on-redistricting/ ........................................................ 26
Neal, Dale, Meadows loses subcommittee chair after bucking leaders, Des Moines Register (June 21, 2015), http://www.desmoinesregis ter.com/story/news/local/2015/06/21/meadow s-loses-subcommittee-chair-buckingleaders/29075013/........................................................ 18
Pearson, Rick, House Members Blast Illinois’ New District Map in Court, Chi. Trib. (Nov. 18, 2011), http://articles.chicago tribune.com/2011-11-18/news/ct-met-illinoiscongressional-redistricting-20111118_1_newmap-democratic-map-roskam ..................................... 8

xi
TABLE OF AUTHORITIES—Continued
Page(s) Polsby, Daniel D. & Robert D. Popper, The
Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301 (1991) ..................................................................... 20
Potter, Trevor & Marianne H. Viray, Election Reform: Barriers to Participation, 36 U. Mich. J.L. Reform 547 (2003) .................................... 24
Press Release, Rep. Jim Cooper, Cooper, Tanner Work to Stop Gerrymandering (Apr. 21, 2010) https://cooper.house.gov/mediacenter/press-releases/cooper-tanner-workto-stop-gerrymandering ............................................ 15
Press Release, Rep. Carlos Curbelo, Curbelo, Deutch Welcome 50 Members to Bipartisan Climate Solutions Caucus (July 25, 2017) https://curbelo.house.gov/news/documentsi ngle.aspx?DocumentID=1603................................... 16
Press Release, Rep. Alan Lowenthal, Congressman Lowenthal Leads Bipartisan Amicus Brief to Supreme Court Defending Voters’ and States’ Rights (Jan. 26, 2015), https://lowenthal.house.gov/news/documen tsingle.aspx?DocumentID=398562 ............................ 9
Raviv, Adam, Unsafe Harbors: One Person, One Vote and Partisan Redistricting, 7 U. Pa. J. Const. L. 1001 (2005) ................................. 13, 15

xii
TABLE OF AUTHORITIES—Continued
Page(s) Reagan, Ronald, Remarks at the Republican
Governors Club Annual Dinner (Oct. 15, 1987) available at http://www.presidency. ucsb.edu/ws/?pid=33559 .............................................. 4
3 The Records of the Federal Convention of 1787 (Max Farrand ed., 1911) ................................... 28
Ripon Advance News Service, Fitzpatrick leads bipartisan resolution calling on House to end political gerrymandering, The Ripon Advance (May 11, 2017), https:// riponadvance.com/stories/fitzpatrick-leadsbipartisan-resolution-calling-house-end-poli tical-gerrymandering/................................................ 23
Rubel, Walter, Pearce, Brazile Agree on Top Political Problem, Las Cruces Sun-News (June 25, 2017), http://www.lcsun-news. com/story/opinion/columnists/2017/06/25/pe arce-brazile-agree-top-political-problem/42 6468001/........................................................................ 11
Schott, Bryan, Most Utahns Want Redistricting Done by Independent Commission, Utah Policy.com (July 29, 2015), http://utahpolicy. com/index.php/features/today-at-utah-policy/ 6480- ............................................................................. 26
Snowe, Olympia & Dan Glickman, CPR for politics: Why we’re forming the Commission on Political Reform, USA Today (Feb. 19, 2013), https://www.usatoday.com/story/opi nion/2013/02/19/olympia-snowe-and-dan-gli ckman-cpr-for-politics/1931367/ ............................... 19

xiii
TABLE OF AUTHORITIES—Continued
Page(s) Steinhauer, Jennifer, Hello, Illinois? Your
Congressman Is Getting Off the Phone, N.Y. Times (Apr. 24, 2012), http://www. nytimes.com/2012/04/25/us/politics/hello-illi nois-rep-tim-johnson-is-on-the-line.html?m cubz=0 ............................................................................ 8
Stewart, Kyle, Hurd Defends District Lines in Court, Roll Call (July 17, 2017), https:// www.rollcall.com/news/politics/hurd-defendsdistrict-lines-court...................................................... 17
Tarr, G. Alan & Robert F. Williams, Introduction, 37 Rutgers L.J. 877 (2006).......... 12, 14
Wood, Gordon S., The Creation of the American Republic 1776-1787 (1998)...................... 28
Zheng, Lili, Reform seeks public input on redistricting in Md., WMDT (Nov. 1, 2016), www.wmdt.com/news/maryland/reform-se eks-public-input-on-redistricting-in-md-1/1 37894158....................................................................... 25

IN THE
Supreme Court of the United States

No. 16-1161

BEVERLY R. GILL, ET AL., v.

Appellants,

WILLIAM WHITFORD, ET AL., Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR BIPARTISAN GROUP OF CURRENT AND FORMER MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF APPELLEES

INTEREST OF AMICI CURIAE1
Amici curiae are current and former Members of the House of Representatives from both major political parties—16 Republicans and 18 Democrats. Amici hail from 23 different States, representing every corner of our Nation, from south Florida to Maine’s northern border and from southern California’s Pacific coast to the northwest tip of Washington. Despite many politi-
1 No counsel for a party authored this brief in whole or part, and no counsel or party made a monetary contribution to fund the preparation or submission of this brief. No person other than the amici curiae and their counsel made any monetary contribution to its preparation and submission. All parties have consented to this filing.

2
cal and regional differences, amici are united in the belief that, in our system of government, power flows from the People to their political representatives and not the other way around. Amici are moreover united in the belief that removing the most extreme forms of partisan manipulation from the legislative redistricting process is consistent with principled and constituentfirst representation.
Amici are in a unique position to understand the nature of the redistricting process, and are uniquely affected by it. Amici have seen the redistricting process up close, know what it means to represent the people of a community in what Madison called the “popular branch” of government, and know how districting decisions can affect the incentives and pressures a Member experiences.
Amici hope that describing their first-hand experiences with the harms caused by hyper-partisan gerrymandering will help the Court understand why basic, enforceable constitutional limits on extreme gerrymanders will make Congress work better for the People.
Amici are the following Members and former Members of the U.S. House of Representatives, in alphabetical order:
1. Rep. Mark Amodei (R-Nev.)
2. Rep. Don Beyer (D-Va.)
3. Rep. Rod Blum (R-Iowa)
4. Rep. Earl Blumenauer (D-Ore.)
5. Rep. Brendan Boyle (D-Penn.)
6. Fmr. Rep. Mike Castle (R-Del.)
7. Fmr. Rep. Rod Chandler (R-Wash.)

3
8. Fmr. Rep. William Clinger (R-Penn.) 9. Rep. Mike Coffman (R-Colo.) 10. Rep. Jim Cooper (D-Tenn.) 11. Rep. Carlos Curbelo (R-Fla.) 12. Rep. Ted Deutch (D-Fla.) 13. Rep. Brian Fitzpatrick (R-Penn.) 14. Rep. Josh Gottheimer (D-N.J.) 15. Rep. Raúl M. Grijalva (D. Az.) 16. Rep. Andy Harris (R-Md.) 17. Fmr. Rep. David Jolly (R-Fla.) 18. Rep. Marcy Kaptur (D-Ohio) 19. Rep. Dan Kildee (D-Mich.) 20. Rep. Derek Kilmer (D-Wash.) 21. Rep. John Larson (D-Conn.) 22. Rep. Alan Lowenthal (D-Cal.) 23. Rep. Beto O’Rourke (D-Tex.) 24. Rep. Seth Moulton (D-Mass.) 25. Rep. Chellie Pingree (D-Maine) 26. Rep. David Price (D-N.C.) 27. Rep. Jamie Raskin (D-Md.) 28. Rep. Tom Reed (R-N.Y.) 29. Fmr. Rep. Claudine Schneider (R-R.I.) 30. Fmr. Rep. Christopher Shays (R-Conn.) 31. Fmr. Rep. Olympia Snowe (R-Maine) 32. Rep. Thomas Suozzi (D-N.Y.)

4
33. Rep. Scott Tipton (R-Colo.)
34. Fmr. Rep. Zach Wamp (R-Tenn.)
INTRODUCTION AND SUMMARY OF ARGUMENT
Thirty years ago, President Ronald Reagan addressed the annual gathering of the Republican Governors Association to decry the use of partisan gerrymandering. President Reagan explained that what the country needed was “an end to the antidemocratic and un-American practice of gerrymandering congressional districts.”2 Yet, three decades later, amici and their constituents continue to experience the corrosive effects of partisan gerrymandering. Since President Reagan’s call to action, both major political parties have used partisan gerrymandering with ever greater frequency and efficiency, to the detriment of voters of all stripes. Amici therefore believe that the need for some constitutional boundaries is greater than ever.
This brief makes two overarching points.
First, extreme partisan gerrymandering harms our political system, and harms the functioning of the House in particular. It puts raw partisan position ahead of maintaining coherent political communities and sensibly sized and shaped districts based on traditional districting criteria. A cascade of negative results predictably follows: artificially drawn “safe” districts make the general election uncompetitive and give party insiders and a small core of “base” primary voters wield greater influence than the general electorate; political parties gain influence and obstruct independent, con-
2 Reagan, Remarks at the Republican Governors Club Annual Dinner (Oct. 15, 1987) available at http://www.presidency.ucsb.
edu/ws/?pid=33559.

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stituent-first representation; compromise with the other side becomes politically impossible even when there are areas of principled agreement and even when the voters want it; and the People grow frustrated with the capacity of the House to govern effectively, causing disillusionment with and disengagement from our democratic process.
Second, extreme partisan gerrymandering is undemocratic, and cannot be reconciled with the Framers’ idea of a House of Representatives that would be directly accountable to the People through competitive and broad-based elections. In the Framers’ view, the House was to be the institution most directly connected to and representative of the People. Yet the premise of extreme partisan gerrymandering is that politicians choose their voters, and not the other way around. The Framers’ vision precludes such bald manipulation of the electoral process.
Partisan gerrymandering makes it more difficult for Members to do the one job voters expect above all: delivering results for their constituents. Amici see this happening, and see the role partisan gerrymandering plays in this dynamic. We can and must do better.
ARGUMENT
I. EXTREME PARTISAN GERRYMANDERING UNDERMINES THE HEALTHY FUNCTIONING OF THE HOUSE
Extreme partisan gerrymandering is a practical problem for our political system, and for the health of the House of Representatives in particular. In our form of government, partisanship cannot be an end unto itself, as it is with partisan gerrymandering. Members must be free above all else to follow the desires of their constituents. But partisan gerrymandering, in the variety of

6
ways discussed below, creates obstacles to that pursuit. As amicus former Representative Zach Wamp, Republican of Tennessee, explained: “Too many Congressional districts have been carefully designed to guarantee victory for one political party or another … As the political lines become more skewed, successful candidates are increasingly more interested in political rhetoric than solutions and serving the public.”3
A. Extreme Partisan Gerrymandering Subverts Traditional Districting Criteria, Which Harms Both Members And Constituents
Extreme partisan gerrymandering subverts traditional districting principles that preserve coherent local identities and political communities. By definition, the dominant consideration in an extreme partisan gerrymander is systematic benefit to the party drawing the lines, not the needs of existing communities.
Traditional districting principles, such as compactness, regularity, and maintenance of communities of interest, have long played a critical role in creating coherent political communities with shared identities, concerns, and interests. See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120, 1124 (2016).
These principles help ensure that districts have coherent geographic and political identities, and thus help maintain a deep connection between a Member and his or her constituents. As amicus Representative Scott Tipton, Republican of Colorado, has explained, it is incredibly important for a district to have coherent identity. Discussing his district, Rep. Tipton said that “we
3 Hill Staff, Wamp backs Dem redistricting plan, The Hill (June 23, 2005).

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are rural Colorado”—and that rural issues, like water issues, bind his district together, giving it a common language and a core “essence.”4 Rep. Tipton credits the strong community and coherent identity of his district as a feature that encourages political competition, and wards off needless partisanship: In Colorado’s Third Congressional District, “we’ve elected Republicans, we’ve elected Democrats,” he explained; “irrespective of … heritage,” “irrespective of geography,” “irrespective of party[:] we elect the person.”5
Traditional districting criteria aid effective representation in other ways as well. As amicus Representative Mike Coffman, also Republican of Colorado, has noted, drawing districts that respect existing political boundaries means that Members can work more effectively with local officials in serving their constituents.6 In Colorado, that means working with county governments, which administer major federal programs such as Medicaid and food stamps—as amicus Rep. Coffman explained after line-drawers attempted major changes to his district.7
Without constitutional limits on partisan gerrymandering, traditional districting principles can be subverted at will whenever a single political party gains control of the redistricting process and seeks to maximize its political advantage no matter the cost. See, e.g., League of United Latin Am. Citizens v. Perry,
4 Tr. of Testimony of Rep. Scott Tipton (“Tipton Tr.”) 1321, Moreno v. Gessler, No. 11 Civ. 3461 (D. Colo. Oct. 17, 2011).
5 Id. at 1334, 1338.
6 Tr. of Testimony of Rep. Michael Coffman 2573-2574, Moreno v. Gessler, No. 11 Civ. 3461 (D. Colo. Oct. 21, 2011).
7 Id. at 2572.

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548 U.S. 399, 481 (2006) (Stevens, J., concurring in part and dissenting in part). A map that is drawn solely to achieve partisan ends undermines the benefits that tend to come from traditional, compact districts that respect existing geographic and political boundaries.
Consider, for example, Representative John Shimkus, Republican of Illinois. The 2011 redistricting process dramatically changed his district. Rep. Shimkus’s hometown of Collinsville, with a population of just 25,000, was divided among three congressional districts.8 And the geographic size of the district was massively expanded to include all or part of 33 counties. This geography makes it much more difficult for Rep. Shimkus to consistently interact with constituents across the district—nearly impossible, for example, to hold town halls in every community across the district in the same way that he could in a district that was drawn using traditional principles.9
Or consider amicus Representative Andy Harris, Republican of Maryland. Rep. Harris’s district had long been centered in Maryland’s Eastern Shore, a coherent geographic, economic, and cultural region that is rural and focused around the Chesapeake Bay. In 2010, as part of a map that has since been challenged as an extreme partisan gerrymander, 135,000 people from areas on the Bay outside of Annapolis and Baltimore
8 Pearson, House Members Blast Illinois’ New District Map in Court, Chi. Trib. (Nov. 18, 2011).
9 See also Steinhauer, Hello, Illinois? Your Congressman Is Getting Off the Phone, N.Y. Times (Apr. 24, 2012) (former Rep. Tim Johnson (R-IL) lamenting that Illinois’ “grossly gerrymandered congressional map” would have forced him into a district in which “two-thirds of the voters have never been represented by” him).

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were pulled out of the district, and replaced by about 115,000 people in north central Maryland, a landlocked area on the other side of Baltimore along the Pennsylvania border. This change may have served partisan ends—i.e., packing a higher percentage of “Republican” voters into Rep. Harris’s district—but it also diluted the coherent, Eastern-Shore-based identity of Rep. Harris’s district.10
Districting changes like those affecting Rep. Shimkus and amicus Rep. Harris and the communities they serve are not fair to anyone—and especially not to the voters.11 As Representative Rodney Davis (R-IL) has explained, extreme partisan gerrymanders make it unnecessarily difficult to “form districts that better reflect the interests of [the] citizens.”12
Traditional districting considerations—such as compactness, contiguity, respect for natural boundaries and preexisting county and municipal lines, and the
10 Johnson, Is This How Maryland’s 3rd Congressional District is Supposed to Look?, Wash. Post (Sept. 21, 2014).
11 Partisan gerrymanders also frequently lead to incumbents running in what are effectively new districts drawn with no particular goal beyond partisan ends. Sometimes that means that two incumbents’ districts have been smashed together, eliminating established political communities and forcing experienced Representatives to run against one another. See Iyer, Redistricting and Congressional Control Following the 2012 Election, Brennan Center for Justice (Nov. 28, 2012) (finding that, in 2012, 40 incumbents, evenly split by party, left office at least in part due to districting changes).
12 Press Release, Rep. Alan Lowenthal, Congressman Lowenthal Leads Bipartisan Amicus Brief to Supreme Court Defending Voters’ and States’ Rights (Jan. 26, 2015), https://lowenthal.house.gov/news/documentsingle.aspx?Document ID=398562.

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maintenance of communities of common interest—are meant to reinforce the traditional role of representatives as leaders in and members of a coherent political and geographic community. That is how representation works best in our democracy: As Madison wrote, a Representative should possess “a local knowledge of their respective districts” and remain “acquainted with the interests and circumstances of his constituents.” Federalist No. 56. Amicus Rep. Tipton echoed that idea in discussing how he got into politics: He was taught that there is a “public responsibility to participate,” which means citizens going to “precinct caucuses and county assemblies, because that’s how the process works. You had an opportunity to be able to see who was going to cast your vote in the state legislature and Congress and the city council.”13 Traditional districting principles are able to reflect that sense of participation and community identity. Extreme partisan gerrymanders sacrifice those values in favor of whatever map will most benefit the particular party in power.
B. Extreme Partisan Gerrymandering Devalues Pragmatic Problem-Solving And ConstituentFirst Representation In The House
Extreme partisan gerrymandering also rewires a district’s internal political dynamics—between Members and their respective political parties, and between Members and their constituents. Partisan gerrymanders move affected Members towards their respective ideological poles, encourage Members to eschew principled, bipartisan compromise, and transfer power from voters to political parties. Importantly, these gerrymanders prevent Members from following the cardinal rule of
13 Tipton Tr. 1315.

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serving as a representative of the People, which Representative Mark Meadows, Republican of North Carolina has succinctly set forth: “My allegiance is always to my constituents and never to a party.”14 That is why, as Representative Steve Pearce (R-NM) has explained, addressing gerrymandered districts is “the most important thing that we should do as a nation[.]”15
1. Hyper-partisan gerrymandering leads to the creation of uncompetitive districts that incentivize Members to prize partisan considerations above all.
One of the fundamental problems with extreme gerrymandering is that it can create or entrench artificially “safe” districts that, by definition, rarely feature competitive general elections. This can be done through “packing” the disfavored party’s supporters into a small minority of districts, and thus “cracking” that party’s remaining support in the many remaining districts. Regardless of the statewide total, or the particulars of the election, the line-drawing party will be “safe” in the majority of that state’s districts. In part because of the sharp rise in such extreme partisan gerrymandering, amicus Representative Rod Blum, Republican of Iowa, explained that out of the 435 House districts, “you probably have 25-35 congressional districts that are actually competitive.”16 Amica former Senator and Representative Olympia Snowe, Republi-
14 Israel, A Matter of Principles: Mark Meadows Speaks Conservatism, Mida (July 2, 2017).
15 Rubel, Pearce, Brazile Agree on Top Political Problem, Las Cruces Sun-News (June 25, 2017).
16 Burke, Rep. Rod Blum: I’ll Walk the Walk on Term Limits, Newsmax (May 29, 2015).

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can of Maine, was even more pessimistic, suggesting in October 2014 that “as few as seven seats are considered to be tossups in this election” due largely to gerrymandering.17
The general election result in “safe” districts is rarely in doubt. Representative Mike Gallagher (RWI) has explained that politicians should not be “allowed to gerrymander their districts and choose their own voters” precisely because “[t]he less competitive a district becomes, the more general elections become formalities.”18 When the general election is a mere formality, then the emphasis naturally shifts to the primary of the party for which the district is “safe”— whoever wins that primary will almost always win the general election. In these circumstances, power shifts from the general electorate to party insiders with influence over the nomination process and to low-turnout primary elections that principally attract a small subset of “base” voters whose views tend to be to the ideological right and left of most other voters.19 As a result, amicus Representative Earl Blumenauer (D-OR) explained in an op-ed with then-Representative Jim Leach (R-IA), “[p]rimary elections in districts that are overwhelmingly Republican produce candidates generally to the right of the average Republican, while more
17 Fleury & Wright, A Chat With Olympia Snowe, Downeast (Oct. 2014).
18 Gallagher & Khanna, Two congressmen offer a bipartisan plan to ‘drain the swamp’, Journal Sentinel (June 1, 2017).
19 See Tarr & Williams, Introduction, 37 Rutgers L.J. 877, 878 (2006) (“Rather, legislators and legislative candidates are driven to appeal to the most ideological members of their own parties, because those partisans turn out disproportionately in party primaries, the only important races in a gerrymandered system.”).

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liberal Democrats usually emerge from primaries in districts that are overwhelmingly Democratic.”20
The elevation of the primary over the general election has meaningful consequences for Members. As Representatives Darin LaHood (R-IL) and Dan Lapinski (D-IL), jointly described last year when introducing their Congress of Tomorrow Project, a bipartisan endeavor focused in part on minimizing partisanship in redistricting, “as a result of years of gerrymandering congressional districts, some of our elected public servants are winning their offices by a minority of a minority of a minority.”21 A Member in a “safe” district has strong incentives to appeal to the party insiders and/or highly-partisan primary voters who hold the key to reelection.22 This dynamic, amicus Representative David Price (D-NC) noted, “really affects the way members behave once they come [to Congress]. I’ve heard some guys say they might be more moderate, but they just can’t be …. It all adds up to pretty extreme
20 Blumenauer & Leach, Redistricting, a Bipartisan Sport, N.Y. Times (July 8, 2003).
21 Congress of Tomorrow Project Introduction, Congressional Institute, http://conginst.org/congress-of-tomorrow-project-introduc tion/ (last visited Sept. 5, 2017).
22 See, e.g., Raviv, Unsafe Harbors: One Person, One Vote and Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1068 (2005) (“[P]oliticians who are elected to office only have to cater to voters from one party, and such politicians—either out of conviction or out of political prudence—tend to fall further from the ideological center than do politicians who have to reach out to voters from both parties to get elected.”).

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behavior. The gerrymandering really exacerbated that.”23
In other words, when the desires of the most ideologically extreme “minority of a minority of a minority” diverge from the desires of the broader electorate, the former will receive outsized consideration in a gerrymandered “safe” seat. The result is a dynamic that amici see all too often: intense pressure to be driven by partisanship over all other considerations, leaving more moderate voters from the party that drew the district lines, independent voters, and voters from the disfavored party (including those who could have been cross-over voters) all feeling voiceless and unrepresented in the House.24 Amicus Representative Jim Cooper (D-TN) laid bare the broad scope of the problem: gerrymandering “is not only unfair to independent voters, but all voters, because it creates a Congress
23 Grossman, Fixing Gerrymandering Doesn’t Just Make Elections More Fair, Slate (Mar. 20, 2017).
24 This Court has recognized this dynamic. Cf. Shaw v. Reno, 509 U.S. 630, 648 (1993) (“When a district obviously is created solely to effectuate the perceived common interests of one [] group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.”). So have prominent legal scholars. See Levinson & Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2335 (2006) (“The absence of a general election threat enables party activists, who turn out in disproportionate numbers in primary elections and whose views typically reflect the extremes of the party’s support, to select more partisan primary winners.”); see also Tarr & Williams, Introduction, 37 Rutgers L.J. at 878 (“Partisan gerrymandering encourages extreme partisanship and extreme positions.”).

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of highly-partisan representatives when most Americans are centrists.”25
This all stands in contrast to the types of truly competitive districts that are choked out of existence by extreme gerrymanders. A competitive district, as Representative David Joyce (R-OH) has explained, “forces you to evaluate each piece of legislation and not just answer to the fringes of the parties.”26 Winning in a competitive district demands that Members actively engage with, and craft policy positions designed to help, a broad cross-section of their constituents.27 Rep. Pearce, also a Republican, noted that his competitive New Mexico district forces him to “talk to a lot of Democrats” and to “go into areas that have never seen a Republican.”28 In these more competitive districts, Members actively work to represent their whole constituency, and citizens reciprocate with more robust civic engagement.
25 Press Release, Rep. Jim Cooper, Cooper, Tanner Work to Stop Gerrymandering (Apr. 21, 2010) https://cooper.house.gov/ media-center/press-releases/cooper-tanner-work-to-stop-gerryman dering (emphasis added).
26 Akron Beacon Journal Staff, Ohio’s 14th Congressional District race: Andrew Jarvi, Dave Joyce, Michael Wager, Akron Beacon Journal (Oct. 19, 2016).
27 See Adams, Toward a System of “Fair and Effective Representation”: A Common Cause Report on State and Congressional Reapportionment 24 (1977) (“Safe districts remove the incentive to grant political concessions to constituent interests … or create electoral coalitions [that] ensure representation of diverse points of view.”); Raviv, Unsafe Harbors, 7 U. Pa. J. Const. L. at 1068 (arguing that safe districts encourage polarization in decisionmaking bodies).
28 Hayden, Pearce talks endangered species, Trump, Carlsbad Current-Argus (Aug. 18, 2016).

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Members from these districts also drive the creation of and membership in House caucuses that incubate pragmatic ideas in order to minimize partisanship and deliver results for constituents. For example, amici Republican Representative Tom Reed of New York and Democratic Representative Josh Gottheimer of New Jersey co-chair the Problem Solvers Caucus, which, as its name suggests, is designed to overcome party polarization and deliver practical solutions for the American people.29 Likewise, amici Republican Representative Carlos Curbelo and Democratic Representative Ted Deutch, both of Florida, co-chair the bipartisan Climate Solutions Caucus, which explores policy solutions designed to address the impacts of our changing climate.30 Indeed, to best represent the constituents of his competitive district, amicus Rep. Blum has caucused with multiple, cross-cutting groups, such as the Freedom Caucus and the Problem Solvers Caucus. As Rep. Blum explained: “I think I’ve done an excellent job of standing up to Washington, D.C., in my own party when it needs to be stood up to, and then also compromising when it’s for the good of Eastern Iowa.”31
Representative Will Hurd (R-TX) perhaps best summed up the benefits of competitive districts in July 2017 when he said: “My district is competitive, and that’s a good thing … because it forces people to talk to
29 See Marcos, Lawmakers set up bipartisan Problem Solvers Caucus for new Congress, The Hill (Feb. 3, 2017).
30 Press Release, Rep. Carlos Curbelo, Curbelo, Deutch Welcome 50 Members to Bipartisan Climate Solutions Caucus (July 25, 2017) https://curbelo.house.gov/news/documentsingle.aspx?Doc umentID=1603.
31 Crippes, Rod Blum: Desire to reform Congress drives second term, Quad-City Times (Oct. 22, 2016).

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a broader sense of the community[.] … If more districts were like mine, we’d have better caliber people in Washington.”32
2. Partisan gerrymandering enhances the influence of political parties at the expense of independent-minded Members and the constituents they serve.
The opportunity to engage in unfettered partisan gerrymandering also alters the dynamics between Members and their political parties. Power shifts to party insiders, who dictate the literal party line and demand that Members abide by it, irrespective of the preferences of a Member’s constituents. If an independent-minded Member breaks with her party on issues where the party and her constituents are not aligned, party insiders can use the next redistricting process to make reelection difficult for that Member, or eliminate her seat altogether. This power dynamic distorts the proper functioning of the House and makes it less responsive to the People.
Members have already responded to efforts by political parties to come between them and their constituents. Rep. Meadows, Representative Raul Labrador (R-ID), and other Members started the Freedom Caucus as just such a response. In the wake of the 2014 election, Republican Members were receiving orders from their party on the substantive positions they needed to take on important issues, even though some of the positions being pressed upon them were not consistent with their constituents’ preferences. As Rep. Meadows explained then, “I didn’t run for Congress to
32 Stewart, Hurd Defends District Lines in Court, Roll Call (July 17, 2017).

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be a yes vote for House Republican leadership. … I came to Congress to make the voices of the people of Western North Carolina heard.”33 For his part, Rep. Labrador recounted that he helped found the Freedom Caucus in order to preserve his independence from party insiders so that he and other Members could always put their constituents first: “We said ‘enough is enough. Let’s start a group that actually listens to the people back home, that actually has a good feeling for what the people back home want to do.’”34
In amici’s experience, if partisan gerrymandering remains unchecked, party insiders will use the redistricting process to threaten or punish independentminded Members. For example, Representative Jim Jordan (R-OH) was threatened with the erasure of his districts by party officials after he took independent stands to represent his constituents’ interests above party interests when the two were in conflict.35 And it went even further in the case of Representative Justin Amash (R-MI), where the party actually redrew his district in an unsuccessful attempt to defeat his reelection.36 Using the redistricting process to enforce inter-
33 Neal, Meadows loses subcommittee chair after bucking leaders, Des Moines Register (June 21, 2015).
34 Frontline, Divided States of America (Part I) PBS (aired Jan. 18, 2017), http://www.pbs.org/wgbh/frontline/film/dividedstates-of-america/transcript/.
35 Joseph, Jordan in redistricting crosshairs after bucking Boehner, The Hill (July 28, 2011).
36 Harger, Is the GOP throwing Justin Amash under the bus?, Michigan Live (June 24, 2011); see also Amash, Twitter (May 25, 2017) (“Gerrymandered by Republicans and the Michigan Chamber of Commerce to prevent my re-election. It didn’t work.”).

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nal party discipline is anathema to Members’ faithful and independent representation of voters’ interests. Rep. Meadows emphasized this point only recently: “There should never be a punishment for voting the will of the people. … To do otherwise would be to be putting party over people, and most Americans have a strong distaste for that.”37
3. Partisan gerrymandering impedes Members’ ability to deliver results for their constituents.
The increases in party influence and the number of Members affected by “safe” district dynamics caused by hyper-partisan gerrymandering have led to an unprecedented rise in partisanship in the House. As amica former Senator Snowe has explained, “[g]errymandered congressional districts produce predictably partisan representatives from each party” who are “further to the right and left than average citizens.”38 The result, unfortunately, is that partisan grandstanding and unprincipled obstruction reign supreme while independent-minded, results-oriented representation suffers.
1. The ability to find pragmatic, bipartisan solutions on policy questions big and small has suffered.39
37 Israel, A Matter of Principles, supra; see also Babington. House GOP demotes lawmaker who defied leaders on trade vote, Deseret News (AP) (June 22, 2015) (Rep. Meadows stating “No one should be punished for voting their conscience and representing their constituents[.]”).
38 Snowe & Glickman, CPR for politics: Why we’re forming the Commission on Political Reform, USA Today (Feb. 19, 2013).
39 See generally Mann & Ornstein, It’s Even Worse Than It Looks (2012) (discussing the rise of hyper-partisanship and “ve-

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Amici know that there are areas where Members from all sides share common ground notwithstanding their deeply held beliefs. And where the principled beliefs of Members from different parties overlap, the House works best when those Members work together to tackle an issue. Today, that is not what happens. Instead, even on issues where bipartisan agreement exists, the “playto-the-base” and “play-to-the-party-insiders” dynamics that partisan gerrymandering encourages cause Members to leave common-sense policy solutions on the table. For some, that happens because in the current environment they may deem it more advantageous to attack the other side on a partisan cable news network rather than sit down, grapple with real differences, and explore the areas of genuine common ground that really do exist.40 For others, the political dynamics in their district are such that working in a bipartisan way—any bipartisan way—will hurt their chances for reelection, i.e., for winning their party primary.
hemently adversarial” politics); Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005) (discussing effects of “excessive partisanship”); Issacharoff & Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. Pa. L. Rev. 541, 574 (2004) (“The result is not only less electoral accountability but also more fractiousness in government and more difficulty in forming legislative coalitions across party lines.”).
40 See Polsby & Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301, 306-307 (1991) (“[T]he beneficiaries of gerrymanders … are also less needful of being near the political center of their districts. They are, in brief, more likely to be ideologues”); Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 Sup. Ct. Rev. 409, 430 (2004) (arguing that “safe seats produce more polarized representatives because, by definition, the median voter in a district that is closely divided between the two major parties is more centrist than the median voter in a district dominated by one party”).

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Amici see these dynamics at play constantly. Amicus Rep. Blumenauer and former Rep. Leach explained that as a result of gerrymandering, “Members are less inclined to talk and cooperate, much less compromise,” and “[t]he legislative agenda is shaped more to energize the political base than to advance the common good.”41 Even when they want to, Members are less able to strike compromises that are consistent with their independent judgment and their values (or unable to resist deals that don’t reflect those values) because they are required to prioritize activists’ desire for partisanship over the majority’s desire for pragmatic solutions. Importantly, this is true regardless of a Member’s particular district. For a Member who occupies an artificial “safe” seat, the dynamics described above apply with particular force. But even for Members who are not directly subject to such electoral disincentives, compromise is more difficult in an environment where there are no limits to the pursuit of partisanship in the shaping of electoral rules. Members who want to work from a position of principled independence have fewer potential partners on the other side. A critical mass of Members who are primarily focused on playing to a partisan base can thus undermine the legislative process for all.
Perhaps the saddest aspect of this dilemma is that, as amici know well, cooperation begets cooperation. Members who strike a difficult bargain on one issue develop trust that then allows them to work together in other areas—actively seeking areas of common ground where cooperation can lead to common-sense, mutually agreeable solutions to the problems our Nation faces. In earlier, less partisan eras, the result was a virtuous
41 Blumenauer & Leach, Redistricting, supra.

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cycle of building trust. In today’s partisan climate, a vicious cycle predominates, fostered in substantial part by extreme gerrymandering.
None of this is to suggest that Members should reflexively embrace bipartisanship for its own sake. Members of Congress can, will, and should hold principled beliefs that simply are not up for compromise. What matters is that Members are guided only by their judgment about how to deliver solutions for their constituents. When serving one’s constituents calls for toeing the party line, a Member should do that; likewise, when serving one’s constituents calls for working towards a bipartisan compromise, a Member should do that too. The principal problem with partisan gerrymandering is that it encourages partisanship for its own sake. That, amici strongly believe, is something no Member should embrace.
2. These negative effects for Members also hurt the House as an institution. The dramatic increase in partisanship has been accompanied by an equally dramatic decrease in the types of major bipartisan deals that leaders on both sides of the aisle were able to forge throughout much of the 20th Century. As amicus Representative Brian Fitzpatrick, Republican of Pennsylvania, explained, “[p]artisan gerrymandering has exacerbated electoral complacency … and contributed to the growing divide of partisanship that grinds the gears of government to a halt.”42 The overall productivity of the House has declined as a result, diminishing the House’s role in our government, which amici want to avoid.
42 Ripon Advance News Service, Fitzpatrick leads bipartisan resolution calling on House to end political gerrymandering, The Ripon Advance (May 11, 2017).

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The dynamics that flow from hyper-partisan gerrymandering also contribute to the growing partisan rancor in the House. Too often, as Rep. Pearce observed, Members who represent gerrymandered districts “can say the most outlandish political stuff [they] want to say” without consequence.43 Not only does this sort of “red meat” partisan rhetoric deter meaningful problem-solving, it also diminishes the standing of the House in the eyes of the People.
The jump in partisanship in the House has also led to a shift of power away from House Committees, which were (and remain) natural gathering places for Members from all sides with particular policy concerns and expertise.
3. Tellingly, virtually no one who has served in Congress actually supports limitless, unchecked partisanship in the districting process. Even former Speaker of the House Newt Gingrich has candidly acknowledged that, with extreme partisan gerrymandering, each party “get[s] to rip off the public in the states where they control,” but “the public gets ripped off in [all] circumstances.”44 According to Gingrich, “[i]n the long run, there’s a downward spiral of isolation.”45 On that point, amici all agree: When partisan gerrymanders devalue general elections and the general electorate and encourage partisan grandstanding for the base over independent judgment and delivering results to constituents, we all lose.
43 Hayden, Pearce talks, supra.
44 Eilperin, The Gerrymander That Ate America, Slate (Apr. 17, 2006).
45 Id.

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C. Extreme Partisan Gerrymandering Hurts The People Themselves
As explained above, two of the principal outgrowths of partisan gerrymandering are the lack of cooperation among Members even when there is common ground and voters’ feeling of a foreordained, “rigged” outcome in non-competitive “safe” districts. These phenomena cause voters of all stripes to lose faith in the electoral process. The People get less in the way of results, and feel powerless to boot. As one distinguished commission, which included amica Senator Snowe and other former Members of Congress, has explained: “Th[e] overtly political [districting] process sows distrust among the electorate about the fairness of the districts as drawn and adds to the rancor between the political parties when one feels that the other is assigning lines that disadvantage their political opponents.”46
Indeed, as more and more elections become uncompetitive—or are effectively reserved to those core partisans who tend to vote in party primaries—citizens increasingly view their votes as hollow gestures, which discourages turnout.47 Voters understand when, as amicus Rep. Harris has explained, a districting map is
46 Bipartisan Policy Center, Commission on Political Reform, Governing in a Polarized America 30 (2014).
47 Potter & Viray, Barriers to Participation, 36 U. Mich. J.L. Reform 547, 575 (2003) (electoral competition “plainly has a positive effect on the interest and participation of voters in the electoral process” but “[i]t stands to reason that voter turnout decreases when voters feel that their votes are inconsequential. This would occur most often when the outcome of an election appears so clearly predetermined as to make the election a formality.”).

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“not fair to citizens throughout the state.”48 Uncompetitive seats lead voters to feel left out of the conversation entirely.49
As a result, faith in the integrity of elections has dropped precipitously in recent years. The Gallup Poll found that between 2009 and 2016, the percentage of Americans who “have confidence” in the “honesty of elections” tumbled from 59 percent to 30 percent, while those lacking faith rose from 40 percent to 69 percent.50 Partisan gerrymandering is a significant contributor to this loss of faith. A November 2013 poll found that 64 percent of respondents (including a majority of Republicans, Democrats, and Independents) believed that the redrawing of districts is often used to take power away from voters.51
In light of these trends, proposed electoral reforms, such as the introduction of independent or bipartisan
48 Zheng, Reform seeks public input on redistricting in Md., WMDT (Nov. 1, 2016).
49 See generally Issacharoff & Karlan, Where to Draw, 153 U. Pa. L. Rev. at 574 (“Noncompetitive elections threaten both the legitimacy and the vitality of democratic governance”); see Cox, Partisan Gerrymandering, 2004 Sup. Ct. Rev. at 433 n.66 (discussing how efforts to gerrymander may cause the public “to see the political process as somehow less legitimate and thereby skew the incentives to participate”).
50 See Gallup, Update: Americans’ Confidence in Voting, Election (Nov. 1, 2016). This rapid shift can be attributed only in part to the highly partisan 2016 presidential election. As early as 2014, 59 percent of Americans said they lacked confidence in the honesty of elections, while only 40 percent held such confidence—a mirror image of the poll results from 2009. Id.
51 See The Harris Poll, Americans Across Party Lines Oppose Common Gerrymandering Practices (Nov. 7, 2013).

26
redistricting commissions, have proven increasingly popular with voters across the political spectrum.52 Voters are searching for some way to escape the dynamic of needless hyper-partisanship. Amici share that view, and embrace the States’ role as laboratories for redistricting reform.53
But amici also know that enacting redistricting reform can be exceedingly difficult where one party controls the machinery of the districting process. In Illinois, voters have sought an amendment to the state constitution that would prevent any districts that are “drawn to purposefully or significantly discriminate against or favor any political party or group, and not considering the residence of any person.”54 But organs of state government controlled by the other party have
52 See, e.g., MassINC, New Poll Shows Public Strongly Favors Independent Commission on Redistricting (Feb. 18, 2015), https://massinc.org/2015/02/18/new-poll-shows-public-stronglyfavors-independent-commission-on-redistricting/ (February 2015 poll finding Massachusetts residents favor independent redistricting commission by 62 to 23 percent margin); Schott, Most Utahns Want Redistricting Done by Independent Commission, Utah Policy.com (July 29, 2015), http://utahpolicy.com/index.php/ features/today-at-utah-policy/6480- (July 15 poll finding Utahans favor independent districting commission by 65 to 25 percent margin); Citizens Don’t Like Gerrrymandering; Study Offers Alternative Redistricting Methods, UVA Today (June 30, 2014), https://news.virginia.edu/content/citizens-don-t-gerrymanderingstudy-offers-alternative-redistricting-methods (June 2014 poll finding Virginians favor independent redistricting commission by 74 to 15 percent margin).
53 Indeed, many of amici’s home States, such as California and Iowa, have been national leaders in removing gerrymandering from their redistricting processes.
54 Duncan, Group seeks to change redistricting, The Southern Illinoisan (Mar. 23, 2014).

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blocked this proposed reform. Even for amicus Representative Alan Lowenthal, who played a significant role in California’s transition to an independent commission, the path to that result was long, difficult, and beset by partisan opposition from his own party.55
Entrenched majorities must be subject to basic limits on their ability to gerrymander for purely partisan gain. The health of the House, especially its ability to serve the People with clear-eyed independence, as intended, depends on it.
II. EXTREME GERRYMANDERING IS INCONSISTENT WITH THE NATURE OF REPRESENTATION IN OUR FORM OF GOVERNMENT
Extreme partisan gerrymandering is not just a practical problem for the functioning of our government. It is inconsistent with the basic principles on which that government was founded.
The Framers gave the House of Representatives a special and critical role: to be the authentic voice of the People. They designed the House to be the body closest to the People, and closest to the ideal of a representative democracy. They intended Members of the House and the communities they serve to share strong bonds.
As Members and former Members of the House, amici strive to live up to the principles that animated the Framers’ vision. Extreme gerrymanders are inconsistent with that vision
55 See Ingraham, One easy way to end gerrymandering: Stop letting politicians draw their own districts, Wash. Post (June 2, 2014).

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A. Members Of The House Are Direct Representatives Of The People
The Framers conceived of a government in which institutions would reflect different forms of political authority. See Federalist No. 40 (Madison); see also, e.g., Wood, The Creation of the American Republic 17761787, at 553-562 (1998). The President and the Senate, each indirectly elected to lengthy terms, were meant to reflect aspects of constitutional monarchy and aristocracy, respectively. Id.56 But the House, then as now, was to be the bastion of democracy—“the grand depository of the democratic principle of the Gov[ernmen]t,” as George Mason put it, 3 The Records of the Federal Convention of 1787, at 48 (Farrand ed. 1911) ( “Farrand”), or the “popular branch,” in Madison’s words, Federalist No. 52.
The House’s direct connection to the People was— and is—its essential quality. As Madison explained, the federal government would be a “paper confederacy” without it. Farrand, 472; accord Wesberry v. Sanders, 376 U.S. 1, 14 (1964) (“The House of Representatives … was to represent the people as individuals, and on the basis of complete equality for each voter.”). That direct connection is so vital because, in our constitutional order, “all political power flows from the people.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015) (“AIRC”); see also, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803, 821 (1995) (Framers created “a Federal Gov-
56 As originally drafted and ratified, the Constitution provided for Senators to be chosen by state legislatures rather than by the People. See U.S. Const. art. I, § 3, cl. 1. Direct election of Senators was not permitted until ratification of the 17th Amendment in 1913.

29
ernment directly responsible to the people”); id. at 839 (Kennedy, J., concurring) (“A distinctive character of the National Government, the mark of its legitimacy, is that it owes its existence to the act of the whole people who created it.”); McCulloch v. Maryland, 17 U.S. 316, 404 (1819); accord U.S. Const., Preamble.
The Framers repeatedly emphasized their vision of a House of Representatives that was close to the People, directly responsive to them through the mechanism of frequent and broad-based elections, and thus capable of giving them a powerful voice in the Nation’s decisionmaking. “‘Who are to be the electors of the Federal Representatives?” Madison asked. “Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States.” Federalist No. 57 (Madison); see also Letter from T. Pickering to C. Tillinghast, Dec. 24, 1787, in 1 The Founders’ Constitution 252 (House members are the “immediate Representatives of the People”); 2 Debates on the Federal Constitution 28-29 (J. Elliot ed., 1876) (“Elliot’s Debates”) (“The federal representatives will represent the people; they will be the people.”) (J.C. Jones).
The Framers built these principles directly into the structure of Article I. They provided for direct elections for the House “by the People of the several States” every two years, U.S. Const. art. I, § 2, cl. 1, and ensured that apportionment of House seats would be done “according to [the People’s] respective numbers” in the States, id. cl. 3. And they provided that any person who could vote for “the most numerous Branch of the State Legislature” was eligible to vote in elections for the House as well. Id. cl. 1.

30
Frequent, broad-based elections create a “direct line of accountability between the National Legislature and the people who elect it,” conceived as broadly as possible. Cook v. Gralike, 531 U.S. 510, 528 (2001) (Kennedy, J., concurring). In the Framers’ thinking, it was “particularly essential that the [House] should have an immediate dependence on, and an intimate sympathy with, the people,” and competitive elections were “unquestionably the only policy by which this dependence and sympathy can be effectually secured.” Federalist No. 52 (Madison). Those in power, Madison explained, were to “be kept in dependence on the people” as a matter of “republican liberty.” Federalist No. 37.
Notably, the People’s representation in the House was to serve one of the fundamental goals of our constitutional structure: The elimination of excessive faction. See Federalist No. 10 (Madison).
One overarching imperative is thus clear from both the Framers’ statements and the constitutional design they established: The role of the House in our constitutional order—to directly reflect the will of the People— depends on the electoral relationship between Members and the People. The Framers were deeply concerned with how the House would be elected precisely because the People’s ability to choose their representatives was an essential guarantee of both popular sovereignty and liberty.
The Framers’ concerns resonate across the centuries—and amici feel them every day as part of our lived experience. As Members of the House, amici are often the most accessible and familiar links between the people in the cities and towns of our particular corners of the country and their national government in Washington, DC.

31
B. Extreme Gerrymandering Distorts The People’s Voice In Contravention Of The Framers’ Vision
Extreme partisan gerrymandering threatens the Framers’ vision of a directly accountable national legislature.
The Framers envisioned frequent, broad-based, competitive House elections that would create a relationship of “dependence” and tie House Members closely to the People. The entire point of extreme gerrymandering is to undercut that tie in order to achieve a narrow partisan political result. See, e.g., Kirkpatrick v. Preisler, 394 U.S. 526, 537-538 (1969) (Fortas, J., concurring) (describing “gerrymandering” as “the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes”).
In fact, the Framers themselves repeatedly expressed concern that, through the manipulation of electoral districts, “the House of Representatives should not really represent the people,” thereby undermining the republican character of the nascent government. E.g., 4 Elliot’s Debates 303 (C. Pinckney); accord 3 Elliot’s Debates 367 (Madison) (warning that improper “unequal” apportionment could “deprive[]” the people of “the right of suffrage”). They knew that, without some external check, the rules of the political process could be manipulated.57 Their grave concern on this point makes sense in
57 Compare Greene, Judging Partisan Gerrymanders Under the Elections Clause, 114 Yale L.J. 1021, 1053-1054 (2005) (“[B]ecause gerrymanders involve the rigging of elections themselves, the regular political process is not entirely trustworthy in policing them”) with Federalist Nos. 56 & 57 (Madison) (discussing rotten borough and pocket borough representatives in Parliament as overcome by faction due to structural defects, and asserting that broad elections by the whole People would remedy such defects).

32
light of their overall project, for “‘the true principle of a republic is, that the people should choose whom they please to govern them.’” Powell v. McCormack, 395 U.S. 486, 540-541 (1969) (quoting 2 Elliot’s Debates 257 (Hamilton)). Extreme partisan gerrymandering undermines that fundamental principle.
This Court has similarly described extreme gerrymandering as incompatible with our form of government. Extreme gerrymandering turns the “true principle” of our Republic on its head, permitting politicians to choose the people whom they shall govern rather than the reverse. See AIRC, 135 S. Ct. at 2677 (noting “the core principle of republican government … that the voters should choose their representatives, not the other way around” (internal quotation marks omitted)) (quoting Berman, Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005)). Partisan gerrymanders “[are incompatible] with democratic principles.” AIRC, 135 S. Ct. at 2658 (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (plurality opinion) and citing id. at 316 (Kennedy, J., concurring in judgment)). They threaten the very notion of a representative government, in which, through the mechanism of broad-based popular elections, “legislatures ... should be bodies which are collectively responsive to the popular will.” Reynolds v. Sims, 377 U.S. 533, 565-566 (1964) (explaining that “the basic aim of legislative apportionment” should be “achieving ... fair and effective representation for all citizens”).
This is not to say that the districting process is always suspect, or that politics has no place in districting. Far from it. It is an inescapable fact that “the location and shape of districts” can determine “the political complexion of the area.” Gaffney v. Cummings, 412 U.S. 735, 753 (1973). Some variation in the shape of districts is natural, so long as those variations “are based

33
on legitimate considerations incident to the effectuation of a rational state policy,” such as keeping towns, counties, or cohesive political communities together. E.g., Reynolds, 377 U.S. at 579. The political process can and often does produce districts based on legitimate considerations, and this, too, is as it should be.
But true representation, consistent with the special role of the House as the voice of the People, is diminished when district lines are designed to insulate Representatives from the People and the communities they serve and instead to achieve a preordained, partisan result. Cf. California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (“Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.”). The core principles of republican selfgovernment, embodied in Article I, require the maintenance of a “direct link” between the People and their representatives in the House, Thornton, 514 U.S. at 803. Extreme partisan gerrymandering increasingly corrodes that link.
* * *
Amici do not favor frequent or extensive judicial intervention in the political process; indeed, amici appreciate this Court’s historical reluctance to enter the “political thicket” surrounding redistricting. Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion); see also Vieth, 541 U.S. 267 (2004) (plurality opinion). But in light of the constitutional principles that animate our role as Members of the House, and the grave threat that hyper-partisanship poses to our Republic, we need constitutional ground rules that ensure basic standards

34

of fairness and broad-based competition, without subjecting the districting process to free-form judicial second-guessing.58
What our political system needs now—what the problem of extreme partisan gerrymandering needs now—are basic boundaries, so that our parties may begin to correct course and mend the broken parts of our political process. This Court should give the Nation that chance.

CONCLUSION The judgment of the panel should be affirmed.

Respectfully submitted.

JASON D. HIRSCH STEPHANIE SIMON WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich St. New York, NY 10007
CHRISTOPHER D. DODGE WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State St. Boston, MA 02109

SETH P. WAXMAN Counsel of Record
JONATHAN CEDARBAUM ARI J. SAVITZKY DAVID STOOPLER WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 seth.waxman@wilmerhale.com

SEPTEMBER 2017

58 To that end, while all amici agree that some constitutional boundaries are essential to police the growing negative effects of partisan gerrymandering, amici take no position on the effectiveness of the different methods, such as the efficiency gap, that can be used for enforcing such boundaries.

 
 No. 16-1161
In the Supreme Court of the United States
________________ BEVERLY R. GILL, ET AL., APPELLANTS
v. WILLIAM WHITFORD, ET AL., APPELLEES
_______________ ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ________________
BRIEF OF AMICUS CURIAE DAVID BOYLE IN SUPPORT OF APPELLEES _________________
David Boyle Counsel of Record
P.O. Box 15143 Long Beach, CA 90815 dbo@boyleslaw.org (734) 904-6132

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES…..………………………iii
AMICUS CURIAE STATEMENT OF INTEREST…1
SUMMARY OF ARGUMENT.....................................2
ARGUMENT……………………………………………...3
I. THE U.S. CONSTITUTIONAL AMENDMENTS ON ELECTIONS OFFER THE COURT MORE POWER TO FIND PARTISAN GERRYMANDERING JUSTICIABLE AND REFORMABLE………..3
II. ON THE ONE HAND: SOME CONSTITUTIONAL AMENDMENTS MAY SEEM TO FAVOR ALLOWING LEGISLATURES WIDE CONTROL OVER ELECTION DISTRICTING, EVEN GERRYMANDERING….……………………….4
III. HOWEVER, A GREATER NUMBER OF CONSTITUTIONAL AMENDMENTS MAY FAVOR ALLOWING INDIVIDUAL VOTERS DIGNITY, AND IMMUNITY FROM GERRYMANDERING.………………………….6
IV. REPUBLICANS, OR OTHER POTENTIAL ELECTORAL MINORITIES, MAY BE “COOKING THEIR OWN GOOSE” DOWN THE LINE, BY OPPOSING JUSTICIABILITY OR REFORMS FOR

ii
PARTISAN GERRYMANDERING….…....…..9
V. “MAKE AMERICA NONPARTISAN AGAIN”; OR, GERRYMANDERING IS UNETHICAL BULLYING AND DESERVES CURTAILMENT……………………………….10
(ANTECONCLUSION)………………………….…..12
CONCLUSION……………………………………….13

iii
TABLE OF AUTHORITIES
CASES Davis v. Bandemer, 478 U.S. 109 (1986)……………12 Trump v. IRAP, 16-1436, 857 F.3d 554 (4th Cir. 2017), cert. granted (U.S. June 26, 2017)……..1 & n.2 Vieth v. Jubelirer, 541 U.S. 267 (2004)……………...12
CONSTITUTION U.S. Bill of Rights (1791)…………………………….4, 8 U.S. Const. as a whole…………………………….2, 4, 9 U.S. Const. amend. I…………………………………….4 U.S. Const. amend. V...………………………………….4 U.S. Const. amend. IX.………………………………….4 U.S. Const. amend. X...………………………………….4 U.S. Const. amend. XII………………………………….5 U.S. Const. amend. XIV……………………………5-6, 7 U.S. Const. amend. XV……………………………….7, 8 U.S. Const. amend. XVII……………….……………….7

iv
U.S. Const. amend. XVIII………………...…………….4 U.S. Const. amend. XIX………………..…………….7, 8 U.S. Const. amend. XX………………………………….6 U.S. Const. amend. XXI……..………………………….4 U.S. Const. amend. XXII………………….…………….6 U.S. Const. amend. XXIII……………...……………6, 7 U.S. Const. amend. XXIV…………...………………..7-8 U.S. Const. amend. XXV………………………………..6 U.S. Const. amend. XXVI……………………………….8 U.S. Const. amend. XXVII……………………...….8, 12
RULES S. Ct. R. 37………………………………..………….1 n.1
OTHER AUTHORITIES (The Internet link below was last visited September 5, 2017.) Genesis 1:26……………………………………………..11

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Franklin D. Roosevelt, Oglethorpe U. Commencement Address (May 22, 1932)…………...11
Robert Penn Warren, All the King’s Men (1946)………………………………………….12-13 & n.3
George Washington, Farewell Address (1796)……..10
Wikiquote, All the King’s Men, https://en.wikiquote. org/wiki/All_the_King%27s_Men (as of 13:56 GMT, Feb. 13, 2017)………………………………………13 n.3

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AMICUS CURIAE STATEMENT OF INTEREST
The present amicus curiae, David Boyle (hereinafter, “Amicus”),1 is a voter who has no desire to be gerrymandered into oblivion. Especially since he will soon be writing the Court about other “equal protection” issues, e.g., in Trump v. IRAP,2 he writes here to recommend the justiciability of partisangerrymandering claims, and to recommend the Court approving of the “efficiency gap” method or other useful instruments to prevent unfair partisan gerrymandering.
The present time is one during which the whole Enlightenment project is in some danger. Francis Fukuyama’s legendary “end of history” has not happened, following the end of the Cold War in its Eastern European theater; rather, all kinds of bigotries are on the rise, as opposed to real freedom and democracy and individual worth and rights. Ethno-nationalism—including white nationalism—, religious or pseudo-religious terrorism, kleptocracy, authoritarian government, unreasoning hatred of immigrants and refugees: these all seem to be on the upswing, worldwide.
That being so, it is especially important that the United States, as a longtime beacon, a worldwide symbol, of fairness and rule by the People, have elections where the People’s vote actually means something, rather than being “cracked”, “stacked”,
1 No party or its counsel wrote or helped write this brief, or gave money meant to fund its writing or submission, see S. Ct. R. 37. Blanket permission to write briefs is filed with the Court. 2 16-1436, 857 F.3d 554 (4th Cir. 2017), cert. granted (U.S. June 26, 2017).

2
“packed”, or “hacked” into a mere parody of what it should be. People, including Americans, should be equal, autonomous, and free, instead of being unequal, manipulated, or enslaved.
So Amicus writes here, “casting his vote” for a fair electoral system with as little partisan, or other invidious, gerrymandering as reasonably possible—if the Court wills it. And the various amendments to our national Constitution show that history is moving in the direction of more fairness, so the Court may wish to move similarly.
SUMMARY OF ARGUMENT
One source of legitimacy for the Court to find partisan gerrymandering justiciable and reformworthy, is the U.S. constitutional amendments dealing with elections and the role of Congress.
On the one hand, there are admittedly a number of constitutional amendments, or elements of the Constitution, which may not seem greatly to support the justiciability or reform of partisan gerrymandering.
But on the other hand, there is an even larger number of constitutional amendments which do seem to support the justiciability or reform of partisan gerrymandering, because those amendments support voting rights in general, or support limiting the role of Congress or state legislatures in our elections.
Republicans may cavil at the end of excessive partisan gerrymandering; but it may be their own

3
skins that get saved by the contemplated reforms, since changing demographics and other phenomena may eventually favor Democrats, who might gerrymander Republicans into impotence unless reforms prevent that from happening.
Human dignity itself weighs in favor of restricting partisan gerrymandering. Why should governments be allowed to make your vote be inferior to somebody else’s, without a very serious non-partisan reason?
It is difficult for America to be great if its legislatures act like enemies towards their own employers, the People, and the People’s right to have their votes count equally. Keeping America great may mean, then, keeping districting as nonpartisan as reasonably possible—and with the judiciary’s help, as needed.
Finally, just as the Court itself gives each Member an equal vote, the Court should ensure American citizens get an equal vote too, instead of an unfairly gerrymandered one.
ARGUMENT
I. THE U.S. CONSTITUTIONAL AMENDMENTS ON ELECTIONS OFFER THE COURT MORE POWER TO FIND PARTISAN GERRYMANDERING JUSTICIABLE AND REFORMABLE
Skeptics, or the thoughtless, may wonder why the Court or other judiciary elements should interfere with another branch of government, the legislature, regarding election districting issues. Can’t the

4
legislatures police themselves? the argument might go. Is the sacred “separation of powers” being violated if partisan gerrymandering is found justiciable? The Court could use some extra justification, then, if it wants to regulate how legislatures draw voting districts, and seem to have legitimacy in doing so.
Fortunately, one such source of power comes from the highest source of written law in America. The implications, sometimes poetically known as “emanations” or “penumbras”, of Constitutional provisions, including amendments, have historically allowed the Court to make decisions based on privacy or other issues. As we shall see, of the twenty-seven amendments to the Constitution, a great number are helpful to the cause of finding partisan gerrymandering justiciable.
II. ON THE ONE HAND: SOME CONSTITUTIONAL AMENDMENTS MAY SEEM TO FAVOR ALLOWING LEGISLATURES
WIDE CONTROL OVER ELECTION DISTRICTING, EVEN GERRYMANDERING
Of the seventeen constitutional amendments following the first ten that are in the Bill of Rights (of which the First, Fifth, Ninth, and Tenth Amendments all arguably support individual voters’ rights), an astounding eleven are about electoral issues in some way, including issues related to the status of Presidents and Vice Presidents. (If you remove from the number of amendments the two about Prohibition, the Eighteenth (1920) and Twenty-First (1933), that “cancel each other out”, then 11 out of 15 post-Bill-of-Rights amendments are

5
about elections—almost three-quarters.) So the body of amendments has much to say about elections in this country.
However, speaking as a “devil’s advocate”, Amicus notes that not all of those amendments support privileging individual voters over legislatures. For example, the Twelfth Amendment (1804), see id., continues the anti-democratic institution of the Electoral College. (It is fascinating that no American voters outside of Congress may have ever directly voted for President or VicePresident, under the Constitution; all they ever voted for is how their particular State would vote on that issue in the Electoral College. So much for democracy.)
Too, the Twelfth Amendment shrinks the value of the popular vote even further, by making Congress’ vote among the top three electoral-vote getters, assign only one vote to each State. Id. § 3 cl. 2. Wyoming and California would each have one vote, despite their huge disparity in population. This bizarre, quasi-feudal arrangement does not seem to support the rights or value of the individual voter very much.
Then again, that was in 1804, over two centuries ago. Various other amendments, or parts of them, are more of a “wash”, in that they may not go very much towards one pole or the other; or if they go towards the pole of privileging legislatures, they may not go too far.
For one, the Fourteenth Amendment (1868) addresses voter (dis)enfranchisement, but largely in

6
its language about former Confederates’ right to vote, not a very relevant situation today. Id. §§ 2, 3. And “Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”, arguably puts the Amendment’s various issues more under the control of Congress rather than the judiciary.
The Twentieth Amendment (1933) gives Congress much say about events such as the death of a person chosen for President or Vice President, and who would replace that person. Id. § 3 cl. 2, § 4. And the Twenty-Second Amendment (1951) limits the rights of voters, by forbidding them from voting for a President’s having more than two terms. Id. § 1 cl. 1.
Finally, the Twenty-Third (1961) and TwentyFifth (1967) Amendments allow, respectively: Congress having authority over elections in the District of Columbia (§ 1 cl.1, § 2); and Congress being allowed to approve a replacement for an absent Vice President, and also to partially determine the ways some high officers may have authority to remove the President, if he or she seems unable to function (§§ 2, 4). Again, there may seemingly be little here that diminishes the role of Congress, or supports judicial review of partisan gerrymandering.
III. HOWEVER, A GREATER NUMBER OF CONSTITUTIONAL AMENDMENTS MAY FAVOR ALLOWING INDIVIDUAL VOTERS
DIGNITY, AND IMMUNITY FROM GERRYMANDERING

7
But when we look at other amendments besides the ones mentioned—or different portions of amendments already mentioned—, an alternative picture swims into order. Section 1, Clause 2 of the Fourteenth Amendment, notably, protects people’s due-process and equal-protection rights, and their privileges and immunities, not to mention “liberty”, id., presumably including the right to vote and have one’s vote count seriously.
And the show really starts, so to speak, with the Fifteenth Amendment (1870), defending rights to vote regardless of race, color, or slave status, id. This prevents “gerrymandering” minorities out of their voting rights.
The Seventeenth Amendment (1913) takes away power from state legislatures to elect Senators, and gives it to the People, see id. § 1 cl. 1. Here is a clear rebuff to the idea that legislatures should be omnipotent vis-à-vis election issues.
The Nineteenth Amendment (1920), see id., nobly echoing the Fifteenth, disabled sex as a restraint on Americans voting.
The Twenty-Third Amendment not only speaks about Congress’ control; rather it is also a broadening of the franchise, to people in the District of Columbia, id. § 1 cl. 2. So the Amendment follows, to that extent, in the great forward line of the Fifteenth and Nineteenth Amendments, giving more Americans the dignity of a vote.
The Twenty-Fourth Amendment (1964), around the time of the Civil Rights Movement, prevented

8
poll taxes, with their race- and class-discriminatory ugliness, from restricting the franchise, see id. Thus, legislatures which contrived poll taxes to strip individual voting rights, were rightfully gelded by the Amendment.
The Twenty-Sixth Amendment (1971) allowed adults, people of 18 or older who could be drafted to go die for their country, to be enfranchised to vote, id., echoing the great pro-democratizing story of the Fifteenth, Nineteenth, Twenty-Fourth, and other Amendments.
Finally, there is the Twenty-Seventh Amendment (1992). While that amendment is not about “election law” per se, it does mention elections, in the context of pay for Congress. And since we can safely assume that Congress is probably not going to lower its own pay, what the Amendment effectively means is that Congress must wait a term before receiving a raise that it gives itself, see id.
This reminds us that Congress is meant not to serve itself, but to serve others, the People. Selfishness is constrained, at least in part. And this parting lesson from the Amendments chimes nicely with the idea that Congress must be policed and constrained, even if it doesn’t like it, to humbly serve the People, instead of, say, brutally gerrymandering them to serve Congresspersons’ selfish interests rather than the interests and dignities of the People.
The post-Bill-of-Rights amendments, or sections of amendments favoring enfranchisement of the People not only outnumber those that somewhat disfavor enfranchisement, or are relatively neutral

9
on the topic (by 8 to 6, from counting the amendments mentioned supra), but are also somewhat more weighted towards the more recent years of the Constitution, whereas those which are neutral, or favor the power of Congress more, are somewhat more weighted towards the past, even the far past (e.g., 1804). Thus, the movement of our supreme law and American history is strongly in favor of valuing the individual voter’s dignity: this should empower and encourage the Court to find partisan gerrymandering justiciable and reformable. Anyone who argues otherwise may be flying in the face of what our progressing Constitution implies.
IV. REPUBLICANS, OR OTHER POTENTIAL ELECTORAL MINORITIES, MAY BE
“COOKING THEIR OWN GOOSE” DOWN THE LINE, BY OPPOSING JUSTICIABILITY OR REFORMS FOR PARTISAN GERRYMANDERING
Given the trend for growing power and political influence of women, minorities, sexual minorities, and other traditionally underrepresented groups, the long-term outlook for the Republican Party, at least as we know it, may not be very bright. If not for the Electoral College, in fact, Al Gore and Hillary Clinton would have been elected President, not George W. Bush and Donald Trump.
Thus, since Democrats are not necessarily more virtuous than Republicans (and the other way around), the near future could involve merciless partisan gerrymandering against Republicans. This would be unfair. So, ironically, Republicans might want to support justiciability of partisan-

10
gerrymandering claims, since “the life they save may be their own”, at some point.
The Court would well serve all Americans, regardless of political party, by offering a cure, if an imperfect one, to the disease of partisan gerrymandering.
V. “MAKE AMERICA NONPARTISAN AGAIN”; OR, GERRYMANDERING IS UNETHICAL BULLYING AND DESERVES CURTAILMENT
George Washington, in his 1796 farewell address, offered a parting warning against political parties and factionalism, cautioning that
[t[he alternate domination of one faction over another, sharpened by the spirit of revenge . . . . which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. . . . the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.
Id. Quite so. And one of the worst manifestations of party spirit is bullying of another party, including the form of bullying called gerrymandering.
The “Game of Votes” can often be vigorous, but that does not mean it should be brutal or unfair. To analogize it to a contest of height and physical might: what if there were a huge warrior, call him the Mountainous Man, or the Gross Giant; and also another person, a very little man, call him “Tiny

11
Lancaster”, Would it be fair to give Lancaster less of a vote in the land’s elections, due to his small size and its tendency to make him weaker than the giant?
Similarly, when a party gerrymanders—or at least when it does so without relying on some possibly-legitimate non-partisan reason such as natural geographical features, etc.—, it does not use right but the temporary might it has by means of being in the majority. The Court should help slay the dragon of gerrymandering, lest might conquer right. (True, party affiliation may not be as immutable a characteristic as height. Still, to be discriminated against by the State, on the basis of party, is still a foul thing.)
And it is not only the secular Enlightenment, mentioned supra at 1, which is at issue here. What we may call the “Abrahamic Enlightenment” also resounds, e.g., “Then God said, ‘Let us make man in our image, after our likeness’”, Genesis 1:26 (English Standard Version). If humans have divinely-granted dignity, needlessly gerrymandering them into less dignity is abominable.
And while the “efficiency gap” or other methods may not be perfect: even if they need some tweaking by the Court, they may well be worth trying. Gerrymandering has gone on too much for too long. As Franklin D. Roosevelt said, “[T]he country demands bold, persistent experimentation. It is common sense to take a method and try it: If it fails, admit it frankly and try another. But above all, try something.” Oglethorpe U. Commencement Address (May 22, 1932).

12
* * *
“Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.” Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (Scalia, J.). With due respect, the late and frequently great Justice Antonin Scalia may have been wrong in part. The Legislature is supposed to provide fair and rational laws which serve the People, who pay the salaries of the various National or State Legislatures, cf. U.S. Const. amend. XXVII (restricting pay of Congress). If the Legislature fails to do so, the Judiciary may have to step in—as in ending partisan gerrymandering, to the extent reasonably possible.
After all, “[I]t is not clear that political gerrymandering is a self-limiting enterprise”, Davis v. Bandemer, 478 U.S. 109, 126 (1986) (White. J.). Somewhat as with antitrust, where someone must police corporations if they do not police themselves, someone must police legislatures if they do not show restraint.
Imagine, as a last thought experiment, the Court itself being gerrymandered. What if, as a reductio ad absurdum, the female Members of the Court were so “districted” so that they could have a maximum of two votes, not three? Or how about districting by State of origin? so that born New Yorkers could have a maximum of two votes on the Court. Would the Court’s Members enjoy that?
One suspects not. Then, as Jack Burden said as the very last words of Robert Penn Warren’s political-corruption epic All the King’s Men (1946),

13

one must “go into the convulsion of the world, out of history into history and the awful responsibility of Time.”3 It seems like time for the Court responsibly to take advantage of the modern statistical methods and election research that Appellees have convincingly put forward, and go help the rest of the Nation have a voting regime at least as fair as that the Court has for itself.
CONCLUSION

The Court should find partisan gerrymandering justiciable, and also uphold the court below, insofar as reasonably possible, and with any needed improvements; and Amicus humbly thanks the Court for its time and consideration.

September 5, 2017

Respectfully submitted,

David Boyle Counsel of Record
P.O. Box 15143 Long Beach, CA 90815 dbo@boyleslaw.org (734) 904-6132

3 Id., ch. 10, available at Wikiquote, All the King’s Men, https://en.wikiquote.org/wiki/All_the_King%27s_Men (as of 13:56 GMT, Feb. 13, 2017).

 
 No. 16-1161

IN THE
Supreme Court of the United States
>>

>>

BEVERLY R. GILL, et al., v.

Appellants,

WILLIAM WHITFORD, et al.,

Appellees.

On Appeal from the United States District Court for the Western District of Wisconsin

BRIEF OF ROBIN BEST, SHAWN J. DONAHUE, JONATHAN KRASNO, DANIEL B. MAGLEBY AND MICHAEL D. MCDONALD AS AMICI CURIAE IN SUPPORT OF APPELLEES

Steven J. Hyman Alan E. Sash Jacqueline C. Gerrald
Counsel of Record Tracy A. Burnett
Of Counsel MCLAUGHLIN & STERN, LLP Counsel for Amici Curiae 260 Madison Avenue New York, New York 10016 212-448-1100 shyman@mclaughlinstern.com asash@mclaughlinstern.com jgerrald@mclaughlinstern.com

i
TABLE OF CONTENTS Page
Table of Authorities……………………………………...ii INTERESTS OF AMICI CURIAE…………………......1 INTRODUCTION………………………………………..3 SUMMARY OF ARGUMENT…………………………..4 ARGUMENT……………………………………………...7
I. Measuring Gerrymanders…………………..7 II. Distinguishing Between Residential
Geography and the Actions of the Legislature…………………………………..12 III. There is Empirical Evidence of Gerrymandering…………………………….16 CONCLUSION………………………………………….18

ii
TABLE OF AUTHORITIES
Page(s)
Cases
Vieth v. Jubelirer, 541 U.S. 267, 299 (2004)……………………..….3, 18
Other Authorities
Altman, Micah and McDonald, Michael P., BARD: Better Automated Redistricting, J. Statistical Software 42:2-36 (2011)…………....13
Backstrom, Charles, Robbins, Leonard, and Eller, Scott, Issues in Gerrymandering: An Exploratory Measure of Partisan Gerrymandering Applied to Minnesota, Minn. L. Rev. 62: 1121-1159 (1978)………….………………………….8
Best, Robin, Donahue, Shawn J., Krasno, Jonathan, Magleby, Daniel B., and McDonald, Michael D., Considering the Prospects for Establishing a Packing Gerrymandering Standard, Election L. J., (forthcoming 2018)………………...16
Chen, Jowei and Rodden, Jonathan, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, Q. J. Pol Sci. 8: 239-269 (2013)…………………………………..12, 13

iii
Cho, Wendy Tam and Liu, Yan Y., Toward a Talismanic Redistricting Tool: A Fully Balanced Computational Method for Identifying Extreme Redistricting Plans, Election L. J. 15(4): 351-366 (2016)………...……………………….........13
Cirincione, Carmen, Darling, Thomas A. and O’Rourke, Timothy, Assessing South Carolina’s 1990 Congressional Districting, Pol. Geography 19: 189-211 (2000)…..………………...13
Daley, David, Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy, New York: Liveright Publishing (2016)………………..……...17
Engstrom, Richard L. and Wildgen, John K. , Pruning Thorns from the Thicket: An Empirical Test of the Existence of Racial Gerrymandering, Legis. Stud. Q. 2:465-79 (1977)…………………...13
Erikson, Robert S., Malapportionment, Gerrymandering, and Party Fortunes in Congressional Elections, Am. Pol. Sci. Rev. 66: 1234-45, *1237 (1972)…………......9-10, 12
Finkel, Steven E., Reciprocal Effects of Participation and Political Efficacy: A Panel Study, Am. J. Pol. Sci. 29:891-913 (1985)……….......................................17
Gul, Faruk and Pesendorfer, Wolfgang, Strategic Redistricting, Am. Econ. Rev. 100:1616-41 (2010)…..…………………………7

iv
Key, V.O., Southern Politics in State and Nation. Knoxville: University of Tennessee Press (1949)……………………………………………8
Nagel, Stuart, Simplified Bipartisan Computer Redistricting, Stanford L. Rev. 17: 863-9 (1965)……………………………………...13
Owen, Guillermo and Grofman, Bernard, Optimal Partisan Gerrymandering, Pol. Geography Q. 7:5-22 (1988)……………………7

- 1 -
INTERESTS OF CURIAE1
Amici curiae are professors of Political Science at Binghamton University who specialize in American and Comparative Politics and a PhD Student in Political Science at Binghamton University who has focused his studies on American Politics.
Amicus Robin Best is an Associate Professor of Political Science, whose publications include Considering the Prospects for Establishing a Packing Gerrymandering Standard, Election Law Journal forthcoming; Detecting Florida’s Gerrymander: A Lesson for Law and Social Science, Social Science Quarterly, forthcoming; and Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases. Election Law Journal 14(4): 312-330 (McDonald, Michael D. and Best, Robin E. 2015.)
Amicus Shawn J. Donahue is a PhD Student in Political Science at Binghamton University and a JD from the University of Indiana, Bloomington, whose publications include Considering the Prospects for Establishing a Packing Gerrymandering Standard, Election Law Journal forthcoming.
1 No counsel for a party authored the brief in whole or in part. No counsel, party, or any other person or entity, other than the amici curiae and their counsel, made a monetary contribution to the preparation or submission of the brief. All parties have consented in writing to the filing of timely amicus curiae briefs in support of either party or neither party through letters on file with the Clerk.

- 2 -
Amicus Jonathan Krasno is an Associate Professor of Political Science, whose publications include Considering the Prospects for Establishing a Packing Gerrymandering Standard, Election Law Journal forthcoming; Detecting Florida’s Gerrymander: A Lesson for Law and Social Science, Social Science Quarterly, forthcoming; and Do Televised Presidential Ads Increase Voter Turnout? Evidence from a Natural Experiment, Journal of Politics 70: 245-61 (Krasno, Jonathan and Green, Donald P. 2008.)
Amicus Daniel B. Magleby is an Assistant Professor of Political Science, whose publications include Establishing a Packing Gerrymandering Standard, Election Law Journal forthcoming; Detecting Florida’s Gerrymander: A Lesson for Law and Social Science, Social Science Quarterly, forthcoming; and Popularity, Polarization, and Political Budget Cycles, Public Choice 159:457-467 (Hanusch, Marek and Magleby, Daniel B. 2014.)
Amicus Michael D. McDonald is a Professor of Political Science, whose publications include Establishing a Packing Gerrymandering Standard, Election Law Journal forthcoming; Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases. Election Law Journal 14(4): 312-330 (McDonald, Michael D. and Best, Robin E. 2015.); Detecting Gerrymanders, Bernard Grofman (ed.), Toward Fair and Effective Representation: Political Gerrymandering and the Courts, New York: Agathon (McDonald, Michael D. and Engstrom, Richard L. 1989.)

- 3 -
INTRODUCTION
Supreme Court precedent holds that political considerations will likely play an important and proper role in the drawing of district boundaries. Vieth v. Jubelirer, 541 U.S. 267, 299 (2004). The fundamental issue, however, is finding the proper methodology to draw the line between “good politics and bad politics.” Id. As Justice Kennedy described in Vieth, supra, “full analytical satisfaction” is required to do so. Id. at 312. Full analytical satisfaction is now available. One such method in use for more than a century is comparing the partisan median district (the middle) to the partisan mean district (the average). This comparison offers statistical confirmation of the lower court’s decision that Wisconsin’s State Assembly boundaries are gerrymandered to advantage Republican voters at the expense of Democrats. Furthermore, modern computers and access to information unearthed a new application for this analytical approach. Amici used modern computer software to produce 10,000 alternative Assembly maps with 99 equally populated and contiguous districts. These alternative maps were generated only with reference to residential geography and are partisan blind; electoral data were added later. These maps thus reflect what this Court has referred to as the “natural” gerrymander. Amici analyzed the median and mean in these 10,000 alternatives and the enacted Wisconsin map which is the subject of Act 43. Their findings show that the Assembly boundaries enacted in Wisconsin substantially disadvantage Democrats beyond the effects of residential geography. This confirmed what the lower courts found – that gerrymandering occurred in Wisconsin. Amici’s method of analysis

- 4 -
does not rely on shapes, intent, or subjective notions of fairness in the political process. It simply relied on data from elections immediately before and after the 2011 redistricting plus 10,000 computer simulations. Ironically, the same computers used to gerrymander detect gerrymandering.
SUMMARY OF ARGUMENT
Amici, a group of quantitatively-oriented political scientists specializing in American and Comparative electoral systems, have worked together and separately on a variety gerrymandering projects including an extensive analysis of Wisconsin’s Assembly districts. This brief reports the key findings from that analysis, which uses a simple diagnostic tool long available to detect gerrymanders: a comparison of district-level median and mean. A notable feature of that analysis is a comparison set of 10,000 alternative Wisconsin State Assembly maps created by computer without reference to any political variables or history. The districts in these maps are contiguous and equally populated, as is required under Wisconsin law, and they provide a baseline with which to distinguish between the effect of residential geography and the Legislature’s actions. The results show that Wisconsin’s Assembly map is a substantial gerrymander that dilutes the strength of Democratic voters.
Oddly shaped or non-compact districts may often be a byproduct of gerrymandering but, by themselves, shapes and/or compactness can neither prove nor disprove the existence of a gerrymander. As a result, the State’s claim that Wisconsin’s Assembly districts cannot be gerrymandered because the

- 5 -
districts are relatively compact or they keep a relatively large number of jurisdictions whole is essentially irrelevant.
The central action element in gerrymandering is diluting the opposition’s voting strength. It is this dilution which produces the unfair advantage enjoyed by the other party and which may result in oddly shaped districts. In the case of partisan gerrymandering, amici would argue – along with the vast majority of fellow political scientists – that the most fundamental goal of major political parties is to win control of government. Applied to legislative elections, a party’s first goal is to carry a majority of seats.
Carrying a majority of seats is generally simple when the party that controls mapping also consistently wins a majority of votes. But what if its majority is tenuous? In that case, gerrymandering can make it far more likely that a redistricting party will carry a majority of seats with less than a majority of votes. This is exactly what has been alleged in Wisconsin. Professor Keith Gaddie, a consultant hired by the Legislature to assist in redistricting, testified in this case that mapmakers calculated that Democrats would have to win at least 54% of the statewide vote to win 50% + 1 of Wisconsin’s Assembly seats. Judging from the results of actual elections, his calculation was remarkably accurate:
 In 2010 the Democratic Secretary of State candidate, Doug La Follette, received 51.6 percent of the two-party vote but carried just 43 of the State’s 99 districts.

- 6 -
 In the same election year, the Republican gubernatorial candidate, Scott Walker, received 52.3 percent of the two-party vote, seven-tenths of a percentage point higher than La Follette, and carried 65 of 99 districts. The Republican candidate for U.S. Senate, Ron Johnson, did slightly worse than Walker with 51.9 percent of the two-party vote, yet carried 66 of 99 districts.
 In 2012 the Democratic presidential candidate, Barack Obama, received 53.5 percent of the two-party vote, and carried just 43 of 99 districts.
 The 2012 U.S. Senate election saw Democrat, Tammy Baldwin, win 51.4 percent of the vote (52.9 two-party) and carry 44 of 99 districts.
 In 2014, Republican candidates for Governor, Attorney General, and Treasurer won, respectively, 52.8, 53.1, and 52.1 percent of the major two-party vote. All three carried a large majority of Assembly districts (Governor 64, Attorney General 64, and Treasurer 62.) By comparison, the Democratic candidate for Secretary of State that year won 52 percent of the major two-party vote but carried just 43 districts.
These results are red flags that Wisconsin’s political boundaries treat Democrat and Republican votes differently. There is a clear asymmetry that is observed. Statewide assembly results which nearly mirror one another for Democrats and Republicans, translate into fewer Assembly seats for the

- 7 -
Democrats. While each ballot counts as precisely one vote wherever it is cast, the way these votes are aggregated within Assembly districts created by Act 43 appears to disadvantage Democrats’ ability to win a majority of Assembly seats. In short, there is good reason to suspect that Act 43 gives an unfair advantage to Republicans in Wisconsin by diluting the voting strength of Wisconsin’s Democrats.
Finally, gerrymanders typically include some combination of “packing” where the disadvantaged party’s voters are concentrated in as few districts as possible, and “cracking” where the disadvantaged party’s voters are split so they fall short of a majority in as many districts as possible. This insight about primacy of packing, particularly in politically competitive states like Wisconsin, is widely recognized within political science and economics. See, Owen, Guillermo and Grofman, Bernard, Optimal Partisan Gerrymandering, Pol. Geography Q. 7:5-22 (1988); Gul, Faruk and Pesendorfer, Wolfgang, Strategic Redistricting, Am. Econ. Rev. 100:1616-41 (2010). Cracking would not mitigate the dilution of voting strength produced by packing. Accordingly, the analysis here focuses on packing.
ARGUMENT
I. Measuring Gerrymanders
Professor Gaddie’s testimony in the lower court that Democrats would need at least 54% of statewide vote to carry a majority of Assembly districts came with a careful description of the extensive data analysis he performed to arrive at that estimate. Amici offer no commentary on that methodology.

- 8 -
Rather amici assert that there is a simple and accessible way to estimate the partisan bias created by differential packing by comparing the district-level partisan median and mean. This calculation is easy to perform and directly applicable to a claim of vote dilution.
Any set of legislative districts constitute a distribution. In partisan gerrymandering, the characteristic of interest in that distribution is the partisan voting or performance of each district. The easiest and most reliable way to observe these patterns is with statewide elections such as contests for President, U.S. Senator or Governor. Statewide elections are the basic ingredient in ecological inference studies produced by scholars and in scoring of district partisanship such as the well-known “partisan voting index” (i.e. PVI) compiled by the Cook Political Report. See, Key, V.O., Southern Politics in State and Nation. Knoxville: University of Tennessee Press (1949); Backstrom, Charles, Robbins, Leonard, and Eller, Scott, Issues in Gerrymandering: An Exploratory Measure of Partisan Gerrymandering Applied to Minnesota, Minn. L. Rev. 62: 1121-1159 (1978). According to the transcripts below, the people most closely involved in drawing Wisconsin’s Assembly districts paid close attention to voting patterns in statewide elections.
The median district is the one in the middle of the distribution, the 50th most Republican or Democratic district among the 99 Assembly districts in Wisconsin. The mean is the average Republican or Democratic percentage across the 99 Assembly districts in Wisconsin. The mean represents a party’s performance in an election while the median district

- 9 -
is the one that a party must carry in order to win a bare majority of Assembly seats. Thus, the median district can be understood as the target of would-be gerrymanders whether they conceive of it in these terms or not. Their maps adjust the partisan balance of the median to be more favorable to their party as possible. This occurs through packing which essentially concedes a minority of districts to the disadvantaged party, thus increasing the advantaged party’s vote share in the remaining districts in which the median is located.
The significance of the median and the mean has long been recognized by scholars. Sir Francis Edgeworth, an Irish-Anglo mathematician, first suggested it in an essay about statistics in 1898. Edgeworth’s main interest was exploring the properties of the normal distribution; he used political districting to illustrate how the distribution can be skewed to benefit a party. Robert Erikson, an American political scientist, invoked these characteristics of a distribution in his description of a gerrymander: “A good Republican gerrymander, for example, would have a majority of districts that are minimally safe for Republicans and a minority that are very safe for Democrats. In short, the distribution of the vote across districts would be heavily skewed in the direction of the disadvantaged Democratic party so that the mean district vote percentage for the Democratic party is greater than its median vote percentage. … On the other hand, the perfect absence of a gerrymander would occur if the distribution of the vote across districts is symmetrical, such as with a normal distribution.” See, Erikson, Robert S., Malapportionment, Gerrymandering, and Party Fortunes in Congressional Elections, Am. Pol. Sci.

- 10 -
Rev. 66: 1234-45, *1237 (1972) (Emphasis in the original).
Wisconsin’s Legislative Technology Service Bureau has produced estimates of statewide election results within wards created in 2011 for elections conducted from 1992 to the present. Presumably, these data were relied upon by the State during the redistricting process in 2011. For our purposes, they make it simple to see each candidate’s performance under the current set of political boundaries. These results are presented in Table One, which provides summary information about the 13 statewide races, including the 2012 gubernatorial recall, conducted in the two election cycles immediately preceding and following 2011. The results exclude third parties and present the Democratic share of the two-party vote.2 The results range from an 11-point Democratic victory (in the 2008 presidential race) to a 12-point Democratic defeat (in the 2010 contest for Attorney General), with the remaining eleven races decided by 7 percentage points or less. Republicans won eight of these races and Democrats five. Despite this variation in outcomes and the span of eight years, geographic voting patterns were highly stable.3 This
2 Third-party candidates combined carried no more than 2.9% of the vote in any of these races and no group of third-party candidates carried more than 6.4% of the vote in total. Thirdparty candidates are essentially irrelevant to the machinations of partisan gerrymandering where elections are dominated by two major parties.
3 Amici assessed the stability of voting patterns by examining the ward-level correlations of Democratic voting across all 13 elections. The correlations were uniformly high: the lowest coefficient was .885 and the mean exceeded .93. In short, wards

- 11 -
lends support to the assumption that must underlie any effort to manipulate boundaries for partisan advantage: that the vast majority of voters are sufficiently partisan to predict their behavior in future elections.
This electoral history demonstrates that Wisconsin is a closely divided state where either party might reasonably expect to win control of its State Assembly. The last column in Table One shows, however, that Republican control of that body is practically assured in any environment short of a Democratic landslide due to the way Assembly districts have been drawn. In every single election, no matter which party wins or by how much, the median Assembly district is substantially less Democratic than is the district-level mean. That mean closely tracks Democrats’ percentage of the statewide vote. The median district, the one which can be manipulated by packing, remains significantly less Democratic throughout this series of elections.
The size of this difference ranges from 3.84 to 6.33, always favoring Republicans. Assuming a semiuniform vote swing (which is an accurate description of voting in Wisconsin), this means that a Democrat would need to win 50% of the vote plus the difference between median and mean (e.g., 50 + 3.84) in order to carry the median district needed for a bare majority in the Assembly. In other words, a Democrat must win approximately 54 to 56% of the statewide twoparty vote to carry the median district, while a Republican must win just 44 to 46% of the statewide
maintained their relative positions to one another in Democratic voting even as election results varied.

- 12 -

two-party vote. This, of course, is consistent with Professor Gaddie’s estimate in the lower court. More important, it shows that when it comes to controlling the State Assembly, the enacted Assembly map creates a situation where votes cast for Republicans simply matter more than do votes cast for Democrats.

II. Distinguishing

Between

Residential

Geography and the Actions of the Legislature

In Wisconsin and elsewhere, legislatures have argued that district boundaries simply reflect the way residents choose to live. It is well-known that most large cities contain large numbers of Democratic voters in higher concentrations than can usually be found in the most Republican neighborhoods. This has led to a phenomenon known as the “natural,” “accidental,” or “unintentional” gerrymander. See, Erikson, Robert S., Malapportionment, Gerrymandering, and Party Fortunes in Congressional Elections, Am. Pol. Sci. Rev. 66: 123445, *1237 (1972); Chen, Jowei and Rodden, Jonathan, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, Q. J. Pol Sci. 8: 239-269 (2013). In short, if many Democrats essentially pack themselves, is it the State’s fault that its Assembly map contains many highly packed Democratic districts and less packed Republican ones? Setting aside the normative question of whether the State or this Court should accept high levels of vote dilution produced by residential geography if much fairer arrangements are possible, amici turn to the question of distinguishing between impact of geography and the Legislature.

- 13 -
To do so, it is necessary to construct a neutral baseline, a set of alternative Assembly maps produced only with reference to the relevant aspects of residential geography, contiguity and population. Nobel Laureate William Vickrey suggested in 1961 that one day it would be possible to harness the power of computers to draw large numbers of partisan blind districting plans. This project advanced in modest ways in the 1960s and 1970s. See, Nagel, Stuart, Simplified Bipartisan Computer Redistricting, Stanford L. Rev. 17: 863-9 (1965); Engstrom, Richard L. and Wildgen, John K., Pruning Thorns from the Thicket: An Empirical Test of the Existence of Racial Gerrymandering, Legis. Stud. Q. 2:465-79 (1977). With advances in processing speed, Vickrey’s suggestion has moved to full-scale application. See, Chen, Jowei and Rodden, Jonathan, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, Q. J. Pol Sci. 8: 239-269 (2013); Cirincione, Carmen, Darling, Thomas A. and O’Rourke, Timothy, Assessing South Carolina’s 1990 Congressional Districting, Pol. Geography 19: 189-211 (2000); Altman, Micah and McDonald, Michael P., BARD: Better Automated Redistricting, J. Statistical Software 42:2-36 (2011); Cho, Wendy Tam and Liu, Yan Y., Toward a Talismanic Redistricting Tool: A Fully Balanced Computational Method for Identifying Extreme Redistricting Plans, Election L. J. 15(4): 351366 (2016). While such a politically mindless approach is no substitute for the considered judgments of fair-minded authorities attuned to the social, political, and economic realities of their states, the power of computers can provide guidance as to the effect of residential patterns.

- 14 -
Accordingly, amici used a graph partitioning approach to generate a comparison set of 10,000 alternative Assembly maps by computer considering only contiguity and population. Each map is unique, and each contains 99 Assembly districts which are contiguous and have a maximum population variance of 1.5%. The process that produces these maps tends to yield relatively compact districts, though odd shapes do occur in the effort to balance population. After the maps were created, amici added election results using the same data from the Wisconsin Legislative Service Bureau. These maps are partisan blind and provide plausible estimates of any bias created by residential geography.
Figure One presents the difference between median and mean in these alternative maps in each statewide election via a series of stacked histograms. The X-axis is the size of this difference, and the Y-axis is the number of observations in a range. The solid vertical line in each panel is the observed medianmean difference in the enacted map from Table One. Virtually all of the 10,000 maps show median-mean difference greater than 0 in each election. This is precisely as expected: the high concentrations of Democrats in Milwaukee and Madison produce a natural gerrymander that favors Republicans in Wisconsin’s Assembly. The magnitude of this bias shifts slightly depending on the election used to calculate it, but it mostly remains in the range of 1.5 to 3 points. This provides reassurance about the neutral mapping process for it captures the natural gerrymander that is widely suspected to exist in Wisconsin.

- 15 -
Notably, however, the vertical line representing the status quo is to the right of the bars of the histograms in each panel. In fact, the difference between the median and mean district in the enacted map is greater than the difference between median and mean in any of the 10,000 alternative maps in each election. In other words, the enacted map dilutes the voting strength of Democrats more than any of the 10,000 partisan-blind computer generated maps. This lack of overlap in any of the 130,000 separate comparisons made (10,000 maps x 13 elections versus the enacted map) is powerful evidence that the unfair treatment of Democratic voters in Wisconsin’s Assembly map is greater than what a neutral redistricting process would produce in all but the most extreme circumstances.
To get a sense of the magnitude of the bias produced by residential geography and the Legislature, Figure Two graphs average medianmean difference in the 10,000 alternative maps and in the enacted one. The upper solid line graphs the median-mean difference reported in the last column of Table One, and the dashed line is the average medianmean difference in the 10,000 neutral maps in each election. The shaded area below that dashed line represents what amici have described as the natural gerrymander, while the textured area between the solid and dashed lines represents what amici would call the “unnatural gerrymander” or the contribution of Act 43 above and beyond the effect of residential geography. The thickness of this textured area varies from 2.19 to 3.09 points, and accounts for 51% of the total vote dilution observed in the 13 elections. It is clear that the residential choice made by Wisconsites and the actions of the Legislature both dilute the

- 16 -
voting strength of Democrats vis-à-vis winning control of the Assembly. However, any claim that the proRepublican bias in the enacted map merely reflects Wisconsin’s residential geography is plainly false. The Assembly districts drawn and adopted by the State go far beyond the effects of residential geography by further disadvantaging Democratic voters.
This additional dilution has a dramatic effect on Democrats’ chances of winning control of the State Assembly for it effectively moves the necessary statewide performance from the category of a solid victory to a near landslide. The winning Democrat in the four relatively close races – Secretary of State in 2010 and 2014, and President and U.S. Senate in 2012 – carried 50 or more Assembly districts in the majority of the 10,000 neutral maps. In the enacted map, that candidate carried no more than 44 (Table One).
III. There is Empirical Evidence of Gerrymandering
Wisconsin’s Assembly boundaries effectively dilute Democrats’ voting strength and entrench a Republican majority in that body. The Assembly districts in Act 43 are clearly unfair in how they affect Democratic voters. Drawing districts to benefit one side is an ancient process which predates the term, “gerrymandering.” See, Best, Robin, Donahue, Shawn J., Krasno, Jonathan, Magleby, Daniel B., and McDonald, Michael D., Considering the Prospects for Establishing a Packing Gerrymandering Standard, Election L. J., (forthcoming 2018). While it was difficult to assess the level and degree of gerrymandering long ago, it seems clear that

- 17 -
technological advances have made it much easier to produce gerrymanders and, very likely, easier to produce gerrymanders whose effects are more predictable and durable. Indeed, journalistic reporting indicates that efforts to gerrymander were carefully planned and coordinated in the run-up to and aftermath of the 2010 elections, and that both sides have begun to gear up for a battle royal to gain control of the redistricting process following the 2020 census. See, Daley, David, Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy, New York: Liveright Publishing (2016). Any potential problems emanating from gerrymandering seem likely to become worse in the future, not better.
Voters who believe their votes are irrelevant to the outcome, often referred to by political scientists as having low political “efficacy,” are less likely to vote. See, Finkel, Steven E., Reciprocal Effects of Participation and Political Efficacy: A Panel Study, Am. J. Pol. Sci. 29:891-913 (1985). Candidates and parties who believe that path to victory is too narrow often fail to compete. For example, Wisconsin has large variations in voter turnout across its 99 Assembly districts especially in non-presidential election years, and most of its Assembly seats are uncontested or lightly contested. It is correct to associate these unwelcome developments first with local characteristics like the potential competitiveness of a specific Assembly district. But legislation that makes it extremely unlikely for a party and its voters to attain their most cherished goal, control of government, will exacerbate those problems.

- 18 -

There are policy consequences to any election, too. The current arrangement in Wisconsin makes it extremely likely that Republicans will continue to control the State Assembly through the end of this decade and, depending on how the 2021 redistricting unfolds, possibly beyond. That means that any Republican governor will likely enjoy a relatively cooperative lower house while any Democratic governor will likely face obstruction from the lower house. The Constitution establishes a system of checks and balances which makes it difficult for any party to coordinate various actors necessary to achieve desired policy. By entrenching a Republican majority in its State Assembly, Act 43 essentially gives Republicans a significantly greater opportunity to make policy than it gives Democrats. This sort of policymaking asymmetry ought to be the choice of voters rather than attained by a structural bias introduced into the state by statute.

CONCLUSION

The longstanding median-mean approach

confirms the findings of the lower courts using an

alternative statistical method. The data reveals the

scope and magnitude of the gerrymander that

occurred in Wisconsin. Over the past decade,

advances in computer science and its application to

political science, created analytical tools that were not

previously available.

These tools detected

gerrymandering in Wisconsin with “full analytical

satisfaction.” Vieth at 312. It is for this Court to

decide whether this kind of gerrymandering is good

politics or bad politics. Id. at 299.

- 19 -
Respectfully submitted,
Steven J. Hyman Alan E. Sash Jacqueline C. Gerrald
Counsel of Record Tracy A. Burnett
Of Counsel McLAUGHLIN & STERN, LLP 260 Madison Avenue New York, NY 10016 (212) 448-1100 shyman@mclaughlinstern.com asash@mclaughlinstern.com jgerrald@mclaughlinstern.com
September 5, 2017

- 20 -

- 21 -

- 22 -

Median-mean

Figure Two: Distinguishing between the effect of residential geography and Act 43

7

6

5

4 The "unnatural gerrymander"
3

2

1

The "natural gerrymander"

0
Pres Sen Gov AG SOS Treas Recall Pres Sen Gov AG SOS Treas 2008 2010 2010 2010 2010 2010 2012 2012 2012 2014 2014 2014 2014

 
 No. 16-1161

IN THE
Supreme Court of the United States
______________
BEVERLY R. GILL, ET AL., Appellants, v.
WILLIAM WHITFORD, ET AL., Appellees.
______________
On Appeal from the United States District Court for the Western District of Wisconsin ______________
MOTION TO AFFIRM ______________

Paul M. Smith Counsel of Record
CAMPAIGN LEGAL CENTER 1411 K Street NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org
Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E 60th St., Ste. 510 Chicago, IL 60637 (773) 702-4226 nsteph@uchicago.edu
Attorneys for Appellees

Jessica Ring Amunson JENNER & BLOCK LLP 1099 New York Ave. NW, Ste. 900 Washington, DC 20001 (202) 639-6000 jamunson@jenner.com
Michele Odorizzi MAYER BROWN, LLP 71 S. Wacker Dr. Chicago, IL 60606 (312) 782-0600 modorizzi@mayerbrown.com
Additional counsel listed on inside cover

J. Gerald Hebert Ruth M. Greenwood Danielle M. Lang Annabelle E. Harless CAMPAIGN LEGAL CENTER 1411 K Street NW, Ste. 1400 Washington, DC 20005
Douglas M. Poland RATHJE & WOODWARD, LLC 10 E. Doty St., Ste. 507 Madison, WI 53703

Peter G. Earle LAW OFFICE OF PETER G. EARLE 839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202

i QUESTIONS PRESENTED
1. Whether the test for partisan gerrymandering claims set forth by the three-judge panel—requiring discriminatory intent, a large and durable discriminatory effect, and a lack of a legitimate justification—is judicially discernible and manageable?
2. Whether the three-judge panel correctly found that the district plan for Wisconsin’s State Assembly is an unconstitutional partisan gerrymander under this test?

ii TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................i
TABLE OF AUTHORITIES ......................................... iv
INTRODUCTION ..............................................................1
STATEMENT OF THE CASE........................................5
I. Act 43 Was Intended to Give Republicans a Large and Durable Advantage...........................5
II. Act 43 Has Exhibited a Large and Durable Pro-Republican Partisan Asymmetry. .............................................................. 9
III. Act 43’s Large and Durable Partisan Asymmetry Cannot Be Justified.........................13
ARGUMENT ..................................................................... 16
I. The Panel’s Partisan Gerrymandering Test Is Judicially Discernible and Manageable. ............................................................ 17
A. The Panel’s Discriminatory Intent Prong Is Grounded in the Court’s First and Fourteenth Amendment Precedents..................17
B. The Panel’s Discriminatory Effect Prong Is Based on Partisan Symmetry, the Concept Identified as Promising by the LULAC Court........................................................19
C. The Panel’s Justification Prong Is Drawn from the Court’s One Person, One Vote Cases........................................................................ 23
II. Appellants’ Complaints About the Panel’s Test Are Meritless. ...............................................25

iii A. The Court Has Not Precluded Statewide
Partisan Gerrymandering Claims.......................26
B. The Court Has Not Made Noncompliance with Traditional Criteria an Element. ...............29
C. The Panel’s Test Is Not the Same as the Bandemer Plurality’s............................................32
D. The Panel’s Test Could Not Have Come as a Surprise to Appellants. .................................35
CONCLUSION .................................................................37

iv TABLE OF AUTHORITIES
CASES
Arizona State Legislative v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015)................................................ 2
Baldus v. Members of Wisconsin Government Accountability Board, 849 F. Supp. 2d 840 (E.D. Wis. 2012) ...........................................5-6, 9, 32
Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017)........................31-32
Brown v. Thomson, 462 U.S. 835 (1983) .. 23, 25, 32, 35
Chapman v. Meier, 420 U.S. 1 (1975) ........................ 25
Common Cause v. Rucho, No. 16-cv-1026, 2017 WL 876307 (M.D.N.C. Mar. 3, 2017) ........... 30
Cox v. Larios, 542 U.S. 947 (2004).............................. 18
Davis v. Bandemer, 478 U.S. 109 (1986)........... passim
Elrod v. Burns, 427 U.S. 347 (1976) ........................... 17
Gaffney v. Cummings, 412 U.S. 735 (1973) ........ 19, 31
Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016) ............... 18, 19
Kilgarlin v. Hill, 386 U.S. 120 (1967)......................... 25
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ............................ passim
Mahan v. Howell, 410 U.S. 315 (1973) ........... 24, 25, 35
Marks v. United States, 430 U.S. 188 (1977)............. 26
Miller v. Johnson, 515 U.S. 900 (1995) ...................... 28

v O’Hare Truck Service, Inc. v. City of
Northlake, 518 U.S. 712 (1996) ............................. 17
Reynolds v. Sims, 377 U.S. 533 (1964)................... 2, 23
Shaw v. Reno, 509 U.S. 630 (1993).............................. 28
State ex rel. Reynolds v. Zimmerman, 128 N.W.2d 16 (Wis. 1964) .............................................. 9
Thornburg v. Gingles, 478 U.S. 30 (1986) .................. 23
United States v. Hays, 515 U.S. 737 (1995) ............... 29
Vieth v. Jubelirer, 541 U.S. 267 (2004).............. passim
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ........................................................................ 17
Voinovich v. Quilter, 507 U.S. 146 (1993) .................. 24
CONSTITUTIONAL PROVISIONS
Wis. Const. art. IV, § 4................................................. 14
Wis. Const. art. IV, § 5................................................. 14
OTHER AUTHORITIES
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting, 16 Election L.J. (forthcoming 2017), http://www.umich.edu/~jowei/Political_Ge ography_Wisconsin_Redistricting.pdf ................ 15

1 INTRODUCTION
Wisconsin is a closely divided swing state. Its voters backed the Democratic candidate for President in 2012 and the Republican candidate in 2016. It has one Democratic and one Republican Senator. And in the State Assembly elections at issue in this case, both parties’ statewide votes have hovered very close to fifty percent. Democrats won a narrow statewide majority in 2012, while Republicans won equally slim majorities in 2014 and 2016.
Wisconsin’s Assembly, however, bears no resemblance to its evenly split electorate. In 2012, Republicans won a supermajority of sixty seats (out of ninety-nine) while losing the statewide vote. In 2014 and 2016, Republicans extended their advantage to sixty-three and sixty-four seats, respectively, even though the statewide vote remained nearly tied. Republicans thus wield legislative power unearned by their actual appeal to Wisconsin’s voters.
This pro-Republican skew is no accident. The threejudge court below (the “Panel”) found that the district plan for the Assembly, Act 43, “was intended to burden the representational rights of Democratic voters.” App. 3a. The skew is also exceptionally large and durable. “It is undisputed that, from 1972 to 2010, not a single legislative map in the country was as asymmetric in its first two elections” as Act 43. Dkt. 94:12. It is clear as well that “Act 43’s partisan effects will survive all likely electoral scenarios, throughout the decennial period.” App. 157a n.269. Nor is there a neutral justification for Act 43’s startling imbalance. Indeed, the map’s own authors “produced multiple alternative plans that

2 would have achieved the legislature’s valid redistricting goals while generating a substantially smaller partisan advantage.” App. 180a.
This Court has recognized that partisan gerrymanders—district maps that intentionally, severely, durably, and unjustifiably benefit one party while handicapping its opponent—“‘are incompatible with democratic principles.’” Ariz. State Legis. v. Ariz. Indep. Redist. Comm’n, 135 S. Ct. 2652, 2658 (2015) (citation and alteration omitted). This is because gerrymanders “burden[] rights of fair and effective representation,” Vieth v. Jubelirer, 541 U.S. 267, 312 (2004) (Kennedy, J., concurring in the judgment), and so prevent legislatures from being “collectively responsive to the popular will,” Reynolds v. Sims, 377 U.S. 533, 565 (1964). Justices have also observed that gerrymanders disrupt “‘those political processes ordinarily to be relied upon to protect minorities,’” Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment), and that “[t]he party that controls the [redistricting] process has no incentive to change it,” id. at 363 (Breyer, J., dissenting). That is precisely why judicial intervention was necessary here—to correct a serious democratic malfunction that would otherwise have gone unremedied.
Acknowledging the threat posed by partisan gerrymandering, the Panel endorsed the three-part test proposed by Appellees for determining when the practice crosses the constitutional line. This test’s first prong is discriminatory intent: whether a district plan “is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the

3 basis of their political affiliation.” App. 109a-110a. This element has deep roots in—indeed, is required by— foundational First and Fourteenth Amendment precedents. The Court’s case law also demonstrates that the presence (or absence) of discriminatory intent can be established straightforwardly in redistricting litigation.
The test’s second prong is discriminatory effect: whether a plan exhibits a partisan imbalance that is “sizeable,” App. 173a, and likely to “persist throughout the decennial period,” App. 166a. In League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) (“LULAC”), five Justices expressed interest in a gerrymandering standard based in part on the concept of partisan asymmetry. The Panel heeded these Justices’ comments, while also explaining that there exist multiple measures of asymmetry and that these metrics are helpful tools for gauging the severity and durability of a party’s disadvantage. As the Panel put it, the metrics provide “corroborative evidence of an aggressive partisan gerrymander that was both intended and likely to persist for the life of the plan.” App. 176a.
The test’s final prong is justification: whether a plan’s “partisan effect . . . can be explained by the legitimate state prerogatives and neutral factors that are implicated in the districting process.” App. 178a. This prong is drawn nearly verbatim from the Court’s one person, one vote cases, which hold that some degree of population inequality among districts can be justified by other valid objectives. The element plays the same role here: ensuring that asymmetric plans will

4 not be struck down if their skew stems from a state’s political geography or compliance with traditional redistricting criteria.
Oddly, Appellants barely try to argue that this test is not “judicially discernible and manageable”—even though that is the dispositive issue in this case. Vieth, 541 U.S. at 281 (plurality opinion) (quotation marks omitted). Instead, they contend that the test is somehow precluded by the Court’s fractured decisions in Vieth and Davis v. Bandemer, 478 U.S. 109 (1986). As to Vieth, Appellants assert that any restriction on partisan gerrymandering claims suggested by a dissenting Justice—like requiring them to proceed district by district or including noncompliance with traditional criteria as an element—represents a holding of the Court. Appellants’ logic is that four Justices concluded that such claims are nonjusticiable, and so, allegedly, would have favored any limit on their use.
This is a theory of precedent that has yet to occur to this Court or to any other. In LULAC, not a single Justice objected to the appellants’ claim on the grounds that it was statewide in nature or did not allege noncompliance with traditional criteria. Nor has even one lower court since Vieth rebuffed a challenge for these reasons. On the merits too, partisan gerrymandering is inherently a statewide activity, so it makes sense to adjudicate it on a statewide basis. Likewise, “intentional vote dilution” is “quite consistent with adherence to compactness and respect for political subdivision lines”—meaning there can be no safe harbor for satisfying these criteria. Vieth, 541 U.S. at 298 (plurality opinion).

5 As to Bandemer, Appellants maintain that the Panel’s test is identical to the one adopted by the plurality in that case (and rejected by the Court in Vieth). This is a baffling claim since the concept at the heart of this litigation—partisan asymmetry—was not even mentioned in Bandemer. Indeed, it was not until LULAC that the Court discussed for the first time the methods that social scientists use to measure gerrymandering. The Bandemer plurality’s standard also notoriously required plaintiffs to show that “their efforts to deliberate, register, and vote had been impeded.” Id. at 345 (Souter, J., dissenting). Needless to say, there is no such obligation under the Panel’s approach.
The Court should therefore affirm the decision below, which correctly articulated and applied a test for evaluating partisan gerrymandering claims that is judicially discernible and manageable. The Court could do so summarily; however, Appellees acknowledge that the importance of the issue may warrant full briefing and argument.
STATEMENT OF THE CASE
I. Act 43 Was Intended to Give Republicans a Large and Durable Advantage.
Two federal courts have concluded after trials that Act 43 was enacted with discriminatory intent. The Panel found that one of the law’s aims was “to entrench the Republican Party in power.” App. 140a. Previously, another three-judge court ruled that “partisan motivation . . . clearly lay behind Act 43,” adding that any argument to the contrary was “almost laughable.” Baldus v. Members of Wis. Gov’t Accountability Bd.,

6 849 F. Supp. 2d 840, 851-52 (E.D. Wis. 2012). Overwhelming evidence supports these determinations.
In 2010, as part of a coordinated national strategy to “win Republican control of state legislatures with the largest impact on . . . redistricting,” the Republican State Leadership Committee “spent $1.1 million to successfully flip both chambers of the Wisconsin legislature.” Ex. 472. In 2011, now in full command of the state government, Republican legislative leaders authorized a secretive and exclusionary mapmaking process aimed at securing for their party a large advantage that would persist no matter what happened in future elections.
Act 43 was thus drafted behind closed doors in a “map room” at a private law firm that only a handful of attorneys and aides were allowed to enter. App. 12a; Ex. 463. Ordinary rules of legislative transparency were waived by outsourcing the work to that firm. App. 12a; Ex. 355. Each Republican incumbent had to sign a secrecy agreement before being shown a draft of his or her new district (and an accompanying memo). Exs. 243-44. And only Republican legislators had a chance to see the districts; Act 43’s authors declined to meet with, or send a memo to, even a single Democrat prior to the bill’s unveiling. Dkt. 147:95-99; Ex. 341:8.
The individuals responsible for designing Act 43— Adam Foltz, Joseph Handrick, and Tad Ottman— created composites of Republican candidates’ vote shares in selected statewide races between 2004 and 2010. App. 17a-18a. These composites were tailored to correlate nearly perfectly with a more sophisticated “partisan score” generated by the Legislature’s

7 consultant, Professor Keith Gaddie. Id. Using the composites, the drafters crafted a series of provisional plans whose names betrayed their partisan agendas: “Adam Assertive,” “Joe Aggressive,” and the like. App. 19a-20a. All of these plans assumed that Republicans would win about 49% of the statewide Assembly vote. Ex. 467. For this minority of the vote, the plans steadily ratcheted upward the expected number of Republican seats: from forty-nine under the courtdrawn 2000s map to a supermajority of fifty-nine under the “Final Map.” App. 129a-130a; Ex. 487.
The drafters painstakingly analyzed the likely partisan performances of their provisional plans. Their “Tale of the Tape” spreadsheet, for instance, tracked the numbers of “GOP” and “DEM” seats, “statistical pickups” and “statistical losses,” and “Good outcomes” and “Bad outcomes.” App. 133a-135a; Exs. 283-84. For each plan, the drafters also created a table indicating how each district’s partisan composition changed from the court-drawn 2000s map. App. 128a-129a. Remarkably, the table for the Final Map showed the number of “Strong GOP” and “Lean GOP” seats rising by twelve, even as the number of “Swing” seats plummeted by nine. Ex. 172.1
1 The drafters’ analyses belie the argument, made by several amici, that voters lack any consistent partisan affiliation because they can change their minds from election to election. The drafters made no adjustments for incumbency, candidate quality, or any other factor, and treated past election results as a reliable guide to future ones.
The drafters’ predictions were also uncannily accurate. They forecast that the Final Map would convert a Republican vote share of 48.6% into fifty-nine Republican Assembly seats. Ex. 172. In

8 The sharp decline in the number of competitive seats demonstrates that Act 43 was intended to give Republicans a durable—not just a large—advantage. With fewer competitive seats, of course, a chamber’s composition varies only slightly even when the electorate’s preferences shift significantly. To analyze durability more rigorously, the Legislature’s consultant, Professor Gaddie, employed a technique known as “sensitivity testing.” That is, he swung the expected statewide vote by up to ten percentage points in each party’s direction, and then calculated what each party’s performance would be in each district if it swung by the same margin as the statewide vote. App. 131a. This analysis revealed that Democrats would have to secure at least 54% of the statewide vote—a feat achieved just once by either party over the last generation—before they would have a chance to gain control of the Assembly. App. 135a; Ex. 282.
In contrast to their obsessive focus on partisan advantage, Act 43’s drafters paid little attention to traditional redistricting criteria. App. 130a n.195. They failed to produce a single analysis of their districts’ contiguity, compactness, or splits of political subdivisions. Dkts. 147:154, 148:84. Nor did their
2012, Republicans indeed won 48.6% of the vote along with sixty Assembly seats. App. 148a.
The overwhelming influence of partisanship in Wisconsin elections is confirmed by Professor Kenneth Mayer’s analysis. He showed that a model including the presidential vote explains about 99% of the variance in the Assembly vote. Dkt. 54:22. In other words, Wisconsin’s voters behave virtually identically in presidential and state house races.

9 memos to Republican legislators even mention these criteria, instead presenting likely electoral outcomes. App. 136a. Act 43 divided more counties than any other plan in Wisconsin’s history, Dkt. 125 ¶ 221, even though “[c]ounty lines are held inviolable” under the Wisconsin Constitution, State ex rel. Reynolds v. Zimmerman, 128 N.W.2d 16, 17 (Wis. 1964) (per curiam). And Act 43’s treatment of minority voters was so deficient that portions of the plan were ruled unlawful under Section 2 of the Voting Rights Act. See Baldus, 849 F. Supp. 2d at 854-58.
After Act 43 was fine-tuned in secret for four months, it was introduced, debated, and passed in nine days in July 2011. App. 29a. “[U]pending more than a century of practice,” new ward lines were also drawn after Act 43 was enacted. Baldus, 849 F. Supp. 2d at 846. In every previous Wisconsin redistricting, wards were designed first, and districts then faithfully followed the wards’ boundaries.
II. Act 43 Has Exhibited a Large and Durable Pro-Republican Partisan Asymmetry.
According to the Panel, “[i]t is clear that the drafters got what they intended to get.” App. 146a. Act 43 “secured for Republicans a lasting Assembly majority” by “allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%.” App. 145a. This is evident from the results of the elections held under Act 43. In 2012 and 2014, Republicans won 48.6% and 52.0% of the twoparty Assembly vote, respectively. But in these nearly tied elections, Republicans won supermajorities of

10 60.6% and 63.6% of the seats in the Assembly. App. 148a.2
These seat and vote tallies are corroborated by measures of partisan asymmetry that social scientists have developed to assess the severity of partisan gerrymandering. One such metric, partisan bias, was discussed extensively by the Court in LULAC. See 548 U.S. at 420 (opinion of Kennedy, J.); id. at 466 (Stevens, J., concurring in part and dissenting in part). Partisan bias is the difference between the shares of seats that the major parties would win if they each received the same share (typically 50%) of the statewide vote. For example, if Democrats would win 55% of a plan’s districts if they received 50% of the statewide vote (leaving 45% of the districts to be won by Republicans), then the plan would have a pro-Democratic bias of 5%.
Another metric, the efficiency gap, is rooted in the insight that partisan gerrymandering is always carried out in one of two ways: the cracking of a party’s supporters among many districts, in which their preferred candidates lose by relatively narrow margins; or the packing of a party’s backers in a few districts, in which their preferred candidates win by overwhelming margins. See Vieth, 541 U.S. at 286 n.7 (plurality opinion). Both cracking and packing produce what social scientists call “wasted votes” because they do not contribute to a candidate’s victory. In the case of cracking, all votes cast for the losing candidate are wasted; in the case of packing, all votes cast for the
2 In 2016, a year in which the Republican presidential candidate won in Wisconsin by a whisker, Republicans increased their Assembly supermajority to 64.6%.

11 winning candidate, above the 50% (plus one) threshold needed for victory, are wasted. The efficiency gap is simply one party’s total wasted votes in an election, minus the other party’s total wasted votes, divided by the total number of votes cast. It captures in a single number the extent to which one party’s voters are more cracked and packed than the other party’s voters. App. 159a-162a.3
Notably, neither partisan bias nor the efficiency gap requires proportional representation—that is, “equal representation in government [for] equivalently sized groups.” Vieth, 541 U.S. at 288 (plurality opinion). A partisan bias of zero is consistent with a party’s seat share rising faster than its vote share, as long as if the parties’ fortunes reversed, the other party would enjoy an equivalent advantage. Ex. 333:8. Similarly, as the Panel correctly observed, “the efficiency gap is about comparing the wasted votes of each party, not determining whether the party’s percentage of the statewide vote share is reflected in the number of representatives that party elects.” Dkt. 43:20.
Act 43 exhibited pro-Republican partisan biases of 12.6% and 11.6%, respectively, in 2012 and 2014. In other words, had these elections been perfectly tied,
3 Appellants’ complaints about the efficiency gap—that it may vary from election to election, and that it does not take into account political geography, J.S. 17, 33-34—apply equally to all measures of partisan asymmetry. The Panel also rebutted these points by finding that Act 43’s pro-Republican skew is extremely durable, App. 157a-166a, and not attributable to the spatial patterns of Wisconsin’s voters, App. 203a-218a. Appellants do not claim these findings are clearly erroneous.

12 Republicans would have won between 61.6% and 62.6% of the seats in the Assembly. Ex. 329. Act 43 also exhibited pro-Republican efficiency gaps of 13.3% and 9.6% in 2012 and 2014. That is, votes for Democratic Assembly candidates were wasted at a rate from 9.6 to 13.3 percentage points higher than the rate at which Republican votes were wasted. App. 173a.4
These partisan asymmetries are more severe than any that Wisconsin has experienced over the last halfcentury. Indeed, between 1972 and 2010, the average partisan bias in Assembly elections was just -1% and the average efficiency gap was just -3%. Ex. 329.5 Compared to the country as a whole, the asymmetries are also extreme outliers. Appellees’ expert, Professor Simon Jackman, calculated the average efficiency gap of almost every state house plan in America from 1972 to 2014. Ex. 35. Act 43’s skew has been exceeded by only a handful of plans, and as noted earlier, it is undisputed that prior to the current redistricting cycle, “not a single legislative map in the country was as
4 Social scientists also assess partisan gerrymandering by calculating the difference between a party’s mean vote share and median vote share across all of the districts in a plan. Ex. 405. When the mean and the median diverge significantly, the district distribution is skewed in favor of one party and against its opponent. Id. Here, Act 43 exhibited large, pro-Republican meanmedian differences of 5.6% and 6.9% in 2012 and 2014. Dkt. 134:33.
5 Even the 2000s plan that Appellants emphasize, J.S. 10-11, had an average partisan bias about 50% smaller than Act 43, and an average efficiency gap about 33% smaller. Ex. 329. This superior record was no accident: Act 43’s authors expected that their map would yield ten more Republican seats than the 2000s plan. App. 21a-22a; Ex. 487.

13 asymmetric in its first two elections” as Act 43. Dkt. 94:12; App. 50a.
The magnitude of the Republican advantage under Act 43 is matched by its durability. Professor Jackman examined how plans’ initial efficiency gaps are linked to the average efficiency gaps they exhibit over their lifetimes. Based on this analysis, he concluded that Act 43’s average efficiency gap will be a near-record 9.5% in a Republican direction over the decade the map is in effect. App. 173a-174a. Professor Jackman also conducted sensitivity testing identical to Professor Gaddie’s, except using actual election results (from 2012) rather than predicted ones. According to this testing, even if the statewide Assembly vote swung by five points in a Democratic direction—a shift that would represent the largest Democratic wave in over forty years—Act 43 would still exhibit a double-digit pro-Republican efficiency gap. Act 43’s skew is thus essentially impervious to electoral tides. Ex. 495; App. 165a-66a.
III. Act 43’s Large and Durable Partisan Asymmetry Cannot Be Justified.
Act 43’s skew also cannot be justified by Wisconsin’s political geography or efforts to comply with traditional redistricting criteria. As the Panel determined, these factors “simply do[] not explain adequately the sizeable disparate effect seen in 2012 and 2014.” App. 180a. The evidence fully supports this finding.
First, all of the maps used in previous decades (from the 1970s onward) exhibited much smaller partisan biases and efficiency gaps than Act 43. Ex. 329. They

14 did so, moreover, while splitting significantly fewer counties than Act 43, not violating the Voting Rights Act, and performing equally well in terms of contiguity, compactness, municipality splits, and compliance with the one person, one vote requirement. Dkt. 125 ¶ 221.
Second, Act 43’s own authors “produced several statewide draft plans that performed satisfactorily on legitimate redistricting criteria without attaining the drastic partisan advantage demonstrated . . . in Act 43.” App. 218a. This means that Wisconsin’s current political geography is perfectly compatible with much more balanced maps. If it were not, Act 43’s drafters would not have been able to design them.
And third, Appellees’ expert, Professor Kenneth Mayer, created a demonstration plan that matched or exceeded Act 43 on every federal and state criterion. It had a total population deviation below 1%, the same number of majority-minority districts, somewhat more compact districts, and somewhat fewer political subdivision splits. App. 212a. The demonstration plan’s efficiency gap, however, was fully ten percentage points lower than that of Act 43. Id.6
Notwithstanding these findings by the Panel—none of which is alleged to be clearly erroneous—Appellants and several amici contend that Wisconsin’s political
6 Appellants’ criticism of the demonstration plan for unintentionally pairing incumbents, J.S. 15-16, 33, is ironic given Act 43’s deliberate pairing of ten incumbents in heavily Republican districts where the paired Democrats were all expected to lose, Ex. 284. Moreover, unlike in several other states, incumbency protection is not a redistricting criterion in Wisconsin. Wis. Const. art. IV, §§ 4-5.

15

geography inherently favors Republicans. In advancing

this claim, amici rely heavily on the work of Professor

Jowei Chen, who has found that in other states,

randomly generated district plans often (but far from

always) benefit Republicans. Amici fail to mention,

however, that Professor Chen has also applied his

simulation technique to Wisconsin, creating 200

separate Assembly maps. Every one of these maps

exhibits a much smaller efficiency gap than Act 43,

while featuring more compact districts and splitting

fewer political subdivisions. In fact, fully three-fourths

of the simulated plans have efficiency gaps of less than

3%, and one-fourth have efficiency gaps below 1%, thus

disproving any assertion that Wisconsin voters’ spatial

patterns are responsible for Act 43’s skew. Jowei Chen,

The Impact of Political Geography on Wisconsin

Redistricting, 16 Election L.J. (forthcoming 2017),

available

at

http://www.umich.edu/~jowei/

Political_Geography_Wisconsin_Redistricting.pdf.

*

*

*

In sum, the factual record here is unlike that in any earlier partisan gerrymandering case. The documents disclosed by Appellants illustrate in arresting detail exactly how Act 43—an archetype of modern gerrymanders—was constructed. Professor Jackman analyzed the partisan asymmetry of not just Act 43, but also nearly every other state house plan over the last half-century. Four separate experts converged on a single method, sensitivity testing, for assessing the durability of Act 43’s asymmetry. And political geography and compliance with traditional redistricting criteria were ruled out as justifications for Act 43’s skew by an array of alternative Assembly maps. It is

16 for these reasons that the Panel concluded that “[t]he record here is not plagued by the infirmities that have [concerned] the Court in previous cases.” App. 155a.
This record was generated over the course of a fourday trial featuring eight witnesses. In addition to the parties’ experts and one plaintiff, two of Act 43’s drafters (Foltz and Ottman) and the Legislature’s consultant (Professor Gaddie) provided testimony. Foltz and Ottman confirmed that they had gone to extraordinary lengths to analyze—and augment—the Republican advantage under Act 43. App. 126a-140a. Professor Gaddie shed further light on the methods of Act 43’s drafters, while also explaining how he had verified the durability of the Republican edge. App. 126a-131a. The record on which the Panel based its judgment was thus unprecedented in both substance and scope.
ARGUMENT
The critical question in this case is whether the partisan gerrymandering test adopted by the Panel is “judicially discernible and manageable.” Vieth, 541 U.S. at 281 (plurality opinion) (quotation marks omitted).7 Appellants hardly mention this issue, straining instead to argue that the test is barred by the Court’s precedents. Appellees, in contrast, first show that each of the test’s prongs is indeed discernible and manageable. Appellees next respond to Appellants’ flawed readings of the Court’s case law.
7 There is no dispute that Act 43 is unlawful under this test. As Appellants conceded below, “defendants do not deny that plaintiffs could prove their claim under their proposed standard.” Dkt. 94:11.

17 I. The Panel’s Partisan Gerrymandering Test Is
Judicially Discernible and Manageable.
The Panel’s test has three elements: (1) discriminatory intent; (2) a large and durable discriminatory effect; and (3) a lack of a legitimate justification. Each of these elements is deeply rooted in the Court’s jurisprudence and highly workable.
A. The Panel’s Discriminatory Intent Prong Is Grounded in the Court’s First and Fourteenth Amendment Precedents.
The Panel’s discriminatory intent prong—whether a district plan “is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation,” App. 109a110a—follows from basic First and Fourteenth Amendment principles. Under the First Amendment, “political belief and association constitute the core of those activities protected,” Elrod v. Burns, 427 U.S. 347, 356 (1976), meaning that heightened scrutiny applies when the government disadvantages people “on account of their political association,” O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 717 (1996). Under the Fourteenth Amendment, likewise, “[p]roof of . . . discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
Consistent with these tenets, the Court has confirmed in each of its partisan gerrymandering decisions that discriminatory intent must be shown. The Bandemer plurality declared that “plaintiffs were required to prove . . . intentional discrimination against

18 an identifiable political group.” 478 U.S. at 127 (plurality opinion). In Vieth, Justice Kennedy elaborated that the mere use of “political classifications” by mapmakers is not prohibited; rather, “a gerrymander violates the law” if “the classifications . . . were applied in an invidious manner.” 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (emphasis added). And in LULAC, Justice Kennedy further explained that while an “unlawful motive” must be established, a plan only violates the Constitution if it also has a sufficient discriminatory effect. 548 U.S. at 418 (opinion of Kennedy, J.); see also Harris v. Ariz. Indep. Redist. Comm’n, 136 S. Ct. 1301, 1310 (2016) (suggesting that “partisanship is an illegitimate redistricting factor”).
Not only has the Court spoken with a clear voice about the necessity of proving discriminatory intent, it has also demonstrated that this inquiry is judicially manageable. The Bandemer plurality was “confident that . . . th[e] record would support a finding that the discrimination was intentional” where voluminous material “evidenced an intentional effort to favor Republican incumbents and candidates and to disadvantage Democratic voters.” 478 U.S. at 116, 127 (plurality opinion). In LULAC, similarly, Justice Kennedy had little trouble concluding that “[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority.” 548 U.S. at 417 (opinion of Kennedy, J.); see also Cox v. Larios, 542 U.S. 947, 947 (2004) (Stevens, J., concurring) (finding that a Georgia state house map reflected “‘an intentional effort to

19 allow incumbent Democrats to maintain or increase their delegation’” (citation omitted)).
Conversely, in Gaffney v. Cummings, 412 U.S. 735, 752 (1973), the Court properly rejected a claim that Connecticut state legislative maps were “invidiously discriminatory.” These maps had been designed by “a three-man bipartisan Board”—rather than a legislature under a single party’s control—that “followed a policy of ‘political fairness.’” Id. at 736, 738. In Harris too, the Court unanimously disagreed that “illegitimate considerations were the predominant motivation” behind an Arizona state legislative plan. 136 S. Ct. at 1309. This plan had been crafted by an “independent redistricting commission” that had made “‘good-faith efforts to comply with the Voting Rights Act.’” Id. at 1305, 1309 (citation omitted).
These holdings are a model of judicial consistency. They show that the Panel’s discriminatory intent prong not only stems from core constitutional values, but also is capable of reliable and non-arbitrary application.
B. The Panel’s Discriminatory Effect Prong Is Based on Partisan Symmetry, the Concept Identified as Promising by the LULAC Court.
Turning to discriminatory effect, the Panel required that a plan exhibit a partisan imbalance that is “sizeable,” App. 173a, and likely to “persist throughout the decennial period,” App. 166a. According to the Panel, the magnitude of a plan’s partisan skew may be demonstrated through election results as well as social scientific measures like partisan bias and the efficiency gap. In turn, the durability of a plan’s tilt may be established through sensitivity testing like that

20 conducted by several experts in the case. App. 145a146a, 149a.
At least five Justices contemplated a discriminatory effect prong of this sort in LULAC. Justice Stevens defined partisan symmetry as a “‘require[ment] that the electoral system treat similarly-situated parties equally’” in terms of the translation of their popular support into legislative representation. 548 U.S. at 466 (Stevens, J., concurring in part and dissenting in part). He then observed that symmetry is “widely accepted by scholars as providing a measure of partisan fairness in electoral systems,” calling it a “helpful (though certainly not talismanic) tool.” Id. at 466, 468 n.9. Justice Souter (joined by Justice Ginsburg) stressed the “utility of a criterion of symmetry as a test,” and urged “further attention [to] be devoted to the administrability of such a criterion at all levels of redistricting and its review.” Id. at 483-84 (Souter, J., concurring in part and dissenting in part). Justice Breyer remarked that asymmetry may cause a plan to “produce a majority of congressional representatives even if the favored party receives only a minority of popular votes.” Id. at 492 (Breyer, J., concurring in part and dissenting in part).
And Justice Kennedy wrote with respect to partisan symmetry that he did not “discount[] its utility in redistricting planning and litigation.” Id. at 420 (opinion of Kennedy, J.); see also id. at 468 n.9 (Stevens, J., concurring in part and dissenting in part) (“appreciat[ing] Justice Kennedy’s leaving the door open to the use of the standard in future cases”). Justice Kennedy added that “asymmetry alone is not a

21 reliable measure of unconstitutional partisanship.” Id. at 420 (opinion of Kennedy, J.) (emphasis added). Under the Panel’s test, of course, asymmetry is far from dispositive. Indeed, it is only one half (the other being durability) of one of the test’s three prongs.8
Two further themes in the Court’s cases support the Panel’s discriminatory effect prong. First, Justice Kennedy has emphasized the need for “a workable standard for measuring a gerrymander’s burden on representational rights.” Vieth, 541 U.S. at 311 (Kennedy, J., concurring in the judgment) (emphasis added). He has also expressed hope that “new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose.” Id. at 312-13. Measures of partisan asymmetry like partisan bias and the efficiency gap, as well as analytical techniques like sensitivity testing, respond directly to these points. They capture quantitatively the ways in which gerrymanders distort the translation of the electorate’s preferences into legislative representation. They also exploit recent conceptual and methodological advances in the social sciences. Ex. 34:11-32.9
8 Justice Kennedy also observed that the particular measure of partisan asymmetry before the Court in LULAC, partisan bias, examines the “results that would occur in a hypothetical state of affairs.” Id. at 420 (opinion of Kennedy, J.). In closely divided states like Wisconsin, a counterfactual, perfectly tied election is highly plausible. Moreover, other measures of partisan asymmetry, like the efficiency gap and the mean-median difference, rely only on actual election results.
9 Justice Kennedy has also noted the need for a “substantive definition of fairness in districting” that “command[s] general

22 Second, the Court has repeatedly sought to limit judicial intervention to durable gerrymanders—plans with partisan imbalances that are unlikely to fade over the course of a decade. See LULAC, 548 U.S. at 419 (opinion of Kennedy, J.) (criticizing a plan that “entrenched a party on the verge of minority status”); Vieth, 541 U.S. at 360 (Breyer, J., dissenting) (advocating a test based on the “use of political factors to entrench a minority in power”); Bandemer, 478 U.S. at 132-33 (plurality opinion) (requiring that a plan “consistently degrade . . . a group of voters’ influence,” resulting in the “continued frustration of the will . . . of the voters”). The Panel’s approach is consistent with these comments. It would permit a plan to be invalidated only if plaintiffs first proved, using an “accepted method of testing how a particular map would fare under different electoral conditions,” that any skew is enduring rather than ephemeral. App. 149a n.255.
To be clear, Appellees do not ask the Court to endorse any particular measure of partisan asymmetry or any particular technique for demonstrating durability. The Panel did not do so, nor need the Court in order to affirm. Rather, Appellees advocate the same course of action the Court has followed in other redistricting contexts involving discriminatory effects: namely, the articulation of a standard whose precise
assent.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). In the academic community, “[s]ocial scientists have long recognized partisan symmetry as the appropriate way to define partisan fairness . . . and for many years such a view has been virtually a consensus position.” Ex. 333:6.

23 contours are filled in through subsequent litigation. This was the Court’s strategy in Reynolds, where it condemned “egregious” population deviations without trying to identify the point at which population inequality becomes unlawful. 377 U.S. at 569. This was also how the Court proceeded in Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), recognizing concepts such as geographic compactness and racial polarization without prescribing how they should be measured. An analogous approach would work equally well here.10
C. The Panel’s Justification Prong Is Drawn from the Court’s One Person, One Vote Cases.
The final prong of the Panel’s test is justification: whether a partisan imbalance that is intentional, large, and durable nevertheless “can be explained by the legitimate state prerogatives and neutral factors that are implicated in the districting process.” App. 178a. This prong is drawn directly from the Court’s one person, one vote cases. In these cases, even a total population deviation above ten percent for a state legislative plan is not automatically fatal. Rather, the deviation can be “justified by the State” based on the State’s political geography or legitimate redistricting objectives. Brown v. Thomson, 462 U.S. 835, 843 (1983);
10 Appellants contend that a discriminatory effect prong along these lines would imperil one-third of all plans. J.S. 14-15, 33-34. This claim ignores (1) the Panel’s requirement that discriminatory intent be separately established; (2) the Panel’s insistence that a large and durable partisan asymmetry be shown; and (3) the possibility that a state could justify its plan’s skew. Moreover, as the Panel pointed out, “[i]f plaintiffs’ proposed formulation is not sufficiently demanding,” it is obviously possible to “rais[e] the threshold necessary to support a claim.” Dkt. 94:26.

24 see also, e.g., Voinovich v. Quilter, 507 U.S. 146, 161 (1993) (“appellants were required to justify the deviation”); Mahan v. Howell, 410 U.S. 315, 326 (1973).
In the partisan gerrymandering context too, several Justices have recommended a distinct inquiry into justification. Justice Kennedy, for instance, has written that mapmakers’ use of “political classifications” is only prohibited when it is “unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Justice Souter, similarly, would “shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage” if the rest of his test was satisfied. Id. at 351 (Souter, J., dissenting); see also Bandemer, 478 U.S. at 141 (plurality opinion) (if plaintiffs set forth a prima facie case, “then the legislation would be examined for valid underpinnings”).
The justification prong plays the same role in both of these areas: allowing population equality and partisan symmetry, respectively, to be balanced against other valid considerations. If there were no such prong, then states might have trouble pursuing goals such as compactness, respect for political subdivisions, and compliance with the Voting Rights Act, to the extent these aims resulted in excessive population inequality or partisan asymmetry. States could also be put in a difficult position if their political geography hampered them from enacting a sufficiently equipopulous or symmetric plan. The justification prong avoids both of these scenarios.

25 The prong’s workability is shown by the half century in which it has been used in one person, one vote cases. Over this period, the Court has reliably distinguished between plans whose large population deviations are justified by legitimate factors and plans whose malapportionment cannot be properly explained. Compare, e.g., Brown, 462 U.S. at 844 (upholding a map whose “population deviations [were] no greater than necessary to preserve counties as representative districts”), and Mahan, 410 U.S. at 323 (same where the state “consistently sought to avoid the fragmentation of [political] subdivisions”), with Chapman v. Meier, 420 U.S. 1, 25 (1975) (invalidating a map where the state’s interests did not “prevent[] attaining a significantly lower population variance”), and Kilgarlin v. Hill, 386 U.S. 120, 124 (1967) (same where alternative plans “respected county lines” but “produced substantially smaller deviations”). Under the Panel’s approach, the same time-tested inquiry would apply to partisan (as opposed to population) imbalances.
II. Appellants’ Complaints About the Panel’s Test Are Meritless.
Appellants do not engage with any of the above analysis. Instead, they hang their hats on a series of unpersuasive arguments about Vieth and Bandemer as well as the farfetched assertion that they were caught unaware by the Panel’s test. The Court should reject these claims.

26 A. The Court Has Not Precluded Statewide
Partisan Gerrymandering Claims.
Appellants’ first contention is that Vieth somehow precludes partisan gerrymandering claims that are statewide rather than district-specific in nature. J.S. 20-25. To defend this stance, Appellants invent a novel theory of precedent: that when certain Justices conclude that a cause of action is nonjusticiable, they necessarily believe that if the claim were justiciable, it should be limited in the ways suggested by other Justices’ opinions. There is no support for this theory, and for good reason. When certain Justices conclude that a cause of action is nonjusticiable, that is all they conclude. They simply express no opinion on how the claim should operate if it were, in fact, capable of being adjudicated.
It is thus unsurprising that when there is no majority opinion in a case, the Court does not employ Appellants’ theory but rather treats as “‘the holding of the Court . . . that position taken by those Members who concurred in the judgment[] on the narrowest grounds.’” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted). In Vieth, Justice Kennedy was the only Justice who concurred in the plurality’s judgment but did not join the plurality’s opinion. And it could not be clearer from his concurrence that he contemplated partisan gerrymandering claims proceeding on a statewide basis. He commented that “[i]f a State passed an enactment” explicitly burdening a party’s “rights to fair and effective representation,” “we would surely conclude the Constitution had been violated.” 541 U.S. at 312 (Kennedy, J., concurring in

27 the judgment). He also offered two examples of “culpable” gerrymanders, both statewide in nature. Id. at 316. “In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat.” Id. “In three other States, Party Y controls the apportionment process . . . . capturing less than all the seats in each State.” Id.
That Vieth did not preclude statewide partisan gerrymandering claims is also evident from developments since that case. In LULAC, the appellants challenged Texas’s congressional plan in its entirety. See 548 U.S. at 416 (opinion of Kennedy, J.). Yet not a single Justice hinted that the suit was foreclosed for this reason. Indeed, the concept of partisan symmetry discussed in LULAC is only coherent with respect to a statewide map as a whole. In the lower courts too, there have been more than a dozen partisan gerrymandering cases since Vieth. Not one has adopted Appellants’ idiosyncratic view; rather, as the Panel pointed out, “courts considering partisan gerrymandering consistently have assumed that standing exists to challenge a statewide plan.” Dkt. 43:15.
Appellants further err in focusing on a few snippets in Justice Stevens’s Vieth dissent. J.S. 21. Justice Stevens himself did not consider those comments binding in LULAC, where he would have struck down Texas’s entire congressional plan because it “impose[d] a severe statewide burden on the ability of Democratic voters and politicians to influence the political process.” 548 U.S. at 464 (Stevens, J., concurring in part and dissenting in part) (emphasis added). The comments

28 are also attributable to Justice Stevens’s belief that “racial and political gerrymanders are species of the same constitutional concern.” Vieth, 541 U.S. at 327 (Stevens, J., dissenting). Because of this belief, he thought that partisan gerrymandering plaintiffs should be bound by the same standing rules as racial gerrymandering plaintiffs.
No other member of the Court, however, has ever endorsed Justice Stevens’s position on the equivalence of racial and partisan gerrymandering claims. Indeed, the Vieth plurality refused to extend the “predominant intent” test of the racial gerrymandering cases to the partisan gerrymandering context. See id. at 285 (plurality opinion). Justice Kennedy also observed in Vieth that racial gerrymandering “implicate[s] a different inquiry” than partisan gerrymandering since “[r]ace is an impermissible classification” while “[p]olitics is quite a different matter.” Id. at 307 (Kennedy, J., concurring in the judgment).
Because racial gerrymandering and partisan gerrymandering are distinct causes of action, underpinned by distinct harms, Appellants are wrong to conflate them. The crux of a racial gerrymandering claim is that a particular district was created for a predominantly racial reason, Miller v. Johnson, 515 U.S. 900, 916 (1995), thus “classifying [that district’s] citizens by race” and causing the district’s representative to “believe that [her] primary obligation is to represent only the members of that [racial] group,” Shaw v. Reno, 509 U.S. 630, 646-47 (1993). The theory of a partisan gerrymandering claim, in contrast, is completely different. It is that a district plan as a

29 whole deliberately, severely, durably, and unjustifiably benefits one party and disadvantages its opponent. That is why, as the Panel held, “[t]he rationale and holding of [United States v. Hays, 515 U.S. 737 (1995)] have no application here.” App. 224a. This is a case about the partisan manipulation of an entire district map—not the racial distortion of an individual constituency.
B. The Court Has Not Made Noncompliance with Traditional Criteria an Element.
Appellants’ next argument has the same structure as their first one: A Vieth dissenter (here, Justice Souter) recommended making noncompliance with traditional redistricting criteria an element of a partisan gerrymandering claim. If the four Justices in the Vieth plurality are combined with him, that supposedly adds up to five votes for his position. J.S. 26-28.
This argument fails for the reasons outlined above. First, Appellants have to put words in the mouth of the Vieth plurality because it never actually said that if partisan gerrymandering were justiciable, it should include as an element noncompliance with traditional criteria. J.S. 26. Second, Justice Kennedy’s controlling concurrence in Vieth explained why traditional criteria are not “sound as independent judicial standards for measuring a burden on representational rights.” 541 U.S. at 308 (Kennedy, J., concurring in the judgment). Their defect is that “[t]hey cannot promise political neutrality when used as the basis for relief,” but rather “unavoidably have significant political effect.” Id. at 308-09. Third, the appellants in LULAC did not assert

30 noncompliance with traditional criteria in their challenge to Texas’s congressional plan. But not a single Justice thought their claim should fail for this reason. And fourth, in the thirteen years since Vieth, not one lower court has adopted Appellants’ position. Indeed, a three-judge panel recently (and unanimously) denied a state’s motion to dismiss even though the plaintiffs did “‘not allege that the [plan] fails to follow traditional redistricting principles.’” Common Cause v. Rucho, No. 16-cv-1026, 2017 WL 876307, at *10 (M.D.N.C. Mar. 3, 2017) (citation omitted; bracket in original).
Beyond these points, the proposition that a partisan gerrymandering claim must include as an element noncompliance with traditional criteria was explicitly rejected by five Justices in Vieth. The plurality stressed the unmanageability of this criterion, asking “How much disregard of traditional districting principles?” and “What is a lower court to do when . . . the district adheres to some traditional criteria but not others?” 541 U.S. at 296 (plurality opinion). The plurality also observed that aesthetically pleasing districts nevertheless can be grossly gerrymandered: “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.” Id. at 298. Justice Kennedy agreed with this portion of the plurality’s opinion. See id. at 308 (Kennedy, J., concurring in the judgment).
Vieth was not the first time that Appellants’ argument was raised—or rebuffed. In Bandemer, Justice Powell opined that the “most important” factor should be “the shapes of voting districts and adherence

31 to established political subdivision boundaries.” 478 U.S. at 173 (Powell, J., concurring in part and dissenting in part). The plurality specifically “disagree[d] . . . with [his] conception of a constitutional violation” because noncompliance with traditional criteria does “not show any actual disadvantage beyond that shown by the election results.” Id. at 138-40 (plurality opinion). In Gaffney, likewise, a unanimous Court was unmoved by evidence that “irregularly shaped districts” “‘wiggle[d] and joggle[d]’ boundary lines.” 412 U.S. at 752 n.18. “[C]ompactness or attractiveness,” declared the Court, “has never been held to constitute an independent federal constitutional requirement.” Id.
As the Panel explained, these holdings make a great deal of sense. Traditional criteria can be disregarded for many reasons other than partisanship: a predominant racial motivation, an effort to comply with the Voting Rights Act, the presence of irregular geographic boundaries, and so on. App. 121a. At the same time, “[h]ighly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional criteria.” Id. at 121a-122a. “A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” Id. at 122a.
None of this is to say that traditional criteria are irrelevant under the Panel’s test. As in the racial gerrymandering context, a failure to abide by them may be probative evidence of discriminatory intent. See, e.g., Bethune-Hill v. Va. State Bd. of Elections, 137

32 S. Ct. 788, 799 (2017) (“[A] conflict or inconsistency” between districts and traditional criteria “may be persuasive circumstantial evidence tending to show racial predomination.”). And as in the one person, one vote context, respect for traditional criteria may provide a justification for a plan’s discriminatory effect. See, e.g., Brown, 462 U.S. at 844 (permitting a large population deviation that was “entirely the result of the consistent . . . application of a legitimate state policy”).
Lastly, there is indeed a “dispute that Act 43 complies with traditional districting principles.” J.S. 27. Appellees did not emphasize the plan’s noncompliance at trial because they were able to present even more damning evidence of discriminatory intent. But the plan is certainly noncompliant. As documented above, it splits more counties than any other map in Wisconsin’s history, Dkt. 125 ¶ 221, and was found to violate Section 2 of the Voting Rights Act, see Baldus, 849 F. Supp. 2d at 854-58. Act 43’s districts are also less compact, on average, than those of any other Wisconsin map for which data is available. Dkt. 125 ¶ 221.
C. The Panel’s Test Is Not the Same as the Bandemer Plurality’s.
Shifting their focus from Vieth to Bandemer, Appellants further contend—for the first time on appeal—that the Panel’s test is identical to the one endorsed by the Bandemer plurality and rejected by the Court in Vieth. Appellants’ reasoning, in essence, is that both the Panel and the Bandemer plurality took into account discriminatory intent, discriminatory effect, and justification. Ergo, the two tests are the same. J.S. 28-34.

33 Bandemer, however, has no monopoly on these concepts. To the contrary, they both predate and postdate that decision, and feature in the Court’s case law on both partisan gerrymandering and many other issues. The Panel’s discriminatory intent prong, for instance, is grounded not in Bandemer but rather in myriad precedents making clear that without an invidious purpose, neither the First nor the Fourteenth Amendment is typically violated. App. 110a-125a. Similarly, the Panel’s discriminatory effect prong draws primarily from LULAC, the only Court decision to date that has discussed partisan asymmetry. App. 159a-177a. And the Panel’s justification prong is taken almost verbatim from the Court’s one person, one vote cases. App. 177a-179a.
Turning to the details of the two tests, it is indisputable that they are different. The most famous aspect of the Bandemer plurality’s test was its insistence that plaintiffs not only prove the manipulation of district lines for partisan gain, but also show that they had been denied “the opportunity . . . to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns.” 478 U.S. at 133 (plurality opinion); see also Vieth, 541 U.S. at 345 (Souter, J., dissenting) (noting that this requirement “raise[d] real doubt that a case could ever be made out”). The Panel’s test, of course, includes no such criterion of participatory exclusion.
What the Panel’s test does include is a significant role for measures of partisan asymmetry like partisan

34 bias and the efficiency gap. App. 159a-177a. These metrics, though, are nowhere to be found in the Bandemer plurality’s opinion. And for good reason. The canonical social scientific articles developing the concept of partisan asymmetry were not published until several years after Bandemer was decided. Exs. 100, 148, 414. And it was not until LULAC that partisan asymmetry first came to the attention of the Court.
The Panel’s intent prong is also significantly more rigorous than the Bandemer plurality’s. The Bandemer plurality thought that “[a]s long as redistricting is done by a legislature” under a single party’s control, “it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” 478 U.S. at 129 (plurality opinion). In contrast, the Panel required “an intent to entrench a political party in power,” that is, “to make the political system systematically unresponsive to a particular segment of the voters.” App. 117a (emphasis added). An intent to achieve a durable partisan advantage is plainly different from a garden-variety partisan motivation.
The Panel’s justification prong, too, bears little resemblance to the Bandemer plurality’s. In its brief remarks on the topic, the Bandemer plurality suggested that it was “the legislation”—not the legislation’s discriminatory effect—that “would be examined for valid underpinnings.” 478 U.S. at 141 (plurality opinion). The Panel, however, made clear that it was “evaluat[ing] whether a plan’s partisan effect is justifiable” given a state’s “legitimate districting goals” and “natural political geography.” App. 178a. The Panel

35 thus properly focused the justification inquiry on the asymmetry exhibited by a plan (as opposed to a plan’s overall form, for which some seemingly neutral explanation can often be mustered).11
D. The Panel’s Test Could Not Have Come as a Surprise to Appellants.
Appellants’ final argument is that they were sandbagged by the Panel’s test, which was supposedly sprung on them after the trial had concluded. J.S. 38-39. This claim is risible. In their pretrial brief, Appellees articulated their proposed approach as follows: “The test’s first prong is whether a plan was enacted with discriminatory intent . . . . The second prong of plaintiffs’ test is discriminatory effect, or whether a plan has exhibited a high and durable level of partisan asymmetry relative to historical norms. . . . The test’s third and final prong is justification, or whether a plan’s severe and durable asymmetry can be ‘justified by the State’ based on its political geography or legitimate redistricting objectives.” Dkt. 134:1-3.
The Panel adopted exactly the same three-pronged approach. In its words, “the First Amendment and the Equal Protection Clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political
11 Appellants assert, without any evidence, that states will never be able to justify their plans’ asymmetries. J.S. 33. But in the analogous one person, one vote context, states have often succeeded in justifying their plans’ population deviations. See, e.g., Brown, 462 U.S. at 844; Mahan, 410 U.S. at 326.

36 affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” App. 109a110a. Plainly, there is no meaningful daylight between these formulations. Both of them set forth the same elements, defined in the same way. If Appellants “trained their fire” on an “academic efficiency-gap approach,” they have only themselves to blame for overlooking Appellees’ actual proposal. J.S. 38-39.
Nor can Appellants profess surprise at the Panel’s emphasis on partisan entrenchment. In its summary judgment opinion, the Panel stated that “[f]ocusing on durability makes . . . sense” and that “durability is an appropriate measure of discriminatory effect.” Dkt. 94:20. The Panel also foreshadowed the intent prong it eventually adopted: “the intent to prevent the minority party from regaining control throughout the life of the districting plan.” Dkt. 94:30. Appellees noticed these not-so-subtle hints and planned their trial strategy accordingly. Appellants could have done the same.

37 CONCLUSION
For the foregoing reasons, the Court should affirm the decision below.
Respectfully submitted,

Paul M. Smith Counsel of Record
CAMPAIGN LEGAL CENTER 1411 K Street NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org

Jessica Ring Amunson JENNER & BLOCK LLP 1099 New York Ave. NW, Ste. 900 Washington, DC 20001 (202) 639-6000 jamunson@jenner.com

Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E 60th St., Suite 510 Chicago, IL 60637 (773) 702-4226 nsteph@uchicago.edu
J. Gerald Hebert Ruth M. Greenwood Danielle M. Lang Annabelle E. Harless CAMPAIGN LEGAL CENTER 1411 K Street NW, Ste. 1400 Washington, DC 20005

Michele Odorizzi MAYER BROWN, LLP 71 S. Wacker Dr. Chicago, IL 60606 (312) 782-0600 modorizzi@mayerbrown.com
Peter G. Earle LAW OFFICE OF PETER G. EARLE 839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202

Douglas M. Poland RATHJE & WOODWARD, LLC 10 E. Doty St., Ste. 507 Madison, WI 53703

 
 No. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS, v.
WILLIAM WHITFORD, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF OPPOSING MOTION TO AFFIRM

BRAD D. SCHIMEL Attorney General
KEVIN M. LEROY LUKE N. BERG Deputy Solicitors General

MISHA TSEYTLIN Solicitor General Counsel of Record
RYAN J. WALSH Chief Deputy Solicitor General

State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

AMY C. MILLER Assistant Solicitor General
BRIAN P. KEENAN Assistant Attorney General

Attorneys for Appellants

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................1
ARGUMENT ...............................................................3
I. A Majority Of This Court Has Already Correctly Held That A Statewide PartisanGerrymandering Claim Is Nonjusticiable .......3
II. A Majority Of This Court Has Already Correctly Held That A Plan That Complies With Traditional Redistricting Principles Is Not An Unlawful Political Gerrymander ....6
III. Neither The District Court’s Nor Plaintiffs’ Approaches Are “Limited And Precise” ...........7
IV. Plaintiffs’ Half-Hearted Suggestion Of Summary Affirmance Is Meritless And Would Throw Numerous Redistricting Plans Into Immediate Doubt .........................13
CONCLUSION ..........................................................14

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TABLE OF AUTHORITIES
Cases Davis v. Bandemer,
478 U.S. 109 (1986)........................................... 1, 8
Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011)....................... 5
Hicks v. Miranda, 422 U.S. 332 (1975)............................................. 14
In re Primus, 436 U.S. 412 (1978)............................................. 13
League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399 (2006)................................. 2, 3, 5, 11
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)............................................... 2, 3
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974)............................................... 4
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016)....................... 5
Steel Co. v. Citizens for Better Env’t, 523 U.S. 83 (1998)................................................. 4
United States v. Jacobsen, 466 U.S. 109 (1984)........................................... 2, 3

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

INTRODUCTION
In their Motion to Affirm, Plaintiffs do not dispute Defendants’ showing that Act 43 would be lawful under any test that any Justice of this Court has ever articulated. JS 37–38. Nor do they defend the district court’s approach, which is built upon the entrenchment concept at the heart of the Davis v. Bandemer, 478 U.S. 109 (1986), plurality’s test. JS 30–34. And they no longer support their principal argument below: that the “efficiency gap” should be the sole test for identifying an impermissible effect. Instead, they now argue for a vague test, under which a plan would have unlawful effect if it failed some unspecified combination of “social scientific measures,” such as “partisan bias,” “efficiency gap,” and “sensitivity testing.” Mot. 19–21. Plaintiffs also have no credible response for Defendants’ argument that affirmance in this case would immediately put at risk one of every three plans drawn by state legislatures in this country. JS 14–15; see generally States Amicus Br. 8–10.
One of the critical reasons that Plaintiffs’ approach runs roughshod over districting plans nationwide is that it disregards two limitations from this Court’s caselaw. First, the majority of the Justices of this Court in Vieth v. Jubelirer, 541 U.S. 267 (2004), concluded that statewide politicalgerrymandering claims are nonjusticiable. JS 21– 25. Second, the majority of Justices in Vieth would not permit a political-gerrymandering claim when

2
the legislature complied with traditional redistricting principles. JS 26–28. Plaintiffs respond that this “theory of precedent”—the theory that lower courts must respect the votes of all of the Justices of this Court—has “yet to occur to this Court.” Mot. 4, 26. But Plaintiffs have no answer for the cases that adopt precisely that “theory”: United States v. Jacobsen, 466 U.S. 109, 115–18 & n.12 (1984), Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 17 (1983), and Justice Kennedy’s treatment of Vieth in League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399, 418 (2006) (plurality op.).
Plaintiffs’ approach is also unlawful because it is not “limited and precise.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment); see JS 30–37. Having now abandoned their indefensible reliance on the efficiency gap as the sole measure of partisan effect, Plaintiffs admit that they have not identified “any particular technique for demonstrating” partisan effect. Mot. 22 (emphasis removed). This is about as candid a concession as possible that Plaintiffs’ test is not “limited and precise.”
The district court’s and Plaintiffs’ disregard for this Court’s binding caselaw makes summary reversal appropriate. Alternatively, given the conceded “importance of the issue,” Mot. 5, merits briefing and argument would be warranted.

3
ARGUMENT
I. A Majority Of This Court Has Already Correctly Held That A Statewide PartisanGerrymandering Claim Is Nonjusticiable
The majority of the Justices in Vieth concluded that statewide partisan-gerrymandering claims are nonjusticiable. JS 21–22. The four-Justice plurality made this specific point, explaining that both they and Justice Stevens concluded that “statewide claims are nonjusticiable.” 541 U.S. at 292. Justice Stevens did not dispute this account. Accordingly, under this Court’s treatment of divided opinions, the district court had no authority to adjudicate Plaintiffs’ statewide claim here. JS 21–23.
Plaintiffs claim that lower courts are free to ignore the votes of Justices of this Court, even when a majority of Justices clearly endorse a particular outcome. Mot. 26. Plaintiffs cite no case to support this approach, which is foreclosed by Jacobsen and Moses H. Cone, as well as Justice Kennedy’s understanding of Vieth as articulated in LULAC. JS 20–21. The fatal flaw in Plaintiffs’ approach can be illustrated by a hypothetical question: could a district court reject a single-district political-gerrymandering claim because, in its view, all political-gerrymandering claims are nonjusticiable? Of course not, because Justice Kennedy and four dissenting Justices concluded to the contrary in Vieth. For the same reason, a district court cannot ignore the conclusion of a

4
majority of the Justices in Vieth and hold that statewide political-gerrymandering claims are justiciable.
Plaintiffs further assert that the Vieth plurality’s decision was that political-gerrymandering claims are “nonjusticiable,” whereas Justice Stevens’ decision was merely based upon “how the claim should operate.” Mot. 26. This is contrary to Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), JS 22–23, which Defendants relied upon and Plaintiffs ignore. Schlesinger explained that “either the absence of standing,” which Justice Stevens found in Vieth, “or the presence of a political question,” which the Vieth plurality found, “suffices to prevent the power of the federal judiciary from being invoked.” Id. at 215.
Plaintiffs’ point that this Court in LULAC did not mention this statewide justiciability issue, Mot. 27, also does not support their position. When the power of a court to adjudicate a claim is “assumed by the parties, and [] assumed without discussion by the Court,” a decision on the merits has “no precedential effect” on the assumption. Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 91 (1998). That is precisely what occurred in LULAC, as Plaintiffs concede. See Mot. 27.1 LULAC is further irrelevant
1 For the same reason, it does not help Plaintiffs that district courts after Vieth have easily rejected statewide claims on

5
here because it dealt with plaintiffs’ proposal to create a bespoke legal test, applicable to “mid-decennial redistricting, when solely motivated by partisan objectives.” 548 U.S. at 416. In contrast, the present case deals with precisely the type of garden-variety statewide gerrymandering claim that the majority of the Justices in Vieth held is nonjusticiable.
Finally, Plaintiffs offer no reason for this Court to permit statewide partisan-gerrymandering claims. As Defendants explained, it makes no sense to allow more broad-based invalidation in the politicalgerrymandering context than this Court has permitted in the racial-gerrymandering context. JS 23–25. Plaintiffs’ only response is to assert, without any support, that “partisan gerrymandering is inherently a statewide activity.” Mot. 4. This is clearly wrong; the plaintiff in Vieth (among others, see, e.g., Shapiro v. McManus, 203 F. Supp. 3d 579, 585 (D. Md. 2016)), brought a single-district claim. Given that plaintiffs in the racial context have no standing to bring statewide challenges, it follows that plaintiffs in the political context also lack such standing.
the merits. See Fletcher v. Lamone, 831 F. Supp. 2d 887, 903– 04 (D. Md. 2011) (collecting cases, while observing that it is uncertain whether plaintiffs have “standing to assert” the claim “at all”).

6
II. A Majority Of This Court Has Already Correctly Held That A Plan That Complies With Traditional Redistricting Principles Is Not An Unlawful Political Gerrymander
Plaintiffs are wrong to defend the district court’s decision to invalidate Act 43 as a partisan gerrymander even though the plan complies with traditional redistricting principles, for much the same reasons discussed above. The majority of the Justices in Vieth would uphold a plan that complies with these principles, which is enough to foreclose a district court from reaching the opposite conclusion. JS 26–27.
Plaintiffs incorrectly seek refuge in the fact that the Vieth plurality criticized Justice Souter’s approach, Mot. 30, under which the defendant must prove noncompliance with traditional redistricting principles as an element of its claim. The plurality simply explained that these principles did not solve the problem of partisan-gerrymandering claims’ nonjusticiability. 541 U.S. at 295–96. Plaintiffs offer no answer to Defendants’ critical point: in cases like this one, where the plan complies with traditional redistricting principles, the plurality would unquestionably combine with other Vieth Justices to reject the claim. Accordingly, district courts must reach the same result.
Plaintiffs’ assertion that Act 43 does not comply with traditional redistricting principles, Mot. 32, is

7
without record support. Before the district court, Defendants made Act 43’s compliance with these principles a core argument, explaining that Act 43 performed as well as court-drawn maps in terms of compactness, contiguity, and respect for politicalsubdivision lines. JS 12, 19. Plaintiffs chose not to make any contrary showing. Plaintiffs’ belated cherry-picking of the number of counties split (while ignoring splits of cities and towns), a miniscule difference in compactness, and one district redrawn due to a violation of the Voting Rights Act, Mot. 32, does not come close to showing Act 43 “paid little or no heed to [] traditional districting principles,” Vieth, 541 U.S. at 348 (Souter, J., dissenting).
III. Neither The District Court’s Nor Plaintiffs’ Approaches Are “Limited And Precise”
Plaintiffs’ assertion that Defendants “barely tr[ied] to argue” that the district court’s test does not state a proper rule for partisan gerrymandering claims, Mot. 4, is bizarre given that Defendants devoted the entirety of Section II of their Jurisdictional Statement to that argument. Defendants’ syllogism on this score is simple and irrefutable: the threeprong test that the district court adopted has no constitutionally relevant distinctions from the Bandemer plurality’s three-prong test, which all nine Justices of this Court rejected in Vieth. JS 30–37.
Plaintiffs’ contrary argument is that, because the district court announced a three-prong approach

8
that included some concepts that this Court has applied in other areas, this must be the correct test. Mot. 17–25. But that is obviously wrong. The Bandemer plurality’s approach involved the same familiar concepts: intent, effects (defined as entrenchment), and justification, JS 30–34, and yet this Court rejected that test in Vieth. The district court’s approach suffers from the same exact infirmity, to the same degree, as did the Bandemer plurality’s test: the test’s three prongs are not a “limited and precise rationale.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). And while Plaintiffs argue for a different approach to the effects prong than the district court adopted, Plaintiffs’ approach is no more “limited and precise.”
As a threshold matter, there is no meaningful difference between the first and third Bandemer prongs—intent and justification—and the district court’s first and third prongs. With regard to intent, Plaintiffs do not explain how it would be logical for a legislature to have the intent that the Bandemer plurality identified (intent to discriminate against “an identifiable political group,” with “substantial political consequences,” 478 U.S. at 127, 129), but lack the intent the district court here condemned (“an intent to entrench a political party in power,” App. 117a). Plaintiffs’ entire response is an ipse dixit that the district court’s intent test is somehow “more rigorous.” Mot. 34. As to justification, Plaintiffs do not (and could not possibly) argue that the Bandemer plurality’s justification prong is less “lim-

9
ited and precise” than the district court’s justification approach. JS 32–33. Both justification inquiries permit the legislature to show that it could not adopt a “better” map if it did not take into account political considerations—a showing that would, as a practical matter, be impossible for partisan legislatures to make, given that politics is always part of legislative map-drawing and a different map is always possible if politics are removed entirely.
Accordingly, the entirety of Plaintiffs’ claim that they have identified the elusive “limited and precise rationale” for discovering unlawful political gerrymanders rests upon their conception of the effects prong. Plaintiffs do not urge this Court to adopt the district court’s effects approach, based on the Bandemer plurality’s entrenchment concept. JS 31– 32. And they no longer defend their core argument below that the efficiency gap should be the sole measure of partisan effect. Plaintiffs “do not ask the Court to endorse any particular measure of partisan asymmetry or any particular technique for demonstrating durability.” Mot. 22 (emphasis altered). Instead, they urge this Court simply to approve the general validity of considering some unspecified brew of “social scientific measures like partisan bias and the efficiency gap,” and “sensitivity testing,” and then leave it to lower courts to figure out the rest in “subsequent litigation.” Mot. 19, 22–23.
Plaintiffs’ “social science” hodgepodge is the antithesis of “limited and precise.” Under this test,

10
each legislatively-drawn plan would be immediately challenged in court by the minority party. See States Amicus Br. 3–11; Wisconsin State Senate And Assembly Amicus Br. 7–10. Then, a trial would be held, where each side would present its own “social scientific” expert(s) and the district court would pick a winner unbounded by what social-science measures it could consider, or how it could weigh differing results from different metrics. That is just what happened here, as the disagreements between the majority and dissent illustrate. Notably, under the particular “social science” that Plaintiffs advocated in this case, one third of all legislatively drawn plans would fail the critical effects test. JS 14–15.2 There would be no way for any legislature to know, ex ante, whether any particular district court would adopt this view of the disputed “social science.”
Contrary to Plaintiffs’ submission, Mot. 20–21, Justice Kennedy’s opinions in Vieth and LULAC directly refute their approach. Justice Kennedy in Vieth sought “a workable standard” that was “limited and precise.” 541 U.S. at 306, 311. There is nothing “workable” or “limited and precise” about a
2 Plaintiffs quibble with this figure, Mot. 23 n.10, but their response boils down to an unsupported claim that legislatures—which are inherently political—will be able to salvage their plans by somehow proving that they were not motivated by politics or be able to “justify” their inherently political mapdrawing judgments by entirely nonpolitical considerations.

11
test based on an unspecified combination of “social science” approaches. And Justice Kennedy in LULAC specifically explained that “asymmetry alone” could “not [serve as] a reliable measure of unconstitutional partisanship,” in the process of rejecting a test urged in an amicus brief submitted by Professors Gary King and Bernard Grofman (among others). 548 U.S. at 419–20. Apparently intending no irony, Plaintiffs rely upon the same professors’ work to argue that their test comports with Justice Kennedy’s LULAC opinion. Mot. 21 & n.9 (citing to Tr. Ex. 333:6, an article written by Professors King and Grofman).
Nor do other Justices’ opinions in Vieth and LULAC, Mot. 20, support Plaintiffs’ approach. Justices Souter and Ginsburg in Vieth argued for a fiveelement test, under which Act 43 is unquestionably lawful, see JS 37, and their tentative nod to possible consideration of social science in LULAC does not disclaim their test, 548 U.S. at 483–84. Justice Stevens in Vieth made clear that he would uphold plans like Act 43, which comply with traditional redistricting principles, see JS 37, and he did not back away from this principle in LULAC when he described one social-science measure as “helpful (though certainly not talismanic),” 548 U.S. at 468 n.9, when discussing the “unique” context of mid-decennial, solemotivation cases, id. at 456. And Justice Breyer in Vieth was concerned with plans under which a majority party (by vote) had “twice failed to obtain a

12
majority” in the legislature, 541 U.S. at 366, which is not at issue here, JS 38.
Finally, Plaintiffs’ claim that Act 43 is somehow an “extreme outlier[]” is wrong. JS 12. Plaintiffs cannot seriously dispute that the election results that have occurred under Act 43 are strikingly similar to those that obtained in the plan that this Court upheld in Bandemer, JS 5, 31–32, as well as the results under the 2002 court-drawn map in Wisconsin (under which Republicans won 58 seats with 50.50% of the vote in 2002, 60 seats with 50% in 2004, 52 seats with 45.25% in 2006, 46 seats with 46% in 2008, and 60 seats with 53.50% in 2010, JS 11). Nor is Plaintiffs’ citation, see Mot. 1, 9, to the district court’s claim that Democrats have no realistic chance to win a majority of the Wisconsin Assembly under Act 43 supported by the record. Even according to the documents that the district court relied upon in making its claim, Democrats would win a majority of seats (50 out of 99) if they obtained just over 53% of the vote, but under 54%, see Tr. Ex. 282; App. 230a—a vote percentage that Democrats exceeded as recently as 2006 and 2008, Dkt. 125 ¶¶ 254–55; see JS 11, and Republicans exceeded in 2010, JS 11.3 And because Plaintiffs below never
3 Given that these numbers come directly from the very analysis that the district court relied upon, App. 150a & n.257 (discussing Tr. Ex. 282), Plaintiffs’ assertion that they would need a vote share “achieved just once by either party over the

13
proposed entrenchment as their test—focusing instead on the efficiency gap—Defendants had no reason to present their own detailed analysis of this issue. JS 38–39.4
IV. Plaintiffs’ Half-Hearted Suggestion Of Summary Affirmance Is Meritless And Would Throw Numerous Redistricting Plans Into Immediate Doubt
Plaintiffs’ oblique claim that this Court could, perhaps, affirm the district court “summarily,” Mot. 5, is meritless. There is no plausible argument that the district court’s decision, with its unprecedented finding of an unlawful political gerrymander, is so obviously correct that Defendants’ appeal presents no “substantial question.” In re Primus, 436 U.S. 412, 414 (1978). More generally, since summary affirmances by this Court are binding upon lower
last generation” in order to gain a majority in the Assembly under Act 43, Mot. 8, is extremely puzzling.
4 Plaintiffs’ claim, Mot. 36, that Defendants had sufficient notice that entrenchment would be a significant issue in this case—based upon a line in the district court’s summaryjudgment opinion stating this concept “makes some sense,” Dkt. 94:20—overlooks the fact that the district court issued that opinion more than three months after Defendants’ expert deadline had passed, compare Dkt. 33:2, with Dkt. 94. Plaintiffs do not cite a single word in any of their own filings focusing on this topic.

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courts, see Hicks v. Miranda, 422 U.S. 332, 344 (1975), such an approach in this case would throw States across the country into chaos, given that up to one third of all plans drawn by legislatures are vulnerable under the district court’s test, see supra p. 1.
CONCLUSION
This Court should note probable jurisdiction. This Court may also wish to consider summary reversal.

15 Respectfully submitted,

BRAD D. SCHIMEL Attorney General
KEVIN M. LEROY LUKE N. BERG Deputy Solicitors General
State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

MISHA TSEYTLIN Solicitor General Counsel of Record
RYAN J. WALSH Chief Deputy Solicitor General
AMY C. MILLER Assistant Solicitor General
BRIAN P. KEENAN Assistant Attorney General
May 2017

 
 No. 16-1161
In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS, v.
WILLIAM WHITFORD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR APPELLANTS

BRAD D. SCHIMEL Attorney General

MISHA TSEYTLIN Solicitor General Counsel of Record

KEVIN M. LEROY Deputy Solicitor General

RYAN J. WALSH Chief Deputy Solicitor General

State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

AMY C. MILLER Assistant Solicitor General
BRIAN P. KEENAN Assistant Attorney General

Attorneys for Appellants

QUESTIONS PRESENTED
1. Did the district court lack jurisdiction over this case because Plaintiffs have no standing to bring their statewide partisan-gerrymandering claims?
2. Did the district court lack jurisdiction over this case because statewide partisan-gerrymandering claims are nonjusticiable?
3. Did Plaintiffs fail to state a claim on which relief can be granted because they failed to articulate a “limited and precise” standard, Vieth v. Jubelirer, 541 U.S. 267, 306, 311 (2004) (Kennedy, J., concurring in the judgment)?
4. Are Defendants entitled to judgment because Act 43 complies with traditional redistricting principles and is otherwise unobjectionable?
5. Are Defendants entitled, at the very minimum, to a remand so that they can present evidence under a fairly noticed legal standard?

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PARTIES TO THE PROCEEDING
The following were parties in the court below:
Plaintiffs:
William Whitford, Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, and Donald Winter;
Defendants:
Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Jodi Jensen (substituted for her predecessor, Don Millis), and Mark L. Thomsen, in their official capacities.

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TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii INTRODUCTION .......................................................1 OPINIONS BELOW....................................................4 JURISDICTION ..........................................................5 CONSTITUTIONAL PROVISIONS
INVOLVED .............................................................5 STATEMENT ..............................................................5
A. Political Gerrymandering In Early American History ........................................5
B. Wisconsin’s General Assembly, From Wisconsin’s Founding To Act 43...............10
C. Procedural Background ............................17 SUMMARY OF ARGUMENT...................................22 ARGUMENT .............................................................26
I. The District Court Lacked Jurisdiction ........26 A. Plaintiffs Have No Standing To Bring Their Statewide Claims ............................27

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B. Plaintiffs’ Challenge To Act 43 As An Unlawful Statewide Gerrymander Presents A Nonjusticiable Controversy ...34
II. Plaintiffs Failed To State A Claim Because They Did Not Offer A “Limited And Precise” Test For Adjudicating Their Allegations.......41
III. Act 43 Is Lawful Because It Complies With Traditional Redistricting Principles And Is Otherwise Unobjectionable ............................59
CONCLUSION ..........................................................67

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TABLE OF AUTHORITIES
Cases Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015)..................................passim
Baker v. Carr, 369 U.S. 186 (1962)....................................... 12, 33
Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) ................ 14
Baumgart v. Wendelberger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471 (E.D. Wis. May 30, 2002) ........................ 13, 38, 65
Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017)........................................... 62
Bush v. Vera, 517 U.S. 952 (1996)............................................. 28
Chapman v. Meier, 420 U.S. 1 (1975)........................................... 10, 40
Cooper v. Harris, 137 S. Ct. 1455 (2017)................................. 1, 6, 29
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)............................................. 60
Davis v. Bandemer, 478 U.S. 109 (1986)......................................passim

vi
Gaffney v. Cummings, 412 U.S. 735 (1973)................................. 51, 61, 63
Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301 (2016)......................................... 60
Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976)............................................. 53
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)......................................passim
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)......................................passim
Marston v. Lewis, 410 U.S. 679 (1973)............................................. 31
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)........................................... 27, 60
Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014)......................................... 57
Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017)........................................... 62
Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis. 1992) .................... 13
Republican Party of Wis. v. Elections Bd., 585 F. Supp. 603 (E.D. Wis. 1984) ..................... 12

vii
Reynolds v. Sims, 377 U.S. 533 (1964)............................................. 47
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974)............................................. 27
Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016)..................... 34
Shaw v. Reno, 509 U.S. 630 (1993)....................................... 28, 61
Steel Co. v. Citizens for Better Env’t, 523 U.S. 83 (1998)............................................... 33
United States v. Hays, 515 U.S. 737 (1995)................................. 29, 30, 31
United States v. Jacobsen, 466 U.S. 109 (1984)....................................... 27, 60
Vieth v. Jubelirer, 541 U.S. 267 (2004)......................................passim
Wis. Elections Bd. v. Republican Party of Wis., 469 U.S. 1081 (1984)........................................... 12
Wis. ex rel. Attorney Gen. v. Cunningham, 51 N.W. 724 (Wis. 1892) ..................................... 12
Wis. ex rel. Lamb v. Cunningham, 53 N.W. 35 (Wis. 1892) ....................................... 12

viii
Wis. ex rel. Reynolds v. Zimmerman, 128 N.W.2d 16 (Wis. 1964) ................................. 12
Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630 (E.D. Wis. 1982) ..................... 12
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012)..................................... 34
Constitutions U.S. Const. amend. I .................................................. 5
U.S. Const. amend. XIV ............................................. 5
Wis. Const. art. IV, § 3 ............................................. 10
Wis. Const. art. IV, § 4 ............................................. 10
Wis. Const. art. IV, § 5 ............................................. 10
Statutes and Rules 2011 Wisconsin Act 43 ......................................passim
28 U.S.C. § 1253 ......................................................... 5
Act of April 20, 1836, ch. 54, 5 Stat. 10 ................... 11
Fed. R. Civ. P. 12...................................................... 41
Wis. Stat. § 4.001 ..................................................... 11
Other Authorities 37 Ohio Archaeological and Historical
Publications (1928) ............................................... 9

ix
A Horrible Democratic Plot, Daily Milwaukee News, March 17, 1869 .................................. 10, 11
Brief of Amici Curiae Profs. Gary King et al., League of United Latin Am. Voters v. Perry, 548 U.S. 399 (2006) (Nos. 05-204, 05-254, 05276, 05-439), 2006 WL 53994 ............43, 44, 47, 48
Daily Ohio St. J. (Columbus, August 12, 1842) .......................................................... 9, 61
Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301 (1991) ....................... 61
Democratic Gains in Indiana, The Age: Philadelphia (May 22, 1868) .............................. 10
Edward B. Foley, Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws, 84 U. Chi. L. Rev. 655 (2017) ................... 6, 38, 61
Edward B. Foley, The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. & Legal Theory Working Paper Series No. 401 (July 10, 2017) ........................................................ 34, 37
Elmer C. Griffith, The Rise And Development Of The Gerrymander (1907) .............................passim

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Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (2013)....................................................... 6, 7, 8, 10
Five Democratic Congressmen, New Harmony Reg., Oct. 24, 1868 .............................................. 10
How the Radical Majority in Congress is Manufactured, Rockingham Reg. and Va. Advertiser, Nov. 1, 1866 ..................................... 10
James T. Austin, The Life of Elbridge Gerry (1829)..................................................................... 8
Jenni Salamon, Ohio’s 1842 Election: Absquatulators vs. Gerrymanderers, Ohio Memory, Sept. 6, 2013 ...................................... 8, 9
Jerrold G. Rusk, A Statistical History of the American Electorate (2001) .................................. 8
John Russell Bartlett, Dictionary of Americanisms 248 (4th ed. 1877) ......................... 5
Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239 (2013)................................... 51
Library of Congress, Essex County; Worcester County ................................................................... 7

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Mass. Historical Soc’y, The Gerry-Mander. A new species of Monster which appeared in Essex South District in Jan. 1812 .................................. 7
Michael Keane, Redistricting in Wisconsin (April 1, 2016) .......................................................... 11, 12
Nat’l Conference of State Legislatures, Redistricting Law 2010, November 2009........... 38
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering And The Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) ....................... 17, 48
Peter Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240 (B. Grofman ed., 1990)................................. 39
The Gerry-Mander, or Essex South District Formed Into A Monster!, Salem Gazette, April 2, 1813 ................................................................... 6
William A. Craigie and James R. Hulbert, 2 A Dictionary of American English (1940) ......... 5
Wisconsin, Waukesha Plaindealer (Nov. 26, 1867) .................................................... 11

INTRODUCTION
A divided three-judge district court became the first court in decades to invalidate a redistricting plan on partisan-gerrymandering grounds. The plan that the court struck down—Act 43—complies with traditional redistricting principles and does not meaningfully differ from the immediately prior, court-drawn map in terms of election outcomes. As the dissent below explained, the only way that Wisconsin Republicans could have achieved Plaintiffs’ desired partisan results would have been to “engage in heroic levels of nonpartisan statesmanship,” purposefully abandoning their advantage under the court-drawn plan. J.S. App. 245a.
While Plaintiffs in their Motion to Affirm before this Court did not defend the district court’s core reasoning, they continued to argue that Act 43 is unlawful because the Legislature engaged in too much partisanship. But “[p]artisan gerrymandering dates back to the founding.” Cooper v. Harris, 137 S. Ct. 1455, 1488 (2017) (Alito, J., concurring in the judgment in part and dissenting in part). Although “some might find [this practice] distasteful, [this Court’s] prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering.” Id. (citation omitted). Plaintiffs seek to overturn this centuries-old status quo, thereby “commit[ting] federal and state courts to unprecedented intervention in the American political process.” Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J.,

2
concurring in the judgment). Plaintiffs seek to impose this change without identifying any historically grounded “comprehensive and neutral principles,” id. at 306–08, and while simply repeating arguments that this Court has already rejected.
The massive “intervention” that Plaintiffs urge this Court to authorize is “unprecedented.” Id. at 306. Under the approach they advocated in their Motion to Affirm, whenever a politically minded body draws electoral boundaries—whether for House of Representatives seats, the state legislature, or a local water district—any displeased voter in the State (even one living in a district not altered by the new map) can file a lawsuit in federal court, seeking invalidation of the entire map. In that lawsuit, the plaintiff would need only rely upon one or more of any number of developing “social science” metrics, ranging from the “efficiency gap” to “mean-median difference” calculations to “sensitivity testing” to as-yet unidentified theorems. See Mot. to Affirm 10, 12 n.4, 21 n.8. The district court would then compare the outputs of these cherry-picked metric(s) with the outputs of whatever metric(s) the defendants favored and then (somehow) decide, in the name of the Constitution, whether there has been “too much” partisanship. See League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 420 (2006) (plurality op.). This Court was not impressed with a virtually identical multi-metric argument in LULAC, when that argument was presented by certain law professors in an amicus brief. Id.

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Notably, under the metric that Plaintiffs favored below, one out of every three legislative maps over the last 45 years would have had too much partisan effect. And this actually understates the breadth of what Plaintiffs urge this Court to adopt, as other plaintiffs could attack the remaining maps simply by relying upon other academic formulas thought to “exploit recent conceptual and methodological advances in the social sciences.” Mot. to Affirm 21.
Plaintiffs’ approach is thus not “limited and precise” under any reasonable understanding of that standard, meaning that Defendants are entitled to judgment. See Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). More generally, that Plaintiffs can offer nothing better than their socialscience hodgepodge aptly shows that the “weighty arguments for holding cases like these to be nonjusticiable” have now “prevail[ed].” Id. at 309 (Kennedy, J., concurring in the judgment). It has been more than three decades since Davis v. Bandemer, 478 U.S. 109 (1986), and yet no party or court has identified any “comprehensive and neutral principles for drawing electoral boundaries,” let alone a limited and precise test to enforce those principles, see Vieth, 541 U.S. at 306–08 (Kennedy, J., concurring in the judgment).
Plaintiffs would also create an unthinkable imbalance in this Court’s standing doctrine, making allegations of partisan gerrymandering more legally powerful than claims even of racial gerrymandering. Plaintiffs based their standing on the assertion that a

4
voter living in any district in a State can challenge a map on a statewide basis. That is contrary to this Court’s racial-gerrymandering caselaw, which holds that a voter can challenge only that voter’s own district and cannot attack a map “as an undifferentiated whole.” Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015) (citation omitted). The result of Plaintiffs’ rejection of that principle in the political context would be to favor partisanship-based claims over race-based claims.
This Court should reverse the district court and hold that Plaintiffs’ lawsuit must be dismissed.
OPINIONS BELOW
The opinion and order of the panel of the United States District Court for the Western District of Wisconsin, entered on November 21, 2016 (J.S. Appendix A), are reported at 218 F. Supp. 3d 837. The district court’s opinion and order permanently enjoining the use of Act 43, entered on January 27, 2017 (J.S. Appendix B), are unreported, but are available at 2017 WL 383360. The district court’s judgment, entered on January 27, 2017 (J.S. Appendix C), amended judgment, entered on February 22, 2017 (J.S. Appendix D), and corrected amended judgment, entered on March 15, 2017 (J.S. Appendix E), are unreported.

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JURISDICTION
Defendants filed their notice of appeal on February 24, 2017 (J.S. Appendix F), and their amended notice of appeal on March 20, 2017 (J.S. Appendix H). This Court has statutory jurisdiction to consider this appeal under 28 U.S.C. § 1253. However, as explained below, the federal courts lack jurisdiction over Plaintiffs’ lawsuit. See infra Argument Part I.
CONSTITUTIONAL PROVISIONS INVOLVED
This appeal involves the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, reproduced at J.S. App. 345a–47a.
STATEMENT
A. Political Gerrymandering In Early American History
As historically understood, a partisan gerrymander is a map drawn “without any apparent regard to [the] convenience or propriety” of the districts, John Russell Bartlett, Dictionary of Americanisms 248 (4th ed. 1877), creating “irregularly shaped election district[s]” for partisan advantage, William A. Craigie and James R. Hulbert, 2 A Dictionary of American English 1114–15 (1940) (citing 1816 source material); accord The Gerry-Mander, or Essex South District Formed Into A Monster!, Salem Gazette (April 2,

6
1813) (first public use of “gerrymander”);1 see generally Edward B. Foley, Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws, 84 U. Chi. L. Rev. 655, 710– 21 (2017). This practice “dates back to the founding.” Cooper, 137 S. Ct. at 1488 (Alito, J., concurring in the judgment in part and dissenting in part); accord Elmer C. Griffith, The Rise And Development Of The Gerrymander 26 (1907); Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 21–22 (2013).
In the 1789 redistricting of the New York Legislature, for example, the Federalist Party “unnecessarily divided a county by lopping off [ ] towns” into different districts to “secur[e] to their party the control of the new government [ ] provided for” in the federal Constitution. Griffith, supra, at 42–43. The Legislature also engaged in similar tactics in 1801, 1802, 1804, 1808 (with some districts that year not even connected), and again in 1812. Id. at 56–61, 77–79.
In 1812, Massachusetts Democratic-Republicans completed the “notoriously outrageous political districting” from which gerrymandering received its name. Vieth, 541 U.S. at 274–75 (plurality op.). This plan created districts of “fantastic shapes,” “separat[ing]” some towns and “isolat[ing]” others from
1 Available at https://digital.library.cornell.edu/catalog/ ss:3293783.

7 “their proper counties” to boost Democratic-Republican political fortunes. Griffith, supra, at 16–17; Engstrom, supra, at 39. The “most distorted contour” was “[t]he outer district of Essex county.” Griffith, supra, at 17. Someone “proposed the term salamander” for the figure, which was then combined with the last name of Massachusetts Governor Elbridge Gerry, who “had allowed the [redistricting] bill to become a law,” to create the portmanteau “gerrymander.” Griffith, supra, 17.2
2 Images available at: Library of Congress, Essex County; Worcester County, https://www.loc.gov/item/95683218; Mass. Historical Soc’y, The Gerry-Mander. A new species of Monster which appeared in Essex South District in Jan. 1812, http://www.masshist.org/database/1765.

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After the enactment of this map, the “Federalists [still] won 80 percent of the House seats in the 1812 election and recaptured control of the state legislature.” Engstrom, supra, at 39; Jerrold G. Rusk, A Statistical History of the American Electorate 235 (2001). After Governor Gerry himself lost, James T. Austin, The Life of Elbridge Gerry 377–78 (1829), “the new Federalist majority [then] set about remapping [Massachusetts’s] congressional districts to further enhance the prospects of Federalist congressional candidates in the 1814 election.” Engstrom, supra, at 39.
In 1842, Ohio Democrats introduced a gerrymandered redistricting plan in a special legislative session. Griffith, supra, at 118; Jenni Salamon, Ohio’s 1842 Election: Absquatulators vs. Gerrymanderers, Ohio Memory, Sept. 6, 2013.3 The plan “grouped counties along the Ohio river in the coal region in a partisan manner,” which became known to the public
3 Available at http://www.ohiohistoryhost.org/ohiomemory/ archives/1333.

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through a local paper publishing cartoons in the spirit of the “original” gerrymander, Griffith, supra, at 118:4
Whig representatives absconded to defeat a quorum and published a defense of their actions in their party newspaper, along with a critique of the gerrymander: “It needs only a glance at the map to see how far contiguity of territory has been regarded in the formation of this bill. It has not only not been regarded; it has been most grossly disregarded.” Daily Ohio St. J. (Columbus, August 12, 1842);5 Salamon, supra. While they prevented enactment of the plan, the Whigs lost at the polls. Salamon, supra. Ohio “has since been very frequently and effectively gerrymandered.” Griffith, supra, at 118.
4 Image available at: 37 Ohio Archaeological and Historical Publications 528 (1928) (reproduction of a newspaper), https://archive.org/stream/ohioarchologic37ohio#page/n547/ mode/2up.
5 Available at http://www.ohiomemory.org/cdm/fullbrows er/collection/p16007coll22/id/17513/rv/compoundobject/cpd/17516.

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In 1852, the Democratic Party of Indiana “carved the state into a remarkable 10 (out of 11) Democratic districts despite only garnering 53 [or 54] percent of the statewide vote.” Engstrom, supra, at 9, 105. The following election, however, Democrats’ vote share dropped to 46%, resulting in a win of only two districts due to the thin margins built into the gerrymandered map. See id. at 120–21.
Similar practices continued in the post–Civil War era. See generally Engstrom, supra, at 9, 89. Pennsylvania Republicans gerrymandered in 1866. How the Radical Majority in Congress is Manufactured, Rockingham Reg. & Va. Advertiser, Nov. 1, 1866. Indiana Radical Republicans engaged in an “unblushing gerrymander” in 1868. Five Democratic Congressmen, New Harmony Reg., Oct. 24, 1868; Democratic Gains in Indiana, The Age: Philadelphia (May 22, 1868). And prior to the 1870 elections, Ohio Republicans engaged in “a scheme to gerrymander the state.” A Horrible Democratic Plot, Daily Milwaukee News, March 17, 1869.
B. Wisconsin’s General Assembly, From Wisconsin’s Founding To Act 43
1. Wisconsin assigns to the Legislature the responsibility for creating the State’s voting districts, subject to certain controlling principles. Wis. Const. art. IV, §§ 3–5; accord Chapman v. Meier, 420 U.S. 1, 27 (1975) (“reapportionment is primarily the duty and responsibility of the State through its legislature or

11
other body, rather than of a federal court”). The Act creating the Wisconsin Territory provided for the election to both houses of the territorial legislature from multi-member districts. See Act of April 20, 1836, ch. 54, 5 Stat. 10, § 4. The Wisconsin Constitution jettisoned the multi-member regime, requiring single-district elections. Wis. Const. art. IV, § 4. Each district must “be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be as compact in form as practicable.” Id. The districts of the upper house, the State Senate (not at issue here), must be “composed of 3 assembly districts,” Wis. Stat. § 4.001, and “no assembly district shall be divided in the formation of a senate district,” Wis. Const. art. IV, § 5. Assembly districts must also be equal in population. See Wis. Const. art. IV, § 3.
The Wisconsin Legislature engaged in partisan gerrymandering early in the State’s history. See A Horrible Democratic Plot, supra; Wisconsin, Waukesha Plaindealer (Nov. 26, 1867). In 1868, the “[R]epublican legislature” “gerrymandered” the congressional districts to ensure that 5 of 6 Wisconsin House of Representative members were Republicans. Id. When Democrats gained control of the Assembly, they employed similar measures. In the early 1890s, after Wisconsinites elected a Democratic Governor and Democratic majorities in the Assembly and Senate, Democrats used their newly won power to fracture 15 Assembly districts and split 20 counties for partisan gain. Michael Keane, Redistricting in Wisconsin 7 (April 1, 2016). The Wisconsin Supreme

12
Court invalidated the plans on state-law grounds. See generally Wis. ex rel. Attorney Gen. v. Cunningham, 51 N.W. 724 (Wis. 1892); Wis. ex rel. Lamb v. Cunningham, 53 N.W. 35 (Wis. 1892). The Legislature then rushed a redistricting plan into effect 12 days before the election, under which Republicans soon retook the Legislature. Keane, supra, at 7.
From the 1960s through the 1990s, Wisconsin’s political branches often failed to agree on districting maps, thereby forcing federal courts to draw Assembly maps. Following this Court’s decision in Baker v. Carr, 369 U.S. 186 (1962), the Wisconsin Supreme Court drew the State’s legislative districts after the Legislature and Governor were unable to agree on a plan. Wis. ex rel. Reynolds v. Zimmerman, 128 N.W.2d 16 (Wis. 1964). After the 1970 census, Wisconsin’s political branches reapportioned the Assembly districts. Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630, 631 (E.D. Wis. 1982). Following the 1980 census, a federal district court drafted its own redistricting plan after the Governor vetoed the Legislature’s proposed plan. Id. at 632, 638–39. When Democrats won the Governor’s office in the 1982 election, the Democratic Legislature and Governor passed new Assembly districts, which were in force through the end of the decade after temporarily being stayed by the courts. See Republican Party of Wis. v. Elections Bd., 585 F. Supp. 603, 604 (E.D. Wis. 1984), vacated sub nom. Wis. Elections Bd. v. Republican Party of Wis., 469 U.S. 1081 (1984); JA209–10. Federal courts again drew Wisconsin’s Assembly districts for

13

the 1990s, after the Republican governor vetoed the Democratic Legislature’s plan. Prosser v. Elections Bd., 793 F. Supp. 859, 862, 871 (W.D. Wis. 1992).

Following the 2000 census, a federal court again drew Assembly districts due to split control of the two houses of the Legislature. See Baumgart v. Wendelberger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471, at *1 (E.D. Wis. May 30, 2002). The court drew its plan “in the most neutral way it could conceive—by taking the 1992 plan as a template and adjusting it for population deviations.” Id. at *7. The two-party election results under the 2002 plan were as follows:

Election Year

Republican Vote Share

2002

50.50%

2004

50.00%

2006

45.25%

2008

46.00%

2010

53.50%

See JA219–20, 223–24.

Republican Seats 58 60 52 46 60

2. The Legislature drew the map at issue here— 2011 Wisconsin Act 43 (“Act 43”)—after Republicans won control of the Legislature and Governorship in the 2010 election. JA248.

The Legislature assigned primary drafting responsibility to two legislative staffers and a former legislator. Dkt. 125 ¶¶ 17–20; Dkt. 119-8; Dkt. 147:46. Professor Ronald Keith Gaddie and retained

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lawyers assisted in this process. Dkt. 125 ¶¶ 19–20; Dkt. 147:152–53. The staffers focused on creating various draft maps that complied with the Voting Rights Act (VRA), equal-population requirements, and traditional districting principles, while also taking politics into account. Dkt. 147:152–62; Dkt. 148:83–86. The goal was to create proposed regional alternatives for the Legislative leadership to consider. Dkt. 147:162–65; Dkt. 148:94–98.
To comply with the VRA, the staffers paid special attention to Milwaukee’s Assembly districts. Dkt. 147:152–53; Dkt. 148:75–76. After Professor Gaddie and the lawyers had signed off on the Milwaukee districts, the staffers “locked these districts” and then worked on maps of other areas of the State. Dkt. 148:77–78.6
Having locked in the Milwaukee-area districts, the staffers then drew various draft maps that complied with equal-population requirements, traditional redistricting principles, and state laws. Dkt. 147:153–57; Dkt. 148:83–86. The staffers drafted maps that were compact and contiguous by drawing “reasonably configured” districts, sought to avoid pairing incumbents, and tried to minimize delayed voting, also called “disenfranchisement,” of voters
6 A district court later rejected most challenges to Act 43, except for one under the VRA. See Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) (per curiam).

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shifted between Senate districts. Dkt. 148:83–86; Dkt. 147:155–59.
The staffers also considered the political implications of their various draft maps, using a tool they called the “composite score.” This score is a snapshot of the partisan preferences of Assembly district voters, derived from averaging statewide races from 2004 through 2010 (President, U.S. Senate, Governor, Attorney General, Treasurer, and Secretary of State). Dkt. 147:121–29. This score did not purport to project, with any degree of precision, future Assembly elections; as an average of statewide races, it took no account of incumbency, candidate strength, or other Assembly-district-specific factors.
After completing their VRA, population-equality, traditional-redistricting-principles, and political analyses for their draft maps, the staffers presented portions of their various draft maps, by region, to legislative leadership, who then selected the preferred approach for each region. Dkt. 147:162–65; Dkt. 148:94–99. The drafters combined these regions into a single map, and then legislative leadership and one of the staffers met with each Republican member of the Assembly to discuss their district. Dkt. 147:165– 68; Dkt. 148:101–02. The Legislature then adopted the map, after some minor adjustments, as Act 43. See Dkt. 148:110–17. As discussed in more detail below, see infra pp. 56–58, the district court drew a significant negative inference from the fact that, under Dr. Gaddie’s swing analysis of Act 43, Democrats

16
were projected to win a majority of seats only after they managed to win more than 53% of the statewide Assembly vote (a vote total that they had achieved in two of the three elections leading up to Act 43). See J.S. App. 149a–50a & n.257; JA223–24.
Act 43 is generally consistent with the 2002 courtdrawn map in terms of compactness, municipal splits, and population equality. Act 43’s compactness scores are comparable to the 2002 court-drawn plan: Act 43 had a smallest-circle score of 0.39 and a perimeter-toarea score of 0.28, whereas the 2002 court-drawn plan had a smallest-circle score of 0.41 and a perimeter-toarea score of 0.29.7 JA214–15. Act 43 split 62 municipalities, compared to 50 splits in the 2002 plan. JA215–16. Act 43 had better population equality than the 2002 court-drawn map, with a deviation of 0.76% under Act 43, compared to 1.59% under the 2002 plan. JA212–13. Further, Act 43 avoided incumbent pairings where possible, with 22 total legislators paired, split evenly between Republicans and Democrats. Dkt. 148:87.
7 The “perimeter-to-area score, which compares the relative length of the perimeter of a district to its area, and the smallest circle score, which compares the ratio of space in the district to the space in the smallest circle that could encompass the district,” are the “two standard measures of compactness.” LULAC, 548 U.S. at 455 n.2 (2006) (Stevens, J., concurring in part, dissenting in part).

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Two elections occurred under Act 43 before Plaintiffs filed their lawsuit. In the 2012 elections, Republicans won 60 out of 99 seats in the Assembly with 48.6% of the statewide two-party vote. See JA219–20, 224. In the 2014 elections, the Republicans won 63 of 99 seats in the State Assembly with 52% of the statewide two-party vote. See JA219–20, 224.
C. Procedural Background
1. In July 2015, Plaintiffs filed a complaint in the Western District of Wisconsin, alleging that Act 43 violated the First and Fourteenth Amendments. JA25– 65. Plaintiffs are 12 individual voters from 11 of the State’s 99 Assembly districts. JA153–55. Their complaint rested upon “a new test,” the so-called “efficiency gap.” JA28–29 (emphasis omitted). This is a concept recently developed by a professor (co-counsel for Plaintiffs) and a research fellow in a law-review article. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering And The Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015). The theory assumes all votes cast for a winning candidate above those needed for victory are “wasted” votes that show “packing,” while all votes cast for losing candidates are wasted votes that show “cracking.” JA28–29. Plaintiffs contended that a plan that exceeded a 7% gap was unlawful unless the State could justify this gap. JA58–60. The district court denied Defendants’ motion to dismiss this complaint, holding that “current law does not foreclose plaintiffs’ claims,” but did

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not set out the legal standard to which discovery and expert reports in the case should be tailored. JA102.
The district court thereafter rejected Defendants’ motion for summary judgment. In their motion, Defendants had argued, among other things, that the efficiency gap was not a lawful standard. Dkt. 46. In response, Plaintiffs focused on how the efficiency gap should form the basis of a legal test. Dkt. 68. Plaintiffs, however, obliquely suggested that “the Court could require a different measure of partisan symmetry, such as partisan bias, to be used instead of or in addition to the efficiency gap.” Dkt. 68:48. Notably, Plaintiffs disclaimed reliance on “minority party entrenchment” as foreclosed by this Court’s precedent. Dkt. 68:56. In their reply, Defendants strenuously objected to Plaintiffs’ request that the district court “develop a standard not put forward by the plaintiffs to date” because Defendants would have no opportunity to contest that yet-to-be developed standard. Dkt. 73:23. In denying Defendants’ summary judgment motion, the district court concluded that “there is a genuine dispute on the question whether a large efficiency gap is a strong indicator of a discriminatory effect,” but refused to explain whether Plaintiffs’ proposed efficiency-gap test would govern. Dkt. 94:15.
2. The trial took place in May 2016, with the focus of the evidence and argument regarding Act 43’s allegedly partisan effects being on the efficiency gap.

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Four fact witnesses testified first. William Whitford, the lead plaintiff, admitted that Act 43 had not affected his ability to elect a Democratic representative, but complained that Act 43 harmed his “ability to engage in campaign activity to achieve a majority.” Dkt. 147:36–37. The two legislative staffers and Gaddie (via videotaped deposition) testified about creating Act 43. Dkt. 147:40–203; Dkt. 148:5–133.
Plaintiffs offered two expert witnesses, Professors Kenneth Mayer and Simon Jackman, who focused their testimony largely on the efficiency gap. Dkt. 148:136–295; Dkt. 149:5–141, 143–291. Mayer calculated an efficiency gap of 11.69% for Act 43 in 2012, but did not calculate a gap for 2014. See Pls. Ex. 2, at 45, 54, Dkt. 147:7–8, Dkt. 148:136–37. Mayer also testified about his Demonstration Plan, an alternative plan specifically designed to produce a lesser efficiency gap. See Dkt. 148:143. Mayer briefly testified about his “uniform swing analysis,” Dkt. 149:92–93, discussed in more detail below, see infra p. 58. Professor Jackman, in turn, testified about his analysis of the efficiency gaps seen in 41 States’ legislative elections from 1972 to the present. See J.S. App. 48a, 163a; Dkt. 149:149–52. In Jackman’s analysis, 34% of plans had an efficiency gap over 7% in their first election and 16% had an initial efficiency gap over 10%. JA193. Jackman’s analysis showed a sharp turn in the efficiency gap in Republicans’ favor starting in the 1990s, including in Wisconsin. Dkt. 149:250–54; Pls. Ex. 34, at 45, Dkt. 147:7–8, Dkt. 149:148.

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Defendants offered Sean Trende and Professor Nicholas Goedert as expert witnesses, who also focused largely on the efficiency gap. Dkt. 150:5–143, 144–252. Trende testified that the efficiency gap was flawed for numerous reasons, including because it fails to account for Wisconsin’s political geography favoring Republicans. See Dkt. 150:66–70, 74–86. Professor Goedert explained that the efficiency gap would improperly codify a hyper-proportional relationship between seats and votes. Dkt. 150:144, 169–70.
3. On November 21, 2016, a divided three-judge district court invalidated Act 43. J.S. App. 1a–315a. The majority adopted a three-part legal standard based upon a discriminatory intent, discriminatory effects, and justification inquiry, built around the concept of entrenchment. J.S. App. 3a–4a, 109a–10a. The court also held that Plaintiffs had standing to challenge Act 43 on a statewide basis. J.S. App. 219a– 22a.
The majority ultimately held that Act 43 was unlawful under its newly announced test. On discriminatory intent, the court concluded that “an intent to entrench a political party in power signals an excessive injection of politics into the redistricting process,” J.S. App. 117a (emphasis added). Given that Act 43 was drawn by a Republican legislature, this test was easily satisfied. J.S. App. 126a–45a. As to partisan effect, the Court held that Act 43 was unlawful because “it secured for Republicans a lasting Assembly

21
majority”; that is, the district court found impermissible effect based upon entrenchment. J.S. App. 145a. The district court reached this conclusion by looking primarily to “the swing analyses performed by Professors Gaddie and Mayer.” J.S. App. 145a–46a. As to the efficiency gap, the district court rejected Plaintiffs’ core request to make this the definitive effects test, but held that Act 43’s efficiency gaps “bolstered” the court’s partisan effect holding. J.S. App. 159a. Finally, having found the first two elements of its test met, the court held that Act 43’s political results could not be “justified” based on its compliance with traditional redistricting principles or by Wisconsin’s political geography. J.S. App. 177a–218a.
Judge Griesbach dissented, explaining that, among many other defects, the majority’s approach required Republicans “to engage in heroic levels of nonpartisan statesmanship,” drawing the new map to neutralize their advantage under the 2002 courtdrawn plan. J.S. App. 245a–46a. The dissent further objected to invalidating Act 43 because, as all the parties and the court agreed, “Act 43 does not violate any of the redistricting principles that traditionally govern the districting process.” J.S. App. 250a–51a.
4. On January 27, 2017, the district court enjoined Defendants from using Act 43 and ordered that a new plan be adopted by November 1, 2017. App. 323a. On June 19, 2017, this Court granted Defendants’ application for a stay, and agreed to hear the case on the merits, while postponing consideration of jurisdiction.

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SUMMARY OF ARGUMENT
I. As a majority of the Justices of this Court concluded in Vieth, federal courts lack jurisdiction to adjudicate statewide political-gerrymandering claims. See 541 U.S. at 305–06 (plurality op.); id. at 327–28 (Stevens, J., dissenting). These Justices were correct on both standing and justiciability grounds.
A. Plaintiffs, individual voters in 11 of Wisconsin’s Assembly districts, lack standing to challenge Act 43 on a statewide basis because they could only possibly suffer concrete, particularized harm in their specific districts. Even in a racial-gerrymandering case, a plaintiff only has standing to challenge the plaintiff’s own district, not the entire map “as an undifferentiated whole.” Ala. Legislative Black Caucus, 135 S. Ct. at 1265–66. This rationale applies directly to political-gerrymandering claims. A Wisconsin voter like the lead plaintiff in this case only has a concrete and particularized interest in the district where he lives and votes. He has no standing to challenge other Wisconsin Assembly districts or other House of Representatives districts (including districts in other States), on the theory that he wants more Democrats for his Assembly or House member to caucus with.
A contrary conclusion would lead to an unthinkable and perverse loophole in this Court’s standing doctrine. Given that plaintiffs may not bring statewide racial-gerrymandering claims, see Ala. Legislative Black Caucus, 135 S. Ct. at 1265–66, permitting such

23
claims in the political-gerrymandering context would favor politics-based claims over allegations that the legislature acted with improper racial motives.
B. Plaintiffs’ statewide claims also present a nonjusticiable political question. In Vieth, a majority of this Court either definitively concluded that such claims were nonjusticiable, 541 U.S. at 305–06 (plurality op.), or could eventually prove to be so, id. at 309 (Kennedy, J., concurring in the judgment). The last three decades of fruitless litigation demonstrate that there are no judicially discernible standards in this area of law. The only theory that Plaintiffs presented below—so-called partisan symmetry—is not a “comprehensive and neutral principle[ ]” of districting, derived from “the annals of parliamentary or legislative bodies.” Id. at 306–08 (Kennedy, J., concurring in the judgment). Partisan symmetry is simply a species of proportional representation, for which there is “no [constitutional] authority,” id. at 308, and which has no historical or even present-day support in districting practice.
II. Even if this Court concludes that the district court had jurisdiction to consider Plaintiffs’ claims, Plaintiffs have not stated a claim on which relief can be granted because they have not articulated a “limited and precise” standard. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).
The theory that Plaintiffs proposed in their Motion to Affirm is the opposite of limited and precise.

24
That theory identifies partisan effect based upon a brew of “partisan asymmetry” and “partisan bias,” the efficiency gap, “mean-median difference” calculations, “sensitivity testing,” and more. Mot. to Affirm 10, 12 n.4, 21 & n.8. Plaintiffs borrowed this approach from an amicus brief filed by law professors before this Court in LULAC, even though a plurality of this Court explained that this approach failed to articulate a “reliable measure of fairness.” 548 U.S. at 419–20.
The test that Plaintiffs proposed before the district court, but have now abandoned on appeal, is no more defensible. Under that proposal, a map would have an impermissible partisan effect if it had an efficiency gap of more than 7% in its first election. This boils down to yet another baseless request for proportional representation; indeed, hyperproportionalism, as the efficiency gap metric assumes that “for every percentage point increasing in vote, you’ll get a 2 percentage point increase in seat share.” Dkt. 149:188. The efficiency gap also suffers from additional fatal flaws, including that it would find that one out of every three legislative maps drawn in the last 45 years has impermissible partisan effect (while, at the same time, systematically overlooking partisanshipdriven plans drawn by Democrats).
The district court took a different tact, finding that Act 43 had an impermissible partisan effect because it allegedly “secured for Republicans a lasting Assembly majority” throughout the decade. J.S. App. 145a. As Plaintiffs conceded below, see Dkt. 68:56,

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this approach is foreclosed by Vieth. Given Plaintiffs’ concession below, the entrenchment issue was not fairly litigated at trial. Accordingly, if this Court were to hold that entrenchment plays any part in a partisan-gerrymandering test, Defendants respectfully submit that a remand to permit the parties to litigate this issue would be appropriate.
III. Plaintiffs’ lawsuit also fails because Act 43 complies with traditional redistricting principles and is otherwise unremarkable. A majority of Justices in Vieth who would even permit adjudication of partisan-gerrymandering claims would require the plaintiff to show as an element of the claim that the legislature did not comply with these neutral principles. See 541 U.S. at 318 (Stevens, J., dissenting); id. at 347–48 (Souter, J., joined by Ginsburg, J., dissenting). Here, it was undisputed below that Act 43 complies with these principles, meaning that Plaintiffs’ lawsuit fails for this reason alone. At the very minimum, Act 43 is lawful because the Legislature considered political implications as only one of many legitimate factors, including traditional redistricting principles, and because Act 43’s results are generally comparable to those that obtained under the immediately prior court-drawn map.

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ARGUMENT
I. The District Court Lacked Jurisdiction
A majority of this Court in Vieth concluded that federal courts lack jurisdiction to adjudicate statewide political-gerrymandering claims. A fourJustice plurality determined that all political-gerrymandering claims were nonjusticiable. 541 U.S. at 305–06 (plurality op.). Justice Stevens, in turn, concluded that the plaintiffs in the case had no standing to bring their statewide partisan-gerrymandering claims because they would not have standing to bring a statewide racial-gerrymandering claim. See id. at 327–28 (Stevens, J., dissenting). As the plurality correctly explained, Justice Stevens “concur[red] in the judgment that [the Court] should not address plaintiffs’ statewide political gerrymandering challenges.” Id. at 292 (plurality op.). Although Justice Stevens “reache[d] that result via standing analysis, while [the plurality] reach[ed] it through political-question analysis, [the] conclusions are the same: [ ] statewide claims are nonjusticiable.” Id. (plurality op.); see also id. at 353 (Souter, J., dissenting) (“I would limit consideration of a statewide claim to one built upon a number of district-specific ones.”).
Given that a majority of this Court has already concluded that federal courts have no jurisdiction to adjudicate statewide partisanship-based claims, and given that Plaintiffs here brought only statewide claims, a straightforward application of this Court’s

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precedent is sufficient to dispatch Plaintiffs’ lawsuit in whole. See United States v. Jacobsen, 466 U.S. 109, 115–18 & n.12 (1984) (controlling holding derived from a two-Justice plurality and four-Justice dissent); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 17 (1983) (similar). After all, “either the absence of standing or the presence of a political question suffices to prevent the power of the federal judiciary from being invoked.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974).
Even if this Court wishes to consider these issues anew, both Justice Stevens and the Vieth plurality were correct in their respective conclusions: a plaintiff lacks standing to bring a statewide partisan-gerrymandering claim, and partisan-gerrymandering claims are nonjusticiable (at least when dealing with statewide claims like those in Bandemer, Vieth, and in the present case). Either conclusion requires dismissal of Plaintiffs’ lawsuit for lack of jurisdiction.
A. Plaintiffs Have No Standing To Bring Their Statewide Claims
1. Federal courts have subject matter jurisdiction only over cases where plaintiffs have standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). For plaintiffs to have standing, each must show: (1) an “injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized,” in that it “affect[s] the plaintiff in a personal and individual way” and “(b) actual or imminent”; (2)

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a “causal connection between the injury and the conduct complained of”; and (3) a likelihood that “the injury will be redressed by a favorable decision” from the court. Id. at 560–61 & n.1 (citations omitted).
Under these controlling principles, plaintiffs in a political-gerrymandering case lack standing to bring a statewide challenge. They could only possibly have standing to challenge their own districts, based upon an allegation that their legislature’s treatment of that district’s lines caused them individualized harm. This follows directly from this Court’s racial-gerrymandering caselaw, and would obtain even absent this controlling, on-point precedent.
a. In the racial-gerrymandering context, this Court has identified two kinds of cognizable, personal harms that plaintiffs could suffer: (1) “being personally . . . subjected to a racial classification,” and (2) “being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group” in whose favor the district was gerrymandered, rather than the district’s entire electorate. Ala. Legislative Black Caucus, 135 S. Ct. at 1265 (alterations omitted) (citing Bush v. Vera, 517 U.S. 952, 957 (1996) (principal opinion of O’Connor, J.); Shaw v. Reno, 509 U.S. 630, 648 (1993)). Because these harms “directly threaten [only] voter[s] who live[ ] in the district attacked,” plaintiffs could only have standing to challenge their own “specific” districts alone, not the plan “considered as an undifferentiated ‘whole.’” Id. That is, voters who live in other

29
districts have not been “personally [ ] subjected to a[n] [impermissible] classification,” and thus generally lack standing. United States v. Hays, 515 U.S. 737, 745 (1995).
These controlling principles apply directly to the political-gerrymandering context, meaning that a political-gerrymandering plaintiff could only possibly have standing to challenge “the boundaries of [the plaintiff’s] individual district[ ],” not the State redistricting plan “considered as an undifferentiated ‘whole,’” Ala. Legislative Black Caucus, 135 S. Ct. at 1265; accord Vieth, 541 U.S. at 327–28 (Stevens, J., dissenting). Only voters living in an allegedly partisan-gerrymandered district could even arguably be “denied equal treatment because of the legislature’s reliance on” partisan “criteria.” Hays, 515 U.S. at 744–45. And only the “[v]oters in [such] districts may suffer [ ] special representational harms,” such as the “winner of an election in a [partisan]-gerrymandered district” regarding the “object of her fealty” as the “architect of the district.” Vieth, 541 U.S. at 328 n.18, 330 (Stevens, J., dissenting) (first brackets in original, citation omitted).
A contrary conclusion would create an intolerable loophole in this Court’s jurisprudence, perversely favoring politics-based claims over race-based claims. As this Court has explained, “racial identification is highly correlated with political affiliation” in certain parts of this country. Cooper, 137 S. Ct. at 1473 (citation omitted). If this Court were now to hold that

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plaintiffs have standing to bring statewide partisanship claims, whereas they lack standing to bring statewide racial claims under controlling caselaw, see Hays, 515 U.S. at 745, the obvious solution for them would be to frame their lawsuits as partisanship cases.
b. Even without the benefit of this Court’s racialgerrymandering caselaw, voters suffer no particularized injury to a cognizable legal interest from alleged partisan gerrymanders outside of their own district. Lujan, 504 U.S. at 560–61 & n.1. Under a singlemember district system, electors vote for individual Assembly members to represent them, “not for a statewide slate of legislative candidates put forward by the parties,” who then represent all of the voters in the State. Bandemer, 478 U.S. at 159 (O’Connor, J., concurring in the judgment). Accordingly, individual voters, living in individual districts, suffer no concrete injury resulting from maps impacting districts in other parts of the State.
Notably, a voter stands in the same attenuated relationship to assembly members from other districts in a state legislature as that voter stands to Representatives from other House of Representatives districts (including from other States). While a Wisconsin Democrat might prefer that Democrats in Ohio elect a majority-Democrat House delegation (and may even donate to Ohio Democrat candidates to forward that cause), that Wisconsin Democrat voter certainly suffers no individualized, concrete harm from a pro-

31
Republican gerrymander or some other voting measure (such as a stringent residency requirement, see, e.g., Marston v. Lewis, 410 U.S. 679 (1973) (per curiam)) that leaves Ohio Democrats with fewer House members to send to Washington D.C. The same logic applies, to the same degree, if that Wisconsin Democrat wants more Democrats, from other districts, elected to the Assembly and believes that Act 43 frustrated this desire.
2. Plaintiffs in this case are voters who reside in 11 of Wisconsin’s 99 assembly districts. JA153–55. They objected to Act 43 only “as an undifferentiated whole,” Ala. Legislative Black Caucus, 135 S. Ct. at 1265–66 (emphasis removed), and did not argue that any of their districts were unlawfully gerrymandered. Plaintiffs thus lack standing, as they never even sought to establish that Act 43 causes them injury “in a personal and individual way.” Lujan, 504 U.S. at 560 n.1; see Hays, 515 U.S. at 745.
The example of lead plaintiff William Whitford demonstrates how clearly Plaintiffs have failed to establish their own standing. Whitford lives in a heavily Democratic, Madison-based Assembly district. Both before and after Act 43, Democrats ran unopposed, or won by extremely large margins, in Whitford’s district. Dkt. 147:37; Defs. Ex. 538, at 28, Dkt. 147:27–28; Defs. Ex. 539, at 26–27, Dkt. 147:27–28. Act 43 is even further afield from Whitford’s district because the map-drawers presented their draft maps to legislative leaders by region. See supra p. 15. So

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even if Plaintiffs could plausibly allege that some district(s) in some other region of Wisconsin were subjected to an unlawful district-specific gerrymander, that alleged violation could not relate in any “concrete and particularized” or “causal” way to Whitford’s district. Lujan, 504 U.S. at 560. As Whitford testified, the injury that he believes that he suffered was a diminishment of his “ability to engage in campaign activity to achieve a majority in the Assembly.” Dkt. 147:37. That is not a concrete, particularized injury; instead, it is a subjective preference that any person could assert, so long as that person is interested in the election of more Wisconsin Democrats.
3. The district court and Plaintiffs offered several reasons as to why they believe Plaintiffs have standing. None of those arguments are convincing.
First, the district court held that because the Legislature utilizes a “caucus system,” which often passes legislation by the majority party only rather than through bipartisan coalitions, Act 43 “diminishes the value of the plaintiffs’ votes in a very significant way.” J.S. App. 220a. But Plaintiffs do not vote for a party in Assembly elections; they vote in single-member district elections. See supra pp. 11, 31. So even if one assumes that Act 43 would yield fewer Democrats in the Legislature as an aggregate whole, this does not “diminish[ ]” Plaintiffs’ votes any more than if some action by the Ohio legislature reduced the number of Democrats in the House for Wisconsin Democrat House members to caucus with.

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Second, the district court sought to analogize to Baker v. Carr, 369 U.S. 186 (1962). J.S. App. 221a– 22a. But Baker held that plaintiffs who live in overpopulated, and thus underrepresented, districts have standing to bring one-person, one-vote claims. See Baker, 369 U.S. at 207–08. Plaintiffs have not argued that they suffered any individual injury of the type alleged by plaintiffs who live in overpopulated districts. Unlike in Baker, each of Plaintiffs’ votes has the same weight as the votes of their fellow citizens. Plaintiffs have, instead, rested entirely on a statewide injury theory that finds no grounding in Baker.
Third, Plaintiffs point out that “not a single Justice objected” to the allegedly “statewide [ ] nature” of the claim in LULAC. Mot. to Affirm 4, 27. But when standing is “assumed by the parties” and “assumed without discussion by the Court,” a merits decision has “no precedential effect” on the standing issue. Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 91 (1998). And there is good reason why LULAC did not discuss the statewide standing issue. At oral argument, counsel for the LULAC plaintiffs explained that the claimed political gerrymander involved only the districts of “six Democratic Congressmen who had managed to be elected in Republican leaning districts.” Tr. of Oral Argument at 5, LULAC, 548 U.S 399 (No. 05-204); see also LULAC, 548 U.S. at 412– 13. And, counsel explained, at least one plaintiff resided in each of these districts, so “there [was] standing.” Tr. of Oral Argument at 35, LULAC, 548 U.S 399 (No. 05-204). The defendants did not dispute that

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those plaintiffs had district-specific standing, sufficient to bring their six-district-specific claim.
Finally, Plaintiffs invoked the ipse dixit that “partisan gerrymandering is inherently a statewide activity” and thus they must have standing to challenge Act 43 on a statewide basis. Mot. to Affirm 4 (emphasis added). But it is clearly possible for a plaintiff to bring a district-specific partisanship claim, as did one of the Vieth plaintiffs. See Vieth, 541 U.S. at 318–19 (Stevens, J., dissenting); accord Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (currently pending single-district partisan-gerrymandering claim); Edward B. Foley, The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. & Legal Theory Working Paper Series No. 401, at 13–15 (July 10, 2017) (urging a district-specific political-gerrymandering test).8
B. Plaintiffs’ Challenge To Act 43 As An Unlawful Statewide Gerrymander Presents A Nonjusticiable Controversy
1. Federal courts lack jurisdiction to decide political questions. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). This Court has “set forth six independent tests for the existence of a political question.” Vieth, 541 U.S. at 277–78 (plurality op.).
8 Available at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2999738.

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Particularly relevant here is one of the most “importan[t]” and “certai[n]” of those tests, id.: a claim is nonjusticiable if there is “a lack of judicially discoverable and manageable standards for resolving it.” Id. (citation omitted).
In Bandemer, Justice O’Connor, joined by Chief Justice Burger and then-Justice Rehnquist, concluded that “partisan gerrymandering claims of major political parties raise a nonjusticiable political question.” 478 U.S. at 144 (O’Connor, J., concurring in the judgment). Adjudicating such claims would propel courts “toward some form of rough proportional representation,” inconsistent “with our history, our traditions, [and] our political institutions.” Id. at 145. Authorizing these claims is particularly inappropriate in a “statewide” context because “[n]one of the elections for the [ ] Legislature are statewide.” Id. at 153 (O’Connor, J., concurring in the judgment).
Revisiting these concerns in Vieth, in the wake of “[e]ighteen years of essentially pointless litigation,” five Justices concluded that political-gerrymandering claims either were nonjusticiable, or could prove nonjusticiable after further experience. Writing for a four-Justice plurality, Justice Scalia concluded that partisan-gerrymandering claims are not justiciable, after discussing the standards offered in Bandemer, by the Vieth plaintiffs, and by the dissenting Justices, and finding each wanting. Id. at 281–301. Justice Kennedy, while not joining the Vieth plurality, agreed that none of the proposed standards was adequate,

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while adding two additional important considerations. Id. at 306 (Kennedy, J., concurring in the judgment). First, no party had presented “comprehensive and neutral principles for drawing electoral boundaries,” or “helpful discussions on the principles of fair districting discussed in the annals of parliamentary or legislative bodies.” Id. at 306–08. Second, given this “dearth of helpful historical guidance,” “intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Id. at 307, 309. Although Justice Kennedy allowed for the “possibility” of judicial involvement “if some limited and precise rationale were found,” id. at 306, he recognized that there were “weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run,” id. at 309.
2. Political-gerrymandering claims could only be justiciable if litigants successfully identify “comprehensive and neutral principles for drawing electoral boundaries,” such as those derived from “the annals of parliamentary or legislative bodies.” 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment). It has been now 13 years since Vieth, and over three decades since Bandemer. Yet no litigant has identified such principles and historical sources. This Court should thus hold that political-gerrymandering claims are nonjusticiable, at least for statewide claims like those in Bandemer, Vieth, and this case. That statewide claims like those at issue in this case are

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most clearly outside of courts’ jurisdiction is further reinforced by the standing discussion above, supra pp. 27–34, including because “[n]one of the elections for the [ ] Legislature are statewide,” Bandemer, 478 U.S. at 144 (O’Connor, J., concurring in the judgment).9
The lack of historically derived “comprehensive and neutral principles” for redistricting illustrates the futility of continued litigation on this question. As Plaintiffs conceded below, given that this Court has held that “proportional representation,” “predominant or exclusive partisan intent,” “district noncompactness,” and “minority party entrenchment” each do not qualify as sufficiently neutral principles, the “only theory” that Plaintiffs can imagine still remaining is “partisan symmetry.” Dkt. 68:56 (emphasis in original). Partisan symmetry, Plaintiffs have explained, is “the idea that a district plan should treat the major parties symmetrically with respect to the conversion of votes to seats.” JA28.
But partisan symmetry is simply not a “comprehensive and neutral principle[ ] for drawing electoral boundaries.” Vieth, 541 U.S. at 306–07 (Kennedy, J.,
9 Given that this case involves only such statewide claims, this Court need not decide here whether partisanship-based claims brought on an entirely different theory are justiciable. See, e.g., Edward B. Foley, supra, at 13–15, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999738 (proposing a district-specific test based upon comparing a district to the Elbridge Gerry gerrymander).

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concurring in the judgment), as the LULAC plurality correctly explained when an amicus brief suggested this principle, 548 U.S. at 419–20 (plurality op.); see also infra pp. 43, 47–48 (extended discussion of this amicus brief). While partisan symmetry is some social scientists’ currently favored idea of redistricting fairness, it lacks any support in the “annals of parliamentary or legislative bodies,” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment), or even modern-day practice by legislatures or courts. “There is,” after all, “no basis in the historical record for saying that the Constitution embodies a standard of partisan symmetry.” Edward B. Foley, Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, 84 U. Chi. L. Rev. 655, 727 (2017). Even today, no State uses partisan symmetry as a redistricting principle. See generally Nat’l Conference of State Legislatures, Redistricting Law 2010, November 2009, at 172–217 (50-State survey).10 And where neutral courts must draw district lines, they do not generally seek to forward partisan symmetry. To the contrary, courts can proceed “by taking the [prior] plan as a template and adjusting it for population deviations,” Baumgart, 2002 WL 34127471, at *7, even where this “leave[s] . . . largely in place” a partisan asymmetry enacted by a prior legislature, LULAC, 548 U.S. at 412 (citation omitted).
10 Available at http://www.ncsl.org/Portals/1/Documents/Re districting/Redistricting_2010.pdf.

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Partisan symmetry is also not a “comprehensive and neutral principle[ ],” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment), for an additional reason, one which has plagued every statewide test that has been proposed to this Court: it is inexorably based upon proportional-representation principles. Partisan symmetry relies upon the premise that the ideal system is one in which voters’ statewide preferences are reflected in a proportionate statewide share of seats, by means of all major parties “conver[ting] votes to seats” with equal efficiency. JA28. But this proportionality assumption is inconsistent “with our history, our traditions, [and] our political institutions,” Bandemer, 478 U.S. at 145 (O’Connor, J., concurring in the judgment), and is supported by “no authority,” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). That every statewide test so far suggested boils down to a “proportional representation standard” convincingly highlights that it is very likely “impossible” to adopt a statewide test that does not rely upon this inapposite, ahistoric precept. See Peter Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240, 240 (B. Grofman ed., 1990).
Failing to declare such statewide partisanship claims nonjusticiable, when no test has emerged in over three decades, “risk[s]” courts’ “assuming political, not legal, responsibility for a process that often produces ill will and distrust,” Vieth, 541 U.S. at 307

40
(Kennedy, J., concurring in the judgment), and is “primarily the duty and responsibility of the State,” Chapman, 420 U.S. at 27. That is what occurred below, as the district court invalidated Act 43 on a theory that no party had suggested, after subjecting Defendants to a time-consuming trial. See supra pp. 17–21.
Statewide political-gerrymandering claims are nonjusticiable regardless of whether plaintiffs style those claims as arising under the First or Fourteenth Amendments. In Vieth, Justice Kennedy observed that “[t]he First Amendment may be the more relevant constitutional provision in future cases [of] partisan gerrymandering.” 541 U.S. at 314 (Kennedy, J., concurring in the judgment). Plaintiffs brought their claims under both the First and Fourteenth Amendments, but neither Plaintiffs nor the district court distinguished between the claims in litigating and adjudicating this case. See J.S. App. 55a, 109a–10a. The unanswered (and unanswerable) challenge under either Amendment remains the same on the issue of justiciability: identifying historically based, “comprehensive and neutral principles for drawing electoral boundaries.” Vieth, 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment).
Finally, as discussed in detail immediately below, see infra pp. 41–59, that Plaintiffs failed to propose any limited and precise test for adjudicating statewide partisan-gerrymandering claims further supports the conclusion that such claims are nonjusticiable. See

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541 U.S. at 292–301 (plurality op.) (finding nonjusticiability in large part because the proposed tests proved inadequate). Indeed, that the district court adopted a recycled version of the Bandemer plurality’s test, while Plaintiffs have now turned to a test rejected by the LULAC plurality, see infra pp. 47–48, highlights that no judicially manageable test is available.
II. Plaintiffs Failed To State A Claim Because They Did Not Offer A “Limited And Precise” Test For Adjudicating Their Allegations
Plaintiffs failed to state a claim on which relief can be granted because they did not articulate a “limited and precise” legal standard. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). That is, even if this Court concludes that there could potentially be historically based “comprehensive and neutral principles” that help mediate whether there has been “too much” partisanship for justiciability purposes, LULAC, 548 U.S. at 420 (plurality op.); but see supra pp. 34–41, Plaintiffs’ failure to propose a “limited and precise” test for adjudicating their partisanbased allegations requires dismissal of their claims under “Fed. Rule Civ. Proc. 12(b)(6),” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).
A. This Court’s caselaw provides the framework for deciding whether Plaintiffs have met their burden of identifying a “limited and precise” standard.

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In Bandemer, this Court faced a statewide partisan-gerrymandering claim under which “Democratic candidates received 51.9% of the votes,” but won only 43 out of 100 seats available. 478 U.S. at 113–15 (plurality op.). As relevant to the present case, the Bandemer plurality rejected the plaintiffs’ challenge under a three-part standard based upon discriminatory intent, discriminatory effect, and inadequate justification. Regarding intent, “[a]s long as redistricting is done by a legislature, [partisan intent] should not be very difficult to prove.” Id. at 129. As for effect, “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or group of voters’ influence on the political process as a whole.” Id. at 132. “[A] finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133 (emphasis added). As to the third part of the test, “[i]f there were a discriminatory effect and a discriminatory intent,” a court’s job was to evaluate the plan for “valid underpinnings.” Id. at 141.
Eighteen years later, in Vieth, this Court rejected the Bandemer plurality’s test, as well as every other test proposed in that case. Bandemer’s entrenchment-based effects test led to “puzzlement and consternation,” while giving no “real guidance to lower courts.” Vieth, 541 U.S. at 282–83 (plurality op.) (citation omitted); accord id. at 308 (Kennedy, J., concurring in the judgment). As for the other proposed

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tests, the plurality and Justice Kennedy rejected each as “either unmanageable or inconsistent with precedent, or both.” Id. at 308 (Kennedy, J., concurring in the judgment). Most relevant for purposes of this case, the plurality and Justice Kennedy rejected Justice Breyer’s test—somewhat similar to the Bandemer plurality’s—that a plan is impermissible if it involves “unjustified use of political factors to entrench a minority in power,” id. at 360 (Breyer, J., dissenting) (emphasis altered); see id. at 299 (plurality op.); id. at 308 (Kennedy, J., concurring in the judgment). In all, the controlling principle from Vieth is the one that Justice Kennedy announced in his concurring opinion: a partisan-gerrymandering claim fails unless the plaintiff carries a burden that the plaintiffs in Vieth and Bandemer had failed to: articulate a “limited and precise” legal standard. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).
Two years after Vieth, a plurality of this Court in LULAC rejected a test for detecting impermissible partisan effect proposed by group of amici professors led by Professor Gary King. 548 U.S. at 420–21 (plurality op.). Professor King et al. based this proposed approach on the concept of “partisan symmetry,” which “compar[ed] how both parties would fare hypothetically if they each (in turn) had received a given percentage of the vote.” Br. of Amici Curiae Profs. Gary King et al., League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (Nos. 05-204, 05-254, 05276, 05-439), 2006 WL 53994, at *5, *7. The professors offered no single means of measuring partisan

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asymmetry, instead referring this Court to “a sequence of closely related, and steadily improving, statistical methods” in social-science texts. Id. at *9. And they took “no position on how this Court could best implement a [partisan-symmetry based] test,” id. at *12, arguing that “future” litigation would “flesh out the particulars” of their proposed standard, id. at *16. A plurality of this Court rejected the professors’ suggestion for failing to furnish a “reliable measure of fairness,” LULAC, 548 U.S. at 419–20 (plurality op.), explaining that, among its other faults, this proposal does not answer the key question of “how much partisan dominance is too much,” id. at 420.11
B. Plaintiffs and the district court have proposed three different three-part tests, but none satisfies the “limited and precise” requirement.
Before discussing the proposed tests’ critical effects prongs, it is important to understand that these tests’ other two prongs—partisan intent and lack of justification—add nothing to the Bandemer plurality’s inadequate test. The first element of the three proposed tests and the Bandemer plurality’s test is partisan intent. The district court’s intent element,
11 Several other Justices took no position on the professors’ proposed standard. See, e.g., LULAC, 548 U.S. at 483–84 (Souter, J., concurring in part, dissenting in part) (expressing no opinion on “the administrability” of this approach); id. at 491–92 (Breyer, J., concurring in part, dissenting in part) (relying on entrenchment criterion, with no mention of symmetry test).

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for example, requires a demonstration of “an intent to entrench a political party in power,” J.S. App. 117a, which is not meaningfully different from the Bandemer plurality requiring an intent to discriminate against “an identifiable political group,” 478 U.S. at 127, or intending the map to have “substantial political consequences,” id. at 129. Similarly, the proposed tests and the Bandemer plurality’s test include matching “justification” prongs, which permit upholding a map if its partisan effect can be sufficiently justified. Compare J.S. App. 109a–10a, with 478 U.S. at 141.
It follows that if there is anything in the district court’s or Plaintiffs’ proposals capable of offering a “limited and precise” standard, it is not located in the Bandemer-plurality-derived “intent” and “justification” tests. Instead, the principle must be found—if at all—in the proposals’ effects tests. Those three approaches to measuring partisan effect are:
1. Social Science Hodgepodge. In their Motion to Affirm, Plaintiffs abandoned their prior reliance on the efficiency gap as the definitive test for partisan effect, see infra pp. 48–49, and argued that this effect should be adjudicated based upon an unspecified combination of “partisan asymmetry” and “partisan bias” measures, see Mot. to Affirm 10, the efficiency gap, “mean-median difference” calculations, and “analytical techniques like sensitivity testing,” all of which are said to “exploit recent conceptual and methodological advances in the social sciences.” Mot. to Affirm

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10–12 & n.4, 21 & n.8. Sorting out the “precise contours” of which of these (or other) social-science metrics would apply, when, and how, would be left for “subsequent litigation” in the lower courts. Mot. to Affirm 22–23.
It would be difficult to conceive of a standard less “limited” and less “precise” than Plaintiffs’ social-science stew. Touting “recent conceptual and methodological advances in the social sciences,” Plaintiffs would have this Court instruct district courts to evaluate the effects of alleged partisan gerrymanders by applying an unbounded variety of metrics. Mot. to Affirm 10–12 & n.4, 21 & n.8. As for which metric or metrics would govern any case, Plaintiffs provide no answer or even rough guidance. Instead, they urge this Court not “to endorse any particular measure of partisan asymmetry or any particular technique for demonstrating durability.” Mot. to Affirm 22 (emphasis omitted). Better to leave it to lower courts to figure it out in “subsequent litigation”; presumably only after having subscribed to Political Research Quarterly, American Political Science Review, and other essential journals. Mot. to Affirm 22–23.
Whereas “Bandemer begot only confusion,” Vieth, 541 U.S. at 283 (plurality op.) (citation omitted), Plaintiffs’ social-science approach would sow chaos. Each legislatively drawn plan would be immediately challenged in federal court. A trial would follow, where each side would present dueling “social science” expert(s), and then the district court would need

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to pick a winner. There would be no way for any legislature to know, ex ante, what metric would guide the inevitable future trial. Notably, whereas Plaintiffs’ favored social-science metric below (efficiency gap) found an impermissible partisan effect in one of every three plans, see infra p. 52, Plaintiffs’ multi-metric approach threatens even more plans, since the plaintiffs in each case could choose their own favored metric.
Plaintiffs’ reliance on Reynolds v. Sims, 377 U.S. 533 (1964), to deflect these administrability problems, Mot. to Affirm 23, is unpersuasive. In Reynolds, this Court identified the constitutional violation and standard—one person, one vote—and then sought to develop a way to enforce that constitutional mandate. See Reynolds, 377 U.S. at 565–68, 577–78; see also Vieth, 541 U.S. at 290 (plurality op.). Here, in contrast, Plaintiffs have not articulated any “comprehensive and neutral principles” necessary to identify the constitutional violation and standard, Vieth, 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment), and thus there is no constitutional principle for district courts to seek to develop in future cases. And if Plaintiffs’ Reynolds-based pitch sounds familiar, it is because the professors’ amicus brief in LULAC urged that same approach. See King Br., 2006 WL 53994, at *16.
The similarities between Plaintiffs’ Motion to Affirm and Professor King et al.’s submission in LULAC are, in fact, quite striking. Like Plaintiffs here, the professors invited this Court to adopt a social-science-

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based analysis drawn from several developing metrics. Compare King Br., 2006 WL 53994, at *9–*11, with Mot. to Affirm 5, 10, 12 n.4, 21. Like Plaintiffs here, Professor King et al. declined to explain “how this Court could best implement” that test. Compare King Br., 2006 WL 53994, at *12, with Mot. to Affirm 22–23. And like Plaintiffs here, the professors offered assurance that “lower courts and this Court will flesh out the particulars of the rule in the future,” citing Reynolds. Compare King Br., 2006 WL 53994, at *16, with Mot. to Affirm 22–23 (tracking this language). All this Court needs to do is to “set a general rule prohibiting partisan gerrymanders,” and then lower courts could “decide the specifics of the issue as facts develop.” See King Br., 2006 WL 53994, at *17; Mot. to Affirm 20–22. This Court found the professors’ approach inadequate, LULAC, 548 U.S. at 419–20 (plurality op.), and Plaintiffs here have not cured that fatal defect.
2. Efficiency Gap. Plaintiffs took a different approach before the district court, arguing that the effects test should be based upon the so-called “efficiency gap.” See supra pp. 17–19. This concept, recently proposed in a law-review article by one of Plaintiffs’ attorneys, Stephanopoulos & McGhee, 82 U. Chi. L. Rev. 831, measures the major parties’ relative percentage of “wasted” votes, defined as ballots cast “(1) for a losing candidate, or (2) for a winning candidate but in excess of what she needed to prevail.” Id. at 834. The formula takes the difference between the parties’ respective wasted votes in an election and

49
divides it by the total number of votes cast. J.S. App 32a. If the gap is zero, the “two parties waste votes at an identical rate”; if the gap favors one party, that party “wasted fewer votes than its opponent, [and] was able to translate, with greater ease, its share of the total votes cast in the election into legislative seats.” J.S. App. 32a–33a. Plaintiffs contended below that if the gap for a given plan exceeds 7% in the first election, this establishes unconstitutional effect. J.S. App. 33a–34a. The district court did not adopt this approach, see J.S. App. 159a, 176a, and Plaintiffs no longer rely upon it, see Mot. to Affirm 10. And with good reason.
First, the efficiency gap is built upon the extraconstitutional assumption that proportionate representation is the baseline, see supra pp. 35–36, deviation from which is the touchstone of impermissible effect. The efficiency gap maintains as its core premise that, insofar as a districting plan renders Democrats or Republicans unable to translate their statewide vote totals into a proportionate number of legislative seats, they are constitutionally harmed. So “[i]f Party A has a large statewide total of votes, say 60%, but has only received 51% of the seats, there is a large efficiency gap reflecting . . . [that] the number of seats they won was disproportionally small compared to their statewide vote totals.” J.S. App. 270a (Griesbach, J., dissenting). In fact, the efficiency gap requires hyperproportionality. The gap theory assumes that “for every percentage point increasing in vote, you’ll get a 2 percentage point increase in seat

50
share.” Dkt. 149:188. In other words, even “if a state successfully achieved proportional representation, the plan might fail an [efficiency gap] analysis because it fails to give a hyperproportional share to the party winning the majority of the statewide vote.” J.S. App. 175a.
Second, the gap’s reductionist view of voting—regarding ballots as economic transactions, valuable only when “efficiently” cast—distorts the role that votes play in our democracy. The premise of the gap’s theory is that votes are “wasted” if cast (1) “for a losing candidate,” or (2) “for a winning candidate but in excess of what he or she needed to prevail.” JA28–29. But a Republican who wins 50.1% of the vote is not interchangeable with a Republican elected at a comfortable 75% margin. “It is exceptionally likely that legislators in swing districts will adopt more moderate, centrist positions than some of their colleagues, and they will of necessity be more responsive to the 49% of the electorate that did not vote for them.” J.S. App. 287a (Griesbach, J., dissenting).
Third, the efficiency gap’s zero-gap baseline is systematically biased against Republicans and in favor of Democrats, at least under modern political conditions. This is largely because Democratic voters concentrate in big cities and “smaller industrial agglomerations such that they can expect to win fewer than 50% of the seats when they win 50% of the votes.” Jowei Chen & Jonathan Rodden, Uninten-

51
tional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239, 239–40 (2013); Vieth, 541 U.S. at 290 (plurality op.) (recognizing this phenomenon); id. at 359 (Breyer, J., dissenting) (same). In Wisconsin, “Republican-favoring efficiency gaps have been part of [the] political landscape for more than three decades,” well before Republicans were drawing district lines, J.S. App. 309a (Griesbach, J., dissenting), including under courtdrawn plans, JA222–24; Defs. Ex. 547, at ¶ 100, Dkt. 147:27–28. Wisconsin is hardly unusual in this respect. Professor Jackman, Plaintiffs’ expert, conceded that efficiency gaps have trended in Republicans’ favor since the mid-1990s, even though only two of the 41 States in Jackman’s data set were Republican-controlled. Dkt. 149:252–67; Pls. Ex. 34, at 45, Dkt. 147:7–8. And because of its systemic anti-Republican bias, the efficiency gap metric is also incapable of catching what many generally understand as Democrat-enacted gerrymanders. See Defs. Ex. 547, at ¶¶ 117, 120, Dkt. 147:27–28; Dkt. 150:75–79.
Fourth, the efficiency-gap theory has numerous technical defects, which can only be briefly summarized here. Even maps that include “many competitive districts”—which can be a feature, not a bug, of a districting plan, see Gaffney v. Cummings, 412 U.S. 735, 752–53 (1973)—would be constitutionally suspect. J.S. App. 174a–75a. Under such plans, a “narrow statewide preference,” Bandemer, 478 U.S. at 130 (plurality op.), would send efficiency-gap scores off the charts because in close races, the party that wins

52
“wastes” very few votes while the party that loses “wastes” all of its votes. This would cast a presumption of unconstitutionality on what many regard to be “a desirable and non-partisan policy choice.” J.S. App. 174a–75a. As the dissent put it, “Plaintiffs would use the Republicans’ own electoral success against them: . . . the more close races the Republicans win,” the larger the efficiency gap, and the larger the gap, the more likely “the Republicans’ wins must have been the result of an invidious gerrymander—a self-fulfilling prophecy.” J.S. App. 294a (Griesbach, J., dissenting). More generally, the gap is overly sensitive to wave elections. “[W]inning close elections is the surest way to make sure the other side racks up lots of wasted votes—every losing vote is wasted, whereas only a few winning votes are wasted.” J.S. App. 293a (Griesbach, J., dissenting). So it is possible that a high efficiency gap indicates nothing except that one party beat the other party in several close elections— a fact that says nothing about whether the map itself is “too” partisan.
Finally, the efficiency gap is overbroad, putting so many plans in jeopardy that it “would risk [federal courts] assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Plaintiffs’ 7% gap first-election threshold would find an impermissible effect in one of every three plans over nearly 45 years. See JA193–94, 201. Even considering only elections held in 2012 or 2014, Plaintiffs’ expert found an efficiency gap greater than

53
10% in Florida, Indiana, Kansas, Michigan, Missouri, North Carolina, New York, Ohio, Rhode Island, Virginia, Wisconsin, and Wyoming. SA253. Nor would this analysis be limited to state legislatures, as this metric would presumably be applied to plans ranging from congressional maps, see Vieth, 541 U.S. 267, to water districts, see Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976), summarily aff’g 68 F.R.D. 668 (S.D. Tex. 1975), abrogated on other grounds by Bandemer, 478 U.S. 109.
3. Entrenchment. The district court adopted an entrenchment-based partisan test; Act 43, the court concluded, had an unlawful partisan effect because “it secured for Republicans a lasting Assembly majority,” J.S. App. 145a, by “impeding [Democrats’] ability to translate their votes into legislative seats . . . throughout the life of” the plan, J.S. App. 176a–77a. Plaintiffs did not urge the adoption of this test below and did not defend it in their Motion to Affirm. Indeed, Plaintiffs conceded that Vieth rejected “minority party entrenchment” as a test for impermissible partisan effect. See Dkt. 68:56. The district court’s approach is thus foreclosed by binding precedent and waived by Plaintiffs’ position on appeal. But to the extent this Court concludes that entrenchment should play any part in a partisan-effects analysis, and holds that Act 43 is not otherwise permissible as a matter of law, see infra pp. 56–57, Defendants respectfully submit that a remand would be necessary to permit Defendants to fairly litigate the entrenchment issue.

54
a. Plaintiffs’ concession below that this Court’s precedent foreclosed an entrenchment-based effects test was well warranted.
In Bandemer, the plurality proposed an effects test under which “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” 478 U.S. at 132 (emphasis added). “[A] finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133 (emphasis added). Every Justice in Vieth rejected this test, see 541 U.S. at 282–84 (plurality op.); id. at 308 (Kennedy, J., concurring in the judgment); id. at 317–18 (Stevens, J., dissenting); id. at 346 (Souter, J., joined by Ginsburg, J., dissenting); id. at 355–56 (Breyer, J., dissenting), although Justice Breyer proposed a somewhat similar entrenchment rationale where, for example, a majority party had “twice failed to obtain a majority of the relevant legislative seats,” see id. at 366 (emphasis omitted).
The district court’s entrenchment test, “secur[ing] for Republicans a lasting Assembly majority,” J.S. App. 145a, based upon a degrading of the “ability to translate [ ] votes into legislative seats,” J.S. App. 176a–77a, is indistinguishable from the approach urged by the Bandemer plurality (and, to a more limited extent, by Justice Breyer). Both the tests require

55
“burdening a defined group’s representational rights” (i.e., “degrading a voter’s influence”) “over the life of the plan” (i.e., “consistently”). The claimed purpose of both inquiries is not to detect “disproportionality per se,” Bandemer, 478 U.S. at 143 n.21 (plurality op.); see J.S. App. 167a–68a, but to ascertain “continued frustration of the will of a majority,” Bandemer, 478 U.S. at 133 n.21 (plurality op.) (emphasis added), by entrenching a “lasting Assembly majority” over the following decade, J.S. App. 145a.
As this Court held in Vieth, entrenchment is not a relevant and reliable measure of unconstitutional partisan gerrymandering. For one thing, it rests upon the constitutionally baseless “principle that groups . . . have a right to proportional representation.” Vieth, 541 U.S. at 287–98 (plurality op.); id. at 308 (Kennedy, J., concurring in the judgment). At the same time, it does not overcome “the difficulties of assessing partisan strength statewide,” Vieth, 541 U.S. at 300 (plurality op.), including the problem of ascertaining “a person’s politics, [which] is not an immutable characteristic” and the undeniable fact “that majority status in statewide races [does not always] establish[ ] majority status for district contests,” id. at 287–88 (plurality op.). More practically, the record of Bandemer’s test proves that abstract entrenchment tests are unadministrable, producing only “puzzlement,” “consternation,” and “indeterminacy” in the lower courts. Id. at 282–83 (plurality op.).

56
The district court’s gloss on entrenchment is, if anything, even less defensible than the Bandemer plurality’s test. In 2012, Wisconsin Democrats received 51% of the vote and secured 39% of the Assembly seats. See JA224. In 1982, Indiana Democrats earned 51.9% of the vote and won 43% of the seats. Bandemer, 478 U.S. at 115. The district court attempted to distinguish Bandemer by pointing out that the record here contained the results of a second election under Act 43, the 2014 election. J.S. App. 155a– 58a. But Republicans won a majority of the votes cast (52%) in 2014, see JA224, so they were not a political minority entrenching itself, see Vieth, 541 U.S. at 366 (Breyer, J., dissenting) (a majority party “twice failed to obtain a majority” of seats). In any event, if the district court was suggesting that the Bandemer plurality’s test would have invalidated Act 43 because there is now a second election to show entrenchment, that would only further support Defendants’ point that the district court’s test and the Bandemer plurality’s test are one and the same.
b. Given Plaintiffs’ necessary concession below that an entrenchment-based inquiry is foreclosed by this Court’s precedent, as well as Plaintiffs’ singleminded focus on the efficiency gap, the parties did not fairly litigate this issue before the district court. To the extent that this Court were now to conclude that entrenchment plays any role in a partisan-effects analysis, but does not also conclude that Act 43 is lawful for other reasons, vacatur and remand would be

57
necessary. See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2131 (2014).
Without receiving any briefing on the issue of entrenchment, the district court found that Act 43 “secured for Republicans a lasting Assembly majority” based upon the uniform swing analyses conducted by Drs. Gaddie and Mayer. J.S. App. 145a–46a. But neither analysis is designed to test Republican party entrenchment throughout the decade under Act 43.
Gaddie’s swing analysis does not support the district court’s conclusion that Act 43 will “secure[ ] for Republicans a lasting Assembly majority.” J.S. App. 145a. As the district court explained, a swing analysis “ask[s] the question . . . what might happen under different electoral conditions.” J.S. App. 148a (citation omitted); but see LULAC, 548 U.S. at 420 (plurality op.) (“[W]e are wary of adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.”). To test this hypothetical, “the statewide vote percentage is altered by a fixed amount, typically in one-percentage-point increments, across all districts.” J.S. App. 148a–49a (citation omitted); Dkt. 148:222– 23. Gaddie’s swing analysis predicted electoral change assuming that no incumbent would run for reelection, and making no prediction as to candidate strength or any other factor that could be expected under Act 43 in the real world. Dkt. 108:12, 50. Notably, even if one were to take Gaddie’s swing analysis at face value, that analysis entirely refutes any notion

58
that Act 43 entrenches the Republican Party in the majority throughout the decade. Under that analysis, Democrats would win a majority of the Assembly if they obtained just over 53% of the vote, SA339; J.S. App. 230a, a vote share that Democrats exceeded in two out of the three elections (2006 and 2008) leading up to Act 43, JA223–24.
Mayer’s swing analysis similarly does not support the district court’s entrenchment finding. As Mayer conceded at trial, his swing analysis was not designed to predict what would occur under Act 43 throughout the entire decade. Dkt. 149:92–93. Understanding Mayer’s methodology explains why that concession was unavoidable. Mayer conducted his analysis by taking the world after the 2012 election—in which Republicans secured a 60-39 majority, JA219–20—and then adding an “incumbent advantage,” worth as much as 4% (depending on the district), on the assumption that every incumbent would run again. Dkt. 149:81–92. He then assumed that Democrats would gain 3% in every district in a swing election. Dkt. 149:89; Dkt. 95:29. Unsurprisingly, after shifting all 60 Republican-held seat upwards by as much as 4% (based upon incumbency), the swing of three points to Democrats did not gain the Democrats many seats. But in Wisconsin, incumbents do not run in every single election. Far from it. For example, of the 60 Republican members who won election to the Assembly in 2010, fewer than half were on the general

59
election ballot for the Assembly again in 2014. Compare Defs. Ex. 538:9–34, Dkt. 147:27–28, with Defs. Ex. 541:9–31, Dkt. 147:27–28.
III. Act 43 Is Lawful Because It Complies With Traditional Redistricting Principles And Is Otherwise Unobjectionable
While the district court’s lack of jurisdiction, as well as Plaintiffs’ failure to articulate a limited and precise test, are reason enough to reverse the district court, there are additional grounds why Plaintiffs’ claims fail. The most obvious such reason comes both from Vieth and from the historical origins of the political-gerrymander concept itself: no unlawful political gerrymandering has occurred where, as in the case of Act 43, the legislature complied with traditional redistricting principles. At the very minimum, given that the Legislature that created Act 43 considered political implications only alongside traditional redistricting principles and other legitimate factors, and given that Act 43 did not depart drastically from the immediately prior court-drawn map, no further partisanship-based inquiry is necessary.
A. In Vieth, a majority of the Justices of this Court would not condemn as overly political a plan that complied with traditional redistricting principles. As Justice Kennedy explained, any “limited and precise” standard must establish that the legislature drew districts “in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 306–07 (Kennedy, J.,

60
concurring in the judgment) (emphasis added); accord Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008) (plurality op.) (partisan motivations do not establish a violation of the First and Fourteenth Amendments where the “law is supported by valid neutral justifications”). Drawing districting lines that comply with traditional redistricting principles is, of course, a legitimate legislative objective. See generally Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1306 (2016). Justices Stevens and Souter (joined by Justice Ginsburg) were even more specific in their Vieth opinions, making noncompliance with traditional redistricting principles a necessary element of their respective tests. See 541 U.S. at 318 (Stevens, J., dissenting); id. at 347–48 (Souter, J., dissenting). Combining these Justices’ conclusions with the plurality’s holding that the federal courts cannot condemn any plan on partisanship grounds, id. at 281 (plurality op.), yields the controlling principle that a plan that complies with traditional redistricting principles is not an unlawful partisan gerrymander, see Jacobsen, 466 U.S. at 115–18 & n.12; Moses H. Cone, 460 U.S. at 17.
The rule that map-drawers have not engaged in unlawful partisan gerrymandering when they have complied with these neutral principles derives from early American history. From the coinage of the term in 1812, complaints against the original gerrymander focused on the “fantastic shapes” of the districts and the “most distorted contour” of the “[t]he outer district of Essex county” in particular. See Griffith, supra, at

61
17–19. In arguing against Ohio’s 1842 attempted gerrymander, the Whigs lamented that one “need[ ] only a glance at the map to see how far contiguity of territory has been regarded in the formation of this bill. It has not only not been regarded; it has been most grossly disregarded.” Daily Ohio St. J. (Columbus, August 12, 1842), supra pp. 8–9. In all, “[i]t is impossible to overstate the importance of the district’s grotesque shape as an essential element of its impropriety to those that condemned it in the nineteenth century.” Foley, 84 U. Chi. L. Rev. at 712. Traditional redistricting principles, such as compactness, operate to prevent such distorted district shapes. See Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301, 326–51 (1991).
A rule safeguarding against politics-based attacks on redistricting plans that comply with traditional redistricting principles would be sensible. Even in the context of racial gerrymandering, this Court previously explained that “appearances do matter,” including because compliance with these principles is an “objective factor[ ]” with which a court may evaluate a map. See Shaw v. Reno, 509 U.S. 630, 647 (1993). Given that political considerations are “inevitabl[e]” in the redistricting process, Gaffney, 412 U.S. at 753, it would be reasonable to hold that, as a matter of law, there has not been “too much” partisanship, LULAC, 548 U.S. at 420 (plurality op.), when the map-drawers have complied with traditional principles.

62
That this Court ultimately decided to permit racial-gerrymandering challenges against districts that comply with traditional redistricting principles, Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017), does not suggest that a different approach is inappropriate in politics-based cases (especially if this Court permits statewide partisan-gerrymandering claims, whereas such claims are not permitted in the racial-gerrymandering context, see supra pp. 28– 30). “Race is an impermissible classification”; “[p]olitics is quite a different matter.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (citations omitted). A plan that complies with traditional redistricting principles and yet is still predominantly motivated by race would be deeply constitutionally flawed, Bethune-Hill, 137 S. Ct. at 799, including because of the sordid history of racial discrimination in our country, Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017). No such special consideration applies in the partisanship context, given the centrality of traditional redistricting principles to the historical conception of a partisan gerrymander.
In the present case, Plaintiffs did not argue below that Act 43 failed to comply with traditional redistricting principles. J.S. App. 250a–51a (Griesbach, J., dissenting). To the contrary, it was undisputed that Act 43 generally matched the immediately prior court-drawn map on these principles. See supra pp. 16, 21. That is reason enough to hold that Act 43 is lawful.

63
B. Even if this Court concludes that Act 43’s compliance with traditional redistricting principles does not bar Plaintiffs’ lawsuit, the fact that Act 43 does comply with these principles, that the Wisconsin Legislature took politics into account as one of many legitimate factors, and that Act 43’s results have proven so similar to those that obtained under the 2002 court-drawn map, all demonstrate Act 43’s legality.
The record reveals that the Legislature’s mapdrawers took politics into account as one of many factors. The map-drawers first drew and then “locked” in the Milwaukee districts to comply with the VRA. See supra p. 14. Then, they carefully designed their draft maps to comply with equal-population requirements, as well as traditional redistricting principles such as compactness, contiguity, and respect for political-subdivision lines. See supra pp. 14–15. Although the map-drawers took political implications into account, that is unsurprising and unremarkable. “The reality is that districting inevitably has and is intended to have substantial political consequences,” Gaffney, 412 U.S. at 753 (emphasis added), and has since the Founding, see supra pp. 5–10. At the same time, politics did not dominate the district lines that the Legislature adopted as much as in the early American history examples discussed above, supra pp. 5– 10, in Bandemer, where the legislature adopted districts with “irregular shape[s]” and a “peculiar mix of single-member and multimember districts,” 478 U.S. at 116 (plurality op.), or in Vieth, which included a

64 district that looked “like a dragon descending on Philadelphia,” 541 U.S. at 339 (Stevens, J., dissenting) (citation omitted).
The map the Legislature ultimately adopted is strikingly similar to the 2002 court-drawn map, in terms of compliance with traditional redistricting principles, district shapes, and results.
(Left, SA361 (Act 43); Right, SA363 (2002 courtdrawn map)).
The election results under these plans are also comparable. Under the 2002 court-drawn map, Republicans won 58 seats with 50.50% of the vote in 2002, 60 seats with 50% in 2004, 52 seats with 45.25% in 2006, 46 seats with 46% in 2008, and 60 seats with 53.50% in 2010. JA219–20, 223–24. Under Act 43, they won 60 seats with 48.6% of the vote in 2012, and 63 seats with 52% of the vote in 2014. JA219–20, 224.

65
The similarities between the results under the 2002 court-drawn map and the results under Act 43 illustrate that the dissent below was correct when it explained that, to achieve the proportional representation that Plaintiffs desire, Republicans would have needed to “engage in heroic levels of nonpartisan statesmanship” by abandoning their advantage under the 2002 court-drawn map. J.S. App. 245a–46a. Indeed, had Republicans intended only to retain their advantage under the 2002 court-drawn map and thus redistricted in the “most neutral way [a federal court] could conceive,” Baumgart, 2002 WL 34127471, at *7—sticking as closely as possible to the prior, courtdrawn map, while “adjusting it for population deviations,” id.—Plaintiffs would almost certainly condemn that map as too partisan.
The lengths that Republicans would have had to go in order to satisfy Plaintiffs’ proportional representation preferences are further illustrated by Professor Mayer’s Demonstration Plan. Mayer created his Plan to drive down the efficiency gap, Dkt. 148:143, including placing 37 incumbents (of which 26 were Republicans) into districts with other incumbents, see Dkt. 149:112–18; Ex. 520 (interactive map).12 Mayer was only able to achieve his roughly proportional representation results for the 2012 election by drawing, with the benefit of hindsight, 13 districts that he modeled as narrow Democrat wins under the 2012 statewide vote totals. Dkt. 149:93–101; see Defs. Ex.
12 Interactive map available at http://arcg.is/0TTPeS.

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568, Dkt. 147:27–28. With those narrowly Democrat districts assumed, Mayer projected that Democrats would have won 49 seats if they obtained 51.2% of the vote in 2012, see SA309 (center column), a percentage of the vote that, according to Professor Jackman’s calculations, the Democrats did in fact approximate in 2012, JA224 (estimating that Democrats won 51.4% of the vote in 2012). But the long-term consequences of Mayer’s results-driven approach show how difficult it is for Democrats to achieve proportional representation in Wisconsin given today’s political conditions. If one removes from Mayer’s swing analysis the unrealistic assumption that every 2012 incumbent would run in 2014, see supra pp. 58–59, then Republicans would have been projected to win 63 seats with around 52% of the vote under Mayer’s Plan in 2014. This is because, under a uniform swing analysis of the type that Gaddie employed (and that the district court relied upon, see supra p. 21), Mayer’s 13 reverse-engineered, narrowly Democrat districts from 2012 would flip to Republican control in 2014 when Republicans increased their statewide Assembly vote by 3.4%. Dkt. 149:94–101. Sixty-three seats is the same number that Republicans actually won in 2014 under Act 43, with an estimated 52% of the vote. See JA219–20, 224.
* * *
This Court has never found that a state legislature engaged in unlawful partisan gerrymandering.

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Plaintiffs have presented this Court with no new, historical-based redistricting principles and no new, administrable test. They have, instead, recycled arguments that this Court has already rejected, while attacking a plan that complies with traditional redistricting principles and is strikingly similar to the immediately prior, court-drawn plan. Given the jurisdictional and merits-based deficiencies in Plaintiffs’ claims, their lawsuit must be dismissed.
CONCLUSION
The judgment of the district court should be reversed.

68 Respectfully submitted,

BRAD D. SCHIMEL Attorney General

MISHA TSEYTLIN Solicitor General Counsel of Record

KEVIN M. LEROY Deputy Solicitor General

RYAN J. WALSH Chief Deputy Solicitor General

State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

AMY C. MILLER Assistant Solicitor General
BRIAN P. KEENAN Assistant Attorney General

July 2017

 
 No. 16-1161

IN THE
Supreme Court of the United States
______________
BEVERLY R. GILL, ET AL., Appellants, v.
WILLIAM WHITFORD, ET AL., Appellees.
______________
On Appeal from the United States District Court for the Western District of Wisconsin ______________
BRIEF FOR APPELLEES ______________

Jessica Ring Amunson

Paul M. Smith

JENNER & BLOCK LLP

Counsel of Record

1099 New York Ave., NW,

J. Gerald Hebert

Ste. 900

Danielle M. Lang

Washington, DC 20001

CAMPAIGN LEGAL CENTER

Michele Odorizzi MAYER BROWN, LLP 71 S. Wacker Dr. Chicago, IL 60606

1411 K St., NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org

Douglas M. Poland RATHJE & WOODWARD, LLC 10 E. Doty St., Ste. 507 Madison, WI 53703

Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th St., Ste. 510 Chicago, IL 60637

Peter G. Earle LAW OFFICE OF PETER G. EARLE 839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202

Ruth M. Greenwood Annabelle E. Harless CAMPAIGN LEGAL CENTER 73 W. Monroe St., Ste. 322

Chicago, IL 60603

Attorneys for Appellees

i QUESTIONS PRESENTED
1. Whether the district court correctly held that Appellees have standing to challenge in its entirety the district plan for Wisconsin’s State Assembly as an unconstitutional partisan gerrymander?
2. Whether the district court correctly held that partisan gerrymandering claims are justiciable pursuant to the test the court adopted—requiring discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification?
3. Whether the district court correctly held that compliance with traditional districting criteria is not a safe harbor that precludes any possibility of liability for partisan gerrymandering?
4. Whether Appellants are entitled to a remand on the issue of entrenchment even though Appellees and the district court emphasized the durability of a party’s advantage throughout the litigation?

ii TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................i
TABLE OF AUTHORITIES ...........................................v
STATEMENT .....................................................................1
I. Act 43 Was Intended to Give Republicans a Large and Durable Advantage...........................4
II. Act 43 Has Exhibited a Large and Durable Pro-Republican Partisan Asymmetry................10
III. No Neutral Justification Exists for Act 43’s Large and Durable Partisan Asymmetry. ............................................................ 17
IV. The District Court Invalidated Act 43 After Extensive Discovery and a FourDay Trial. ................................................................19
V. Partisan Gerrymandering Has Become More Extreme, More Persistent, and More Impactful. ................................................................ 21
SUMMARY OF ARGUMENT.......................................24
ARGUMENT ..................................................................... 28
I. Appellees Have Standing to Bring Their Statewide Claim.....................................................28
II. Partisan Gerrymandering Claims Are Justiciable Under the District Court’s Test. .........................................................................32
A. The District Court’s Test Is Judicially Discernible................................33

iii

1. The Test Captures the

Constitutional

Harms

Inflicted by Partisan

Gerrymandering. ...........................34

2. The Test Is Based on the

“Comprehensive

and

Neutral Principle” of

Partisan Symmetry. ......................37

3. The Test Is Rooted in the

Court’s

Partisan

Gerrymandering Case Law..........41

B. The District Court’s Test Is Judicially Manageable...............................44

1. The Test’s Intent and Justification Prongs Have Already Been Used Successfully. ...................................44

2. The Test’s Effect Prong Is Easy to Administer. ......................46

3. The Test Reflects Political Realities. .........................................49

4. The Test’s Implications Are Neutral and Limited. ....................51

5. Compliance with the Test Is Straightforward. ............................ 54

III. Compliance with Traditional Districting Criteria Is Not a Safe Harbor. ............................56

IV. Appellants Are Not Entitled to a Remand. ..................................................................60

iv CONCLUSION .................................................................62

v TABLE OF AUTHORITIES
CASES
Alabama Legislature Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) .......................... 24
Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015)..................................... 1, 4, 39
Baker v. Carr, 369 U.S. 186 (1962) ............................ 30
Baldus v. Members of Wisconsin Government Accountability Board, 843 F. Supp. 2d 955 (E.D. Wis. 2012) ....................................................... 4
Baldus v. Members of Wisconsin Government Accountability Board, 849 F. Supp. 2d 840 (E.D. Wis. 2012) ............................................. 5, 9, 10
Benisek v. Lamone, No. JKB-13-3233, slip op. (D. Md. Aug. 24, 2017) ...................................... 1, 22
Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017)...................... 58, 59
Brown v. Thomson, 462 U.S. 835 (1983) ............. 45, 59
Bush v. Vera, 517 U.S. 952 (1996).............................. 49
Chapman v. Meier, 420 U.S. 1 (1975) ....................... 45
Cooper v. Harris, 137 S. Ct. 1455 (2017)................... 31
Davis v. Bandemer, 478 U.S. 109 (1986)...........passim
Elrod v. Burns, 427 U.S. 347 (1976) .......................... 36
Evenwel v. Abbott, 136 S. Ct. 1120 (2016)................. 29
Gaffney v. Cummings, 412 U.S. 735 (1973) ....... 45, 56

vi Georgia v. Ashcroft, 539 U.S. 461 (2003),
superseded by statute as stated in Alabama Legislature Black Caucus v. Alabama, 135 S. Ct. 1257 (2015).................................................... 12
Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016) .................... 45
Jenness v. Fortson, 403 U.S. 431 (1971) ................... 35
Karcher v. Daggett, 462 U.S. 725 (1983) ................... 12
Kilgarlin v. Hill, 386 U.S. 120 (1967)........................ 45
Larios v. Perdue, 306 F. Supp. 2d 1190 (N.D. Ga. 2003) .................................................................. 29
League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) ............................passim
Maestas v. Hall, 274 P.3d 66 (N.M. 2012)................. 11
Mahan v. Howell, 410 U.S. 315 (1973) .......... 45, 48, 59
Matal v. Tam, 137 S. Ct. 1744 (2017) ........................ 36
McConnell v. FEC, 540 U.S. 93 (2003), overruled by Citizens United v. FEC, 558 U.S. 310 (2010)........................................................ 35
Miller v. Johnson, 515 U.S. 900 (1995) ... 30, 53, 58, 59
Pope v. County of Albany, No. 11-cv-07361, 2014 WL 316703 (N.D.N.Y. Jan. 28, 2014) ......... 29
Prosser v. Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992) ................................................ 9, 11
Reynolds v. Sims, 377 U.S. 533 (1964).. 1, 4, 29, 32, 35

vii Robertson v. Bartels, 148 F. Supp. 2d 443
(D.N.J. 2001), summarily aff’d, 534 U.S. 1110 (2002) .............................................................. 11
Rogers v. Lodge, 458 U.S. 613 (1982)......................... 35
Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995) ........................... 36
Shaw v. Hunt, 517 U.S. 899 (1996) ............................ 29
Shaw v. Reno, 509 U.S. 630 (1993)....................... 30, 58
Swann v. Adams, 385 U.S. 440 (1967) ...................... 48
Thornburg v. Gingles, 478 U.S. 30 (1986) ........... 32, 48
United States v. Hays, 515 U.S. 737 (1995) .............. 30
Vieth v. Jubelirer, 541 U.S. 267 (2004)..............passim
Warth v. Seldin, 422 U.S. 490 (1975) ............. 24, 28, 29
White v. Regester, 412 U.S. 755 (1973) ...................... 48
OTHER AUTHORITIES
Br. of Republican National Committee as Amicus Curiae, Davis v. Bandemer, 478 U.S. 109 (1986), 1985 WL 670030 ......................... 52
Devin Caughey et al., Partisan Gerrymandering and the Political Process, 16 Election L.J. (forthcoming 2017), http://cwarshaw.scripts.mit.edu/papers/CT W_efficiency_gap_170515.pdf .............................. 23
Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting, 16 Election L.J. (forthcoming 2017), http://www.umich.edu/~jowei/Political_Ge ography_Wisconsin_Redistricting.pdf ......... 19, 55

viii Jowei Chen & Jonathan Rodden, Cutting
Through the Thicket, 14 Election L.J. 331 (2015) ....................................................................... 56
Gary W. Cox & Jonathan N. Katz, Elbridge Gerry’s Salamander (2002) .................................. 54
Nicholas Eubank & Jonathan Rodden, Who Is My Neighbor? The Spatial Efficiency of Partisanship (Aug. 23, 2017), https://papers.ssrn.com/sol3/papers.cfm?ab stract_id=3025082 .................................................. 19
John N. Friedman & Richard T. Holden, Optimal Gerrymandering, 98 Am. Econ. Rev. 113 (2008) ....................................................... 23
Elmer C. Griffith, The Rise and Development of the Gerrymander (1907) ................................... 22
Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 Election L.J. 2 (2007) ............. 11, 12, 47
Ellen D. Katz et al., Documenting Discrimination in Voting, 39 U. Mich. J.L. Reform 643 (2006) .................................................. 54
Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312 (2015)......................................... 13
Anthony J. McGann et al., Gerrymandering in America (2016) ....................................................... 22

ix Eric McGhee, Measuring Partisan Bias in
Single-Member District Electoral Systems, 39 Legis. Stud. Q. 55 (2014) .................................. 12
National Conference of State Legislatures, Redistricting Law 2010 (2009) ............................. 55
Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28 (2004) .................................................................. 56
Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. Rev. 530 (2011).......................... 23, 50
Corwin D. Smidt, Polarization and the Decline of the American Floating Voter, 61 Am. J. Pol. Sci. 365 (2017) ................................................. 23

1 STATEMENT
“Partisan gerrymanders . . . are incompatible with democratic principles.” Ariz. State Legis. v. Ariz. Indep. Redist. Comm’n, 135 S. Ct. 2652, 2658 (2015) (quotation marks and alterations omitted). They violate the Equal Protection Clause by discriminating against the targeted party’s voters, preventing their ballots from translating into “fair and effective representation.” Reynolds v. Sims, 377 U.S. 533, 565-66 (1964). They thus can entrench the line-drawing party in power, even if that party lacks majority support among the electorate. Gerrymanders also amount to forbidden viewpoint discrimination in contravention of the First Amendment. They “penaliz[e] citizens”—by diluting their electoral influence—“because of their . . . association with a political party, or their expression of political views.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment).
As the record in this case makes clear, partisan gerrymanders have become more common, more severe, and more durable in their effects since this Court last considered their constitutionality more than a decade ago. This is the product of better map-drawing technology utilizing more sophisticated voter data about an increasingly polarized electorate. The result, in too many states, has been a subversion of democracy, as officeholders have wrested power from voters. As Judge Niemeyer put it recently, “The problem is cancerous, undermining the fundamental tenets of our form of democracy.” Benisek v. Lamone, No. JKB-133233, slip op. at 27 (D. Md. Aug. 24, 2017) (Niemeyer, J., dissenting).

2 In this Court’s decision in Vieth, not a single Justice disagreed with the principle that the excessive injection of politics into redistricting severely distorts democracy and violates the Constitution. 541 U.S. at 292 (plurality opinion); id. at 314-17 (Kennedy J., concurring); id. at 317-18 (Stevens, J., dissenting); id. at 343 (Souter, J., dissenting); id. at 355 (Breyer, J., dissenting). Nor do Appellants disagree with that principle. Instead, they argue that courts are powerless to redress this affront to the Constitution, because, they say, there is no principled way to distinguish between permissible partisanship in redistricting and unlawful gerrymandering.
The district court properly rejected this argument. The three-pronged test the court derived from this Court’s jurisprudence provides a judicially discernible and manageable approach for identifying district plans that transgress basic constitutional norms. Under this test, before invalidating a plan, a court must make a series of findings. First, it must find that the map was designed with discriminatory intent: “to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation.” JSA109a-110a.1 Second, it must determine that the map causes a “large and durable” discriminatory effect: one that is “sizeable” and likely to “persist throughout the decennial period.” JSA166a, 172a-173a. And third, it must conclude that there is no valid justification for this effect: no way to explain it “by
1 Appellees abbreviate Volume I of the Joint Appendix “JA,” Volume II of the Joint Appendix “SA,” and the Jurisdictional Statement Appendix “JSA.”

3 the legitimate state prerogatives and neutral factors that are implicated in the districting process.” JSA178a.
After extensive discovery and a four-day trial, the district court applied this test and held that the plan for the Wisconsin State Assembly, Act 43, is unconstitutional. The court found, first, that Act 43 was crafted with an obsessive focus on partisan advantage. Its drafters systematically cracked and packed Democratic voters, seeking to guarantee Republicans a supermajority of Assembly seats even if they garnered only a minority of the statewide vote. Second, the court concluded that Act 43 performed exactly as intended. According to quantitative measures of partisan asymmetry, “[i]t is undisputed that, from 1972 to 2010, not a single legislative map in the country was as asymmetric in its first two elections” as Act 43. JA120a. This asymmetry is so deeply rooted that it would take an “‘unprecedented political earthquake’” to dislodge it. JSA164a. And third, the court determined that there was no neutral justification for Act 43’s discriminatory effect. To the contrary, several sets of alternative maps demonstrated that Appellants could have achieved their valid redistricting goals without handicapping either party’s supporters.
This Court should affirm because the district court’s test provides a judicially discernible and manageable standard for adjudicating partisan gerrymandering claims, and there is no dispute that under this standard, Act 43 is unconstitutional. An affirmance would strike a blow against a practice, engaged in by both parties, that increasingly threatens American democracy. By contrast, a decision barring any judicial remedy in cases

4 like this one would leave voters with nowhere to turn. The legislators who benefit from gerrymandering have no incentive to curb it. The voters victimized by the practice cannot oust their representatives even if they change their votes in very large numbers. Moreover, in most states, voters are unable to impose state constitutional constraints without legislative assent. It is thus only through the courts’ intervention that “fair and effective representation” can be restored. Reynolds, 377 U.S. at 565-66.
The impact of an affirmance would be neutral and limited, yet potent. Both parties’ gerrymanders would be equally vulnerable to legal challenge. Only a relatively small percentage of current plans would become actionable. But, as preparations begin for the next redistricting cycle, mapmakers would be powerfully reminded of “‘the core principle of republican government,’ namely ‘that the voters should choose their representatives, not the other way around.’” Ariz. State Legis., 135 S. Ct. at 2677 (citation omitted).
I. Act 43 Was Intended to Give Republicans a Large and Durable Advantage.
Throughout their brief, Appellants paint a rosy picture of Act 43’s enactment, with traditional redistricting criteria predominating and politics entering only as an afterthought. App. Br. 13-16, 63-66. But this narrative represents “a desperate attempt to hide from both the Court and the public the true nature of exactly what transpired in the redistricting process.” Baldus v. Members of Wis. Gov’t Accountability Bd., 843 F. Supp. 2d 955, 959 (E.D. Wis. 2012) (Baldus I). Indeed, the narrative is “almost laughable” because “partisan

5 motivation . . . clearly lay behind Act 43.” Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 843 (E.D. Wis. 2012) (Baldus II).
The district court exposed the “true nature” of Act 43’s enactment in painstaking detail. When the process commenced, in early 2011, Republicans enjoyed full control of Wisconsin’s state government. This was the first time in more than forty years that there was unified government at the start of a redistricting cycle. JSA 9a12a. The Republican legislative leadership immediately launched an elaborate effort to “secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade.” JSA140a. The leadership began by outsourcing the plan’s design to a private law firm, thus avoiding ordinary rules of legislative transparency. JSA12a; Exs. 355-356. This firm set up a “map room” to which only a handful of attorneys and legislative aides had access. JSA12a; SA355. The crafting of Act 43 took place, in secret, in this room. Id.
Next, Act 43’s drafters created “composite scores” that predicted electoral performance by averaging Republican candidates’ vote shares in recent statewide races. JSA126a-127a. To assist the drafters with their analyses, the leadership retained political scientist Professor Keith Gaddie. He constructed a regression model that used past Assembly election results to assess the underlying partisan character of every geographic unit in Wisconsin. JSA 127a. He wrote in a memo that this model would not be used to “create[] a fair, balanced, or even a reactive map.” SA322. Rather, it would be used to verify the accuracy of the drafters’ composite scores.

6 Id. The drafters sent their scores to Professor Gaddie, who confirmed that they were an “almost perfect proxy” for his more sophisticated measure. Ex. 175.
Armed with these scores, Act 43’s authors designed a series of provisional plans that combined the authors’ names with the plans’ goals: “Adam Assertive,” “Joe Aggressive,” and the like. JSA19a-20a. For each of these plans, the authors generated a spreadsheet that tallied each district’s expected electoral performance. SA32337, 353-54, 356-58. In doing so, they estimated that Republicans would win 48.6% of the statewide Assembly vote. Id. For this minority of the vote, the plans steadily ratcheted upward the expected number of Republican seats: from forty-nine (out of ninety-nine) under the court-drawn 2000s map to a supermajority of fifty-nine under the “Final Map.” JSA129a-130a; SA359.
Beyond the plan-specific spreadsheets, Act 43’s drafters analyzed their maps’ electoral implications in several more ways. Their “Tale of the Tape” document, for example, tracked the numbers of “GOP” and “DEM” seats under four separate plans. JSA133a; SA340-43. It trumpeted that under the 2000s map, “49 seats are 50% [Republican] or better,” while under the near-final “Team map,” “59 Assembly seats are 50% or better.” Id. Similarly, the drafters sorted the Team Map’s districts into nine categories: “Statistical Pick Up,” “GOP seats strengthened a lot,” “GOP seats strengthened a little,” “GOP Donors to the Team,” “DEMS weakened,” “Pairings,” and so on. JSA133a-135a; SA344-45. Fully twenty-five Republican seats were strengthened. Five Democratic incumbents were also pitted against

7 Republican incumbents in districts that were safely (at least 57%) Republican. Id.
To create this advantage, Act 43’s authors both “cracked” Democratic voters among numerous districts and “packed” them in others. The first pair of maps below highlight cracking in and around Milwaukee. A series of elongated districts (all won by Republican candidates) extract urban Democratic voters from Milwaukee County and combine them with larger numbers of suburban Republicans in Ozaukee, Washington, and Waukesha Counties. The result is a reduction in the number of Democratic districts in the region from four to two. The second pair of maps illustrate packing in Kenosha and Racine. Four lakeside districts previously won by Democrats are collapsed into three even more heavily Democratic districts, in the process unnecessarily dividing Kenosha and Racine Counties.2
These examples could be multiplied many times over. In sum, Act 43’s cracking and packing produced fortytwo districts where Republicans were expected to receive between 50% and 60% of the vote, compared to only seventeen such districts for Democrats. There were also eight districts where Democrats were expected to receive more than 80% of the vote, compared to zero such districts for Republicans. JSA147a-148a; SA67.
2 The shading of these maps is based on the composite scores created by Act 43’s drafters to predict electoral performance. SA325.

8
The district court found that Act 43’s authors not only intended to achieve a large Republican advantage, but also “were concerned with, and convinced of, the durability of their plan.” JSA139a. Notably, the spreadsheet for the Final Map showed the number of “Swing” seats plummeting from nineteen to ten. JSA133a; SA325. With so few competitive seats, a gerrymander becomes even harder to uproot. Additionally, the Legislature’s consultant, Professor Gaddie, conducted “sensitivity testing” to evaluate Act 43’s effects over a wide range of electoral conditions. He swung the expected statewide vote by up to ten percentage points in each party’s direction, and then calculated what each party’s performance would be in each district if it swung by the same margin as the statewide vote. JSA131a. This testing revealed that

9 “Democrats . . . would need 54% of the statewide vote to capture a simple majority of Assembly seats”—a feat achieved just once by either party over the last generation. JSA47a n.124, 135a; SA339.3
In contrast to their relentless focus on partisan advantage, Act 43’s drafters paid little attention to traditional districting principles. As the district court found, “measures of traditional districting criteria were [not] being scrutinized on a regular basis or with the intensity that partisan scores were being evaluated.” JSA130a n.195. As a consequence, Act 43 divided fiftyeight of seventy-two counties, which was seven more than any other plan in Wisconsin’s modern history. JA216. Act 43’s districts were also less compact, on average, than those of any other Wisconsin map for which data is available. Id. Act 43 further moved more than two million people into new districts, or seven times more than was necessary to attain population equality. JSA214a. It paired twenty-two incumbents as well, or six more than a court had previously paired in its Assembly and Senate plans combined. Ex. 178 at 34; see Prosser v. Elections Bd., 793 F. Supp. 859, 871 (W.D. Wis. 1992). And Act 43’s initial treatment of Latino voters in Milwaukee was so deficient that portions of the map were ruled unlawful under Section 2 of the Voting Rights Act. See Baldus II, 849 F. Supp. 2d at 854-58.
3 Between 1990 and 2016, a party exceeded 54% of the statewide vote only in 2006. SA222. Appellants note that Professor Gaddie’s sensitivity testing did not take into account incumbency. App. Br. 57. This is true—and means that Democrats would need substantially more than 54% of the statewide vote to oust enough Republican incumbents to win a majority of Assembly seats.

10 Moreover, “upending more than a century of practice,” new ward lines were drawn after Act 43 was enacted. Id. at 846. In every previous Wisconsin redistricting, municipalities had designed wards first, and districts had then faithfully followed the wards’ boundaries. Id
After Act 43 was fine-tuned in secret for four months, it was introduced, debated, and passed (on a party line vote) in nine days in July 2011. JSA29a. Promoting the bill, one of Act 43’s drafters told the Republican caucus, “The maps we pass will determine who’s here 10 years from now. . . . We have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.” SA330.
II. Act 43 Has Exhibited a Large and Durable Pro-Republican Partisan Asymmetry.
The district court concluded that “[i]t is clear that the drafters got what they intended to get.” JSA146a. Act 43 in fact “secured for Republicans a lasting Assembly majority” by “allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%.” JSA145a. Strikingly, the 2012 election almost perfectly fulfilled the drafters’ forecasts. They had anticipated Republican candidates winning 48.6% of the statewide vote along with fifty-nine Assembly seats. SA358. Republicans indeed won 48.6% of the vote, but converted this vote share into sixty rather than fiftynine seats. JSA148a. In both 2014 and 2016, Republicans received 52.0% of the statewide vote. With this narrow majority, they won sixty-three seats in 2014 and sixtyfour seats in 2016. Id.; Br. of Eric McGhee as Amicus Curiae (“McGhee Br.”) at 33.

11 The district court’s finding that Act 43 produced a discriminatory effect was “further bolstered” by measures of partisan asymmetry that social scientists have developed to assess the severity of partisan gerrymandering. JSA159a. Partisan symmetry is the intuitive idea that “‘the electoral system [should] treat similarly-situated parties equally’” so that they are able to translate their popular support into legislative representation with approximately equal ease. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (“LULAC”) (Stevens, J., concurring in part and dissenting in part) (citation omitted). Partisan symmetry is “widely accepted by scholars as providing a measure of partisan fairness in [single-memberdistrict] electoral systems.” Id. Indeed, “for many years such a view has been virtually a consensus position of the scholarly community.” Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 Election L.J. 2, 6 (2007). Precisely because of its widespread acceptance, line-drawers (including in Wisconsin) have often sought to achieve partisan symmetry when crafting their maps. See, e.g., Robertson v. Bartels, 148 F. Supp. 2d 443, 459 (D.N.J. 2001), summarily aff’d, 534 U.S. 1110 (2002); Prosser, 793 F. Supp. at 868; Maestas v. Hall, 274 P.3d 66, 79 (N.M. 2012).
The Court discussed a particular asymmetry metric, usually called “partisan bias,” in LULAC. See 548 U.S. at 419-20 (opinion of Kennedy, J.); id. at 466 (Stevens, J., concurring in part and dissenting in part). Partisan bias is defined as the difference between the shares of seats that the major parties would win if they each received

12 the same share (typically 50%) of the statewide vote. See id. Justice Kennedy correctly observed that partisan bias “depend[s] on conjecture” about what would transpire in a hypothetical tied election. Id. at 420 (opinion of Kennedy, J.). This conjecture is quite speculative when one party predominates statewide. See Grofman & King, supra, at 18-19. But in a competitive jurisdiction like Wisconsin, where both parties receive close to 50% of the statewide vote, the adjustments needed to simulate a tied election are minor, and partisan bias can be used reliably. See id.
In this litigation, Appellees also presented evidence about another measure of partisan asymmetry: the “efficiency gap.”4 This metric is based on the insight— repeatedly expressed in the Court’s opinions—that partisan gerrymandering is always carried out by cracking a party’s supporters among many districts, in which their preferred candidates lose by relatively narrow margins; and/or by packing a party’s backers in a few districts, in which their preferred candidates win by enormous margins. See, e.g., Vieth, 541 U.S. at 286 n.7 (plurality opinion); Davis v. Bandemer, 478 U.S. 109, 117 n.6 (1986) (plurality opinion); Karcher v. Daggett, 462 U.S. 725, 754 n.13 (1983) (Stevens, J., concurring). As the Court has recognized, both cracking and packing produce votes that are “wasted” in the sense that they do not contribute to a candidate’s victory. See, e.g., Georgia v. Ashcroft, 539 U.S. 461, 469 (2003); Bandemer, 478 U.S. at 117 n.6 (plurality opinion). In the case of
4 This metric was developed in a peer-reviewed political science journal. See Eric McGhee, Measuring Partisan Bias in SingleMember District Electoral Systems, 39 Legis. Stud. Q. 55 (2014).

13 cracking, all votes cast for the losing candidate are “wasted.” In the case of packing, all votes cast for the winning candidate, above the 50% (plus one) threshold needed for victory, are “wasted.” The efficiency gap is calculated by taking one party’s total wasted votes in an election, subtracting the other party’s total wasted votes, and dividing by the total number of votes cast. It captures in a single number the extent to which district lines crack and pack one party’s voters more than the other party’s voters. JSA159a-162a.5
Unlike partisan bias, the efficiency gap does not “depend on conjecture” about what would occur in a hypothetical election. LULAC, 548 U.S. at 420 (opinion of Kennedy, J.). As the district court found, it “is calculated using the results of actual elections,” and so “does not suffer from this drawback.” JSA169a n.300. The efficiency gap is therefore meaningful no matter how competitive or uncompetitive a jurisdiction happens to be. In a competitive state, the efficiency gap and partisan bias are highly correlated, and so generally point in the same direction. SA346; Dkt. 149:191-93. But in an uncompetitive state, as already noted, partisan bias is less dependable. Id.
5 Social scientists also assess partisan gerrymandering by calculating the difference between a party’s mean vote share and median vote share across all of a plan’s districts. When a party’s median vote share is smaller than its mean vote share, the district distribution is skewed against it. See, e.g., Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law, 14 Election L.J. 312 (2015). The mean-median difference is mathematically related to partisan bias, see id. at 315, and thus shares most of its properties.

14 Appellees showed at trial that Wisconsin’s Assembly plans were highly symmetric from the 1970s through the 1990s. Over this three-decade period, they averaged a partisan bias of 0.4% and an efficiency gap of -1.5%. SA347. (By convention, positive scores denote proDemocratic asymmetries and negative scores proRepublican asymmetries.) Wisconsin’s 2000s map was moderately asymmetric—though a far cry from Act 436—averaging a partisan bias of -6.6% and an efficiency gap of -7.6%. Id. The reason may be that the court relied on the Republican litigants’ expert when designing its plan. As one of Act 43’s drafters boasted in an e-mail, “Without Grofman in 2001 we would not have succeeded in getting the map we did get as [the court] followed his direction in drawing the map.” SA352.
In the current cycle, Act 43 exhibited partisan biases of -12.6%, -11.6%, and -12.7%, respectively, in 2012, 2014, and 2016. In other words, had these elections been perfectly tied, Republicans would have won between 61.6% and 62.7% of the seats in the Assembly. SA347; McGhee Br. at 33. Act 43 also exhibited efficiency gaps of -13.3%, -9.6%, and -10.7% in 2012, 2014, and 2016. That is, votes for Democratic Assembly candidates were wasted at a rate from 9.6 to 13.3 percentage points higher than the rate at which Republican votes were wasted. Id.; JSA173a.7
6 Act 43’s drafters expected Act 43 to yield ten more Republican seats than the 2000s map. JSA129a-130a; SA359.
7 Act 43 further exhibited mean-median differences of -5.6%, -6.9%, and -7.0% in 2012, 2014, and 2016. Dkt. 134:39; McGhee Br. at 33.

15 These asymmetries are not only more severe than any that Wisconsin has experienced over the last halfcentury, but also extreme outliers compared to the nation as a whole. Appellees’ expert, Professor Simon Jackman, calculated the average efficiency gap of almost every state house plan in America from 1972 to 2014. SA187. As the below chart illustrates, Act 43’s skew was exceeded by only four other plans over this period. JSA50a. In fact, it is undisputed that prior to this decade, “not a single legislative map in the country was as asymmetric in its first two elections” as Act 43. JA120.

16 That Act 43 has produced historically large asymmetries in three straight elections—more than half of a redistricting cycle—itself establishes “the durability of Act 43’s pro-Republican [tilt].” JSA173a. These election results were corroborated by Professor Jackman’s analysis of how plans’ initial efficiency gaps are related to the average efficiency gaps they exhibit over their lifetimes. Based on this analysis, the district court found that “Republicans’ ability to translate their votes into seats will continue at a significantly advantageous rate through the decennial period.” JSA173a-174a.
The election results were further supported by the sensitivity testing conducted by both of Appellees’ experts (Professor Jackman and Professor Kenneth Mayer) and the Legislature’s consultant (Professor Gaddie). As noted above, Professor Gaddie did not take incumbency into account, and determined that Democrats would need 54% of the statewide vote to win a majority of the Assembly. JSA135a; SA339. Professor Jackman did consider incumbency, and showed that Act 43 would continue exhibiting double-digit proRepublican efficiency gaps even if Democrats reached 56% of the statewide vote (or five points better than their 2012 showing). JSA165a; SA360. Professor Mayer also considered incumbency, and concluded that even in the event of the largest Democratic wave in a generation, Democrats would still win only forty-five Assembly seats. JSA152a; SA310.8 Thus, as the district
8 Appellants criticize Professor Mayer for considering incumbency one paragraph after attacking Professor Gaddie for not taking incumbency into account. App. Br. 57-59. No matter how they

17 court noted, “[t]here was consensus among the experts”—for both sides—about the persistence of Act 43’s skew under different electoral conditions. JSA149a n.255.
III. No Neutral Justification Exists for Act 43’s Large and Durable Partisan Asymmetry.
The district court further found that Act 43’s large and durable partisan asymmetry could not be justified by Wisconsin’s political geography or by any efforts to comply with traditional districting criteria. These factors “simply do[] not explain adequately the sizeable disparate effect seen in 2012 and 2014.” JSA180a. This finding is backed, first, by Wisconsin’s Assembly plans in previous decades. All of these maps exhibited much smaller partisan biases and efficiency gaps than Act 43. SA347. They did so, moreover, while splitting significantly fewer counties than Act 43, pairing fewer incumbents, not violating the Voting Rights Act, and performing equally well in terms of contiguity, compactness, municipality splits, and compliance with the one person, one vote requirement. JA216.
Second, as the district court emphasized, Act 43’s own authors “produced several statewide draft plans that performed satisfactorily on legitimate redistricting criteria without attaining the drastic partisan advantage demonstrated . . . in Act 43.” JSA218a. One draft, for example, forecast only three more Republican seats than the 2000s map—compared to the ten of the “Final Map.” JSA207a-208a. This map, and others like it in the record,
treated incumbency, all of the experts reached the same conclusion about the durability of Act 43’s skew.

18 demonstrate that Wisconsin’s current political geography is perfectly compatible with far more symmetric plans.
And third, as the district court also stressed, Professor Mayer’s demonstration plan showed that “it is very possible to draw a map with much less of a partisan bent than Act 43 and, therefore, that Act 43’s large partisan effect is not due to Wisconsin’s natural political geography.” JSA217a. The demonstration plan matched or exceeded Act 43 on every federal and state criterion. It had a total population deviation below 1%, the same number of majority-minority districts, somewhat more compact districts, and somewhat fewer political subdivision splits. JSA212a. The demonstration plan’s efficiency gap, however, was fully ten percentage points lower than that of Act 43. Id.9
Appellants do not challenge these findings (or any others) as clearly erroneous. Nevertheless, they claim that Wisconsin’s political geography inherently favors Republicans based on an article by Professors Jowei Chen and Jonathan Rodden. App. Br. 50-51. The article Appellants cite, however, does not address Wisconsin at all. In subsequent studies, moreover, Professors Chen and Rodden did analyze Wisconsin’s political geography,
9 Appellants recycle complaints about the demonstration plan that the district court rejected. App. Br. 65-66. In particular, while it is true that if incumbency is ignored, Republicans would pick up several seats if the statewide vote shifted in their direction, “had the opposite happened, and Democrats received a higher vote share . . . the EG would have skewed toward the Democrats.” JSA213a. “This is because the Demonstration Plan was designed to have competitive districts, and the EG will be reactive to such districts.” JSA213a-214a.

19 and found that it does not sizably advantage either party. Using his simulation technique, Professor Chen created two hundred separate Wisconsin Assembly plans without consulting any electoral data. Every one of these maps featured more compact districts than Act 43 and split fewer political subdivisions. Every one also exhibited a much smaller efficiency gap, thus refuting any claim that Wisconsin voters’ spatial patterns are responsible for Act 43’s skew. Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting, 16 Election L.J. (forthcoming 2017) (manuscript at 12), http://www.umich.edu/~jowei/Political_Geography_Wis consin_Redistricting.pdf.
Professor Rodden, in turn, directly studied how Democrats and Republicans are distributed in Wisconsin. He concluded that, if anything, Democrats enjoy a modest spatial advantage in redistricting for the Assembly. This is because they are “dispersed relatively efficiently across medium-size cities,” including “old industrial towns like Appleton, Neenah, Oshkosh, and Green Bay.” Nicholas Eubank & Jonathan Rodden, Who Is My Neighbor? The Spatial Efficiency of Partisanship 2, 14 (Aug. 23, 2017), https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3025082.
IV. The District Court Invalidated Act 43 After Extensive Discovery and a Four-Day Trial.
Appellees—a group of registered voters in Wisconsin who support the Democratic Party and its candidates—filed their complaint challenging Act 43 as an unconstitutional partisan gerrymander under the First and Fourteenth Amendments in July 2015. JA2565. The district court unanimously denied Appellants’

20 motion to dismiss. The court observed that members of this Court “have pointed to partisan symmetry as a theory with promise.” JA100. The court also explained that the efficiency gap does not require proportional representation because “an election’s results may have a small efficiency gap without being proportional or they may be proportional and still have a large efficiency gap.” JA99. The court further rebuked Appellants for their “mischaracterizations of plaintiffs’ proposed standard” and for “ignor[ing] step one and step three of plaintiff’s standard.” JA101-02.
Extensive discovery yielded a record of unprecedented scope. This record included, for the first time, (1) mapmakers’ own analyses of their drafts’ implications, (2) asymmetry scores for hundreds of plans over five redistricting cycles, (3) extensive sensitivity testing; and (4) several sets of alternative maps. Because of this evidence, the district court found that “[t]he record here is not plagued by the infirmities that have precluded the Court,” in Bandemer, Vieth, and LULAC, “from concluding that a discriminatory effect has been established.” JSA155a.
At the close of discovery, the district court unanimously denied Appellants’ motion for summary judgment. The court held that there remained contested factual issues with respect to each of the three prongs of Appellees’ test. The court also noted “the need ‘to define clear, manageable, and politically neutral standards for measuring [burdens] on representational rights,’” adding, “[t]his is exactly what plaintiffs are attempting to do with the efficiency gap.” JA129 (citation omitted).

21 The court further confirmed that “plaintiffs’ test does not require proportional representation.” JA130.
Over a four-day trial, Appellees presented evidence (summarized above) about each of their test’s three prongs. In November 2016, the district court adopted this test and ruled that, under it, Act 43 is unconstitutional. In January 2017, the district court enjoined further use of Act 43 and set a November 1, 2017 deadline for the enactment of a contingent remedial plan. JSA323a. Appellants appealed in February 2017. JSA334a. In June 2017, this Court agreed to hear the case, while staying any remedial proceedings pending the Court’s decision.
V. Partisan Gerrymandering Has Become More Extreme, More Persistent, and More Impactful.
Appellants begin their brief with a selective history of gerrymandering in the eighteenth and nineteenth centuries, apparently seeking to establish its historical pedigree. App. Br. 5-12. But malapportionment, racial vote dilution, and outright disenfranchisement have similar historical pedigrees and are no more constitutional. Nor does Appellants’ history undermine the conventional understanding of strange district shape (and other violations of traditional districting principles): that they are techniques that are sometimes used to implement partisan gerrymanders. That gerrymandering is not simply creating odd borders is confirmed by Elmer Griffith, the author on whom Appellants primarily rely. He writes that gerrymandering is “accomplished by forming into a few districts territory where the vote is overwhelmingly in

22 favor of the opposition; and on the other hand by spreading out the dominant party’s vote so as to carry the remaining districts by a safe but small margin.” Elmer C. Griffith, The Rise and Development of the Gerrymander 21 (1907). This passage is a pithy explanation of cracking and packing—the techniques at the heart of this case.
Appellants’ history also omits more recent developments, which are alarming. Analyzing district plans from 1972 onward, Professor Jackman showed at trial that partisan gerrymandering has surged to unprecedented levels of severity. At both the state legislative and congressional levels, the plans now in effect have exhibited the worst asymmetries in modern times. SA227; see Benisek, supra, slip op. at 27 (Niemeyer, J., dissenting) (“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy.”); Anthony J. McGann et al., Gerrymandering in America 4-5, 97-98 (2016). Professor Jackman also determined that gerrymanders’ persistence has increased markedly. In previous periods, a plan’s initial asymmetry was only a moderately strong predictor of its future performance. SA241. But in the present decade, plans that have begun skewed have typically continued to tilt in the same party’s direction as long as they have been in use. SA317-318.
There are two clear explanations for these troubling trends. One is that “[t]echnological advances have allowed gerrymanderers to gain better information about voters . . . and draw boundaries with a finer pen.”

23 John N. Friedman & Richard T. Holden, Optimal Gerrymandering, 98 Am. Econ. Rev. 113, 135 (2008). These advances include individual-level data from enhanced voter files, automated redistricting algorithms, and rigorous sensitivity testing. The other driver is voters’ rising partisanship. Split-ticket voting is rarer now than in earlier eras, and voters change their party preferences less from year to year. See, e.g., Corwin D. Smidt, Polarization and the Decline of the American Floating Voter, 61 Am. J. Pol. Sci. 365 (2017).
As voters have become more partisan, legislators have grown more polarized. Both in state legislatures and in Congress, there is now virtually no ideological overlap between Democratic and Republican legislators. See, e.g., Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. Rev. 530, 540 (2011). Extreme polarization exacerbates the effects of partisan gerrymandering. It means the Democrats or Republicans elected due to the practice are not “wishy-washy” moderates, but rather “hardcore” ideologues who render the legislature nonresponsive to voters’ wishes. Vieth, 541 U.S. at 288 n.9 (plurality opinion). As one recent study shows, an efficiency gap in a party’s favor causes both the legislature’s ideological midpoint and the state’s enacted laws to become significantly more extreme, even holding voters’ preferences constant. Just by drawing clever lines—without persuading a single voter—a party thus pulls policy outcomes toward its preferred pole. See Devin Caughey et al., Partisan Gerrymandering and the Political Process, 16 Election L.J. (forthcoming 2017) (manuscript at 17-23), http://cwarshaw.scripts.mit.edu/ papers/CTW_efficiency_gap_170515.pdf.

24 SUMMARY OF ARGUMENT
1. Appellees have standing to bring their statewide claim. As a matter of precedent, every partisan gerrymandering challenge this Court has heard has been statewide in nature. Yet the Court has never suggested that it lacked jurisdiction due to the plaintiffs’ lack of standing. More generally, standing “turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500 (1975). The “claim asserted” here is unquestionably statewide: the intentional, severe, durable, and unjustified dilution of Democratic votes throughout Wisconsin. It follows that if this claim is justiciable, Appellees have standing to pursue it.
The Court’s racial gerrymandering cases are not to the contrary. Crucially, the “claim asserted” in these cases is district-specific: that “race was improperly used in the drawing of the boundaries of one or more specific electoral districts.” Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015). Since this claim is limited to the design of particular districts, only these districts’ residents have standing to bring it. The racial gerrymandering cases are also inapposite here because they involve the injury of racial classification. The harms alleged in this case, in contrast, are the completely different ones of vote dilution and viewpoint discrimination.
2. Partisan gerrymandering claims are justiciable under the district court’s discernible and manageable test. As to discernibility, the test captures the constitutional wrongs of partisan gerrymandering. Gerrymandering violates both the Equal Protection Clause, by diluting the electoral influence of a targeted

25 group of voters, and the First Amendment, by penalizing these voters because of their political beliefs. The test accurately addresses these violations. A district plan that fails the test is deliberately, highly, persistently, and unjustifiably dilutive. Such a map also seeks to—and does—subject certain voters to disfavored treatment due to their political philosophy.
The district court’s test is also discernible because it is based on the concept of partisan symmetry. Partisan symmetry is a “comprehensive and neutral principle[] for drawing electoral boundaries.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). It is a “comprehensive” principle because it can be applied to any district plan. It is “neutral” as well because its very point is to treat the parties symmetrically in terms of the conversion of votes to seats. Partisan symmetry further corresponds to the Court’s conception of gerrymandering and is distinct from proportional representation.
The district court’s test is discernible as well because all of its elements are rooted in the Court’s partisan gerrymandering case law, which establishes that any gerrymandering standard should require showings of discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification. The test does just that.
The district court’s test is judicially manageable too. Its intent and justification prongs have already been employed—without any apparent difficulty—in other redistricting contexts. Likewise, its effect prong is easy to administer because the size and durability of a plan’s partisan asymmetry can be ascertained using reliable

26 social scientific techniques. As noted above, all asymmetry metrics tend to converge in competitive statewide environments like Wisconsin’s. None of these metrics’ scores—in Wisconsin or in any other state over nearly half a century—were disputed by Appellants. And there is widespread agreement that sensitivity testing is the appropriate method for evaluating the persistence of a plan’s skew.
The district court’s test is also workable because it reflects contemporary political realities. Both in Wisconsin and nationwide, party affiliation is the most potent driver of voter and legislator behavior. By examining the ballots cast for, and seats won by, each party’s candidates, the test focuses on the key aspects of modern voting and representation.
The district court’s test is “limited and precise” as well, in that its implications are confined to both parties’ most egregious gerrymanders. Vieth, 541 U.S. at 306-07 (Kennedy, J., concurring in the judgment). The test’s impact can be estimated by tallying the number of highly asymmetric plans designed by a single party in recent decades. This number is small, and pales compared to the vast volume of redistricting litigation over other claims. The number also includes roughly equal shares of proDemocratic and pro-Republican maps, thus dispelling any fear that the test is a stalking horse for partisan interests.
Nor is it difficult for jurisdictions to avoid liability under the district court’s approach. A state may ensure that its plan is not severely and durably asymmetric by using the same data and analyses as Act 43’s drafters— except to limit partisan unfairness rather than to

27 augment it. A state may also eliminate any possibility of discriminatory intent being found by adopting a bipartisan or nonpartisan redistricting process. And if a state learns that its political geography or its valid redistricting goals impel a significant asymmetry, it is not placed in an impossible position. Rather, it is insulated from liability because the asymmetry is then justified.
3. The Court should adhere to its holding in Vieth that noncompliance with traditional districting criteria is not an element of a partisan gerrymandering claim. As the plurality explained (and Justice Kennedy agreed), “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.” Id. at 298 (plurality opinion). Gerrymanders, that is, may exist even when they do not announce themselves with strange shapes or carved communities.
4. The Court should reject Appellants’ request for a remand on the issue of entrenchment. This issue was not sprung on Appellants after trial. Rather, from the very beginning of the case, both Appellees and the district court made clear their emphasis on the durability of a party’s advantage.

28 ARGUMENT
I. Appellees Have Standing to Bring Their Statewide Claim.
Despite effectively conceding that severe gerrymanders violate the Constitution, Appellants assert that no one has standing to seek redress for that constitutional harm. This claim is at war with the Court’s precedent. In every partisan gerrymandering case the Court has heard, the plaintiffs’ challenge was statewide in nature. See LULAC, 548 U.S. at 416 (opinion of Kennedy, J.); Vieth, 541 U.S. at 285-87 (plurality opinion); Bandemer, 478 U.S. at 127 (plurality opinion). Yet in none of these cases did a majority (or a plurality) of the Court hold (or hint) that the voters bringing the action did not have standing for this reason. To the contrary, six Justices in Bandemer agreed that “unconstitutional vote dilution” may be “alleged in the form of statewide political gerrymandering.” 478 U.S. at 132 (plurality opinion). In his controlling concurrence in Vieth, Justice Kennedy also repeatedly contemplated partisan gerrymandering claims proceeding on a statewide basis. See 541 U.S. at 312, 316 (Kennedy, J., concurring in the judgment). And in LULAC, five Justices left the door open to a test based on the inherently statewide concept of partisan symmetry. See, e.g., 548 U.S. at 420 (opinion of Kennedy, J.).
Even if it were not precluded by precedent, Appellants’ position would conflict with the precept that standing “turns on the nature and source of the claim asserted.” Warth, 422 U.S. at 500. Standing, that is, must be congruent with the kind of legal theory that is being advanced. This rule is followed fastidiously in each

29 redistricting domain. In a one person, one vote case, for example, the claim is that districts throughout a state have been malapportioned, thus overrepresenting certain voters and underrepresenting others. See Reynolds, 377 U.S. at 560. Accordingly, “any underrepresented plaintiff may challenge in its entirety the redistricting plan that generated his harm.” Larios v. Perdue, 306 F. Supp. 2d 1190, 1209 (N.D. Ga. 2003); see also Evenwel v. Abbott, 136 S. Ct. 1120, 1131 n.12 (2016) (“[S]tanding . . . has rested on plaintiffs’ status as voters whose votes were diluted.”).
In a racial vote dilution case under Section 2 of the Voting Rights Act, on the other hand, the claim is typically regional: that minority voters in a specific portion of a state have been denied an equal opportunity to elect the representatives of their choice. See Shaw v. Hunt, 517 U.S. 899, 917 (1996) (Shaw II) (noting that “a § 2 violation is proved for a particular area”). Therefore only minority voters who “reside in a[n] . . . area that could support additional [majority-minority districts]” have standing to sue. Pope v. Cty. of Albany, No. 11-cv0736, 2014 WL 316703, at *5 (N.D.N.Y. Jan. 28, 2014).
Under the logic of these cases, the dispositive question for standing purposes is whether Appellees’ claim is statewide in nature. If it is, then Appellees have standing to pursue it on a statewide basis. Any other result would drive an impermissible wedge between “the nature and source of the claim asserted,” Warth, 422 U.S. at 500, and the scope of Appellees’ standing. There is no doubt, of course, that Appellees’ theory applies statewide. The theory is that Act 43 intentionally, severely, durably, and unjustifiably dilutes Democratic

30 votes throughout Wisconsin. This theory may or may not be “judicially discoverable and manageable,” Baker v. Carr, 369 U.S. 186, 217 (1962), but it cannot be justiciable yet incapable of being advanced statewide.
Appellants resist this conclusion by invoking the Court’s racial gerrymandering cases. App. Br. 28-30. But as the district court correctly held, “[t]he rationale and holding of [these cases] have no application here.” JSA224a. Unlike Appellees’ theory, the claim in a racial gerrymandering challenge is clearly district-specific: “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 916 (1995). That is why only residents of the allegedly racially gerrymandered district have standing; only they “suffer the special representational harms racial classifications can cause in the voting context.” United States v. Hays, 515 U.S. 737, 745 (1995). Racial gerrymandering also involves the injury of voters being classified by race. In contrast, partisan gerrymandering entails the completely different harms of voters being subjected to vote dilution and viewpoint discrimination. See Shaw v. Reno, 509 U.S. 630, 649-50 (1993) (Shaw I) (“Classifying citizens by race . . . threatens . . . harms that are not present in our vote-dilution cases.”).
Recognition of standing to bring statewide partisan gerrymandering claims would not create any kind of “loophole” in racial gerrymandering doctrine. App. Br. 29-30. In fact, a viable partisan gerrymandering claim would improve that body of law by reducing litigants’ incentive to disguise their partisan grievances as racial

31 ones. As members of the Court have recently recognized, this incentive is very real. If a plaintiff can cause a court to “mistake[] a political gerrymander for a racial gerrymander,” then the racial gerrymandering suit is “transformed into [a] weapon[] of political warfare.” Cooper v. Harris, 137 S. Ct. 1455, 1490 (2017) (Alito, J., concurring in the judgment in part and dissenting in part). Such subterfuge would become less common if plaintiffs could simply bring partisan gerrymandering claims. They might win or they might lose these suits—but they would stop injecting partisanship into a doctrine where it does not belong.
Appellants reveal their impoverished understanding of voters’ interests when they contend that voters suffer a concrete harm only when their preferred candidates do not prevail in their own districts. App. Br. 30-32. Voters do have an interest in their district-level representation. But as the district court rightly held, they also have an interest in their collective representation in the legislature—in their ability as a group “to translate their votes into seats as effectively” as the other party’s supporters, JSA221a, and thus to have the same opportunity to influence the legislature’s composition and policymaking. Echoing Reynolds, Justice Kennedy has referred to this interest as voters’ “right[] to fair and effective representation.” Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment). Equivalently, the Vieth plurality called it the “degree of representation or influence to which a political group is constitutionally entitled.” Id. at 297 (plurality opinion).
Notably, if this interest did not exist, then neither would the Court’s one person, one vote or racial vote

32 dilution doctrines. After all, it is perfectly possible for a voter to elect her preferred candidate, in her own district, and for this district to be overpopulated. The cause of action for malapportionment presupposes that a voter also values “hav[ing] an equally effective voice in the election” of the legislature as a whole. Reynolds, 377 U.S. at 565. Likewise, on Appellants’ account, a minority voter in a “packed” district—who already elects the candidate of her choice—should not be able to bring a Section 2 claim. But the Court has always held that all minority residents in a given region may sue, because they all incur the “[d]ilution of racial minority group voting strength.” Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986).10
II. Partisan Gerrymandering Claims Are Justiciable Under the District Court’s Test.
Not only do Appellees have standing to allege a statewide partisan gerrymandering claim, but the claim itself is justiciable. Justiciability has two components: whether there is a standard for adjudicating the claim that is “judicially discernible in the sense of being relevant to some constitutional violation,” Vieth, 541 U.S. at 288 (plurality opinion), and whether the standard is “judicially manageable” in that it would produce outcomes that are “principled, rational, and based upon
10 As for Appellants’ argument about interstate congressional dynamics, App. Br. 30-31, it has already been rejected in other redistricting contexts. One person, one vote plaintiffs cannot complain about interstate malapportionment, nor can Section 2 plaintiffs allege racial vote dilution on a national scale.

33 reasoned distinctions,” id. at 278. The district court’s test is both.
As noted above, a court must find discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification in order to invalidate a plan under the test. JSA109a-110a. Discriminatory intent may be proven by evidence, direct or circumstantial, about the motives of those who designed a map and passed it into law. JSA126a-140a. Next, the magnitude of a plan’s discriminatory effect may be established through election results as well as measures of partisan asymmetry like partisan bias and the efficiency gap. JSA176a. The persistence of a plan’s skew, in turn, may be shown through the sensitivity testing that both sides’ experts endorsed. JSA149a n.255. Lastly, whether a plan’s tilt is justified may be addressed through alternative district maps, including ones used in earlier periods, ones crafted by the drafters themselves, ones offered by the plaintiffs, and ones generated through computer simulations. JSA203a218a.
A. The District Court’s Test Is Judicially Discernible.
The district court’s test is discernible for three reasons. It (1) captures the constitutional harms inflicted by partisan gerrymandering; (2) is based on the “comprehensive and neutral principle” of partisan symmetry; and (3) incorporates elements that are rooted in the Court’s gerrymandering case law.

34

1. The Test Captures

Harms

Inflicted

Gerrymandering.

the Constitutional

by

Partisan

Partisan gerrymandering inflicts (at least) two kinds of constitutional injuries. One of these, cognizable under the Equal Protection Clause, is the deliberate dilution of a group of voters’ electoral influence, yielding a legislature that is not responsive to their concerns. The other, arising under the First Amendment, is viewpoint discrimination against certain voters, penalizing them because of the political beliefs they espouse. The district court’s test captures both of these harms.

The Court has historically conceived of partisan gerrymandering as causing the equal protection injury of intentional vote dilution. In Bandemer, the plurality stated that “unconstitutional discrimination occurs” when a district plan “degrade[s] . . . a group of voters’ influence on the political process.” 478 U.S. at 132 (plurality opinion). In Vieth, Justice Kennedy confirmed that one constitutional problem with gerrymandering is “the particular burden a given partisan classification imposes on representational rights.” 541 U.S. at 308 (Kennedy, J., concurring in the judgment); see also LULAC, 548 U.S. at 418 (opinion of Kennedy, J.) (requiring “a burden . . . on the complainants’ representational rights”). Other Justices have also observed that gerrymandering dilutes the votes of targeted voters, thus making it more difficult for them to elect their preferred candidates. See, e.g., Vieth, 541 U.S. at 298 (plurality opinion) (characterizing gerrymandering as “intentional vote dilution”); id. at 354

35 (Souter, J., dissenting) (“gerrymandering is . . . a species of vote dilution”).
As the Court has recognized, the reason vote dilution is so invidious is that it results in representation that is not responsive to voters’ needs and interests. “Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” Reynolds, 377 U.S. at 565; see also, e.g., McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring in the judgment in part and dissenting in part) (“Democracy is premised on responsiveness.”). But when a gerrymander dilutes the votes of certain voters, their voices are not heard in the legislature, and the legislature does not accommodate their views. Elected officials become “unresponsive and insensitive to [these voters’] needs,” Rogers v. Lodge, 458 U.S. 613, 625 (1982), thus “freez[ing] the political status quo,” Jenness v. Fortson, 403 U.S. 431, 438 (1971).
The district court’s test reflects these precepts. Partisan asymmetry—the concept at the core of the test’s effect prong—is a measure of vote dilution. It indicates whether certain voters are less able to convert their ballots into representation, and thus whether they suffer a “burden on [their] representational rights.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). When all three of the test’s prongs are satisfied, not only is there vote dilution, but it is deliberate, extreme, persistent, and unjustified. These are exactly the circumstances where the Court has indicated there should be liability.

36

Beyond diluting votes, partisan gerrymandering

offends First Amendment values by “penalizing citizens

because of . . . their association with a political party, or

their expression of political views.” Id. at 314. That the

government may not “punish or suppress speech based

on disapproval of the ideas or perspectives the speech

conveys” is “a fundamental principle of the First

Amendment.” Matal v. Tam, 137 S. Ct. 1744, 1765 (2017)

(Kennedy, J., concurring in part and concurring in the

judgment). This rule applies even if the governmental

retaliation does not directly burden speech; such action

nevertheless “inhibits protected speech and

association.” Elrod v. Burns, 427 U.S. 347, 359 (1976)

(plurality opinion) (emphasis added). And the reason for

the rule is that when the government injures voters on

political grounds, it engages in viewpoint

discrimination—an “egregious form of content

discrimination”

that

is

“‘presumptively

unconstitutional.’” Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 829-30 (1995) (citation

omitted).

Again, the district court’s test dovetails with this well-established doctrine. Indeed, a law that fails the test is a classic case of forbidden governmental retaliation. Such a law seeks to harm one party’s voters because of their political views. In fact, the law’s authors typically scrutinize those views (in the form of election results) while crafting their map, hoping to prevent the targeted party’s voters from effectively translating their ballots into seats. Such a law also achieves its intended goal. The targeted party’s voters are, in fact, impaired in their ability to influence the political process, solely because of the political philosophy they espouse.

37 2. The Test Is Based on the “Comprehensive
and Neutral Principle” of Partisan Symmetry.
The district court’s test is also discernible because it is based in part on the concept of partisan symmetry. Partisan symmetry attracted the attention of five Justices in LULAC; it is a “comprehensive and neutral principle” for designing and evaluating plans; and it is entirely distinct from proportional representation.
The social scientific tenet that maps should treat parties symmetrically—by enabling them to translate their popular support into legislative representation with approximately equal ease—was first presented to the Court in LULAC. A majority of the Justices expressed interest in the idea. See 548 U.S. at 420 (opinion of Kennedy, J.) (not “discounting its utility in redistricting planning and litigation”); id. at 468 n.9 (Stevens, J., concurring in part and dissenting in part) (labeling it a “helpful (though certainly not talismanic) tool”); id. at 483-84 (Souter, J., concurring in part and dissenting in part) (noting “the utility of a criterion of symmetry as a test”); id. at 492 (Breyer, J., concurring in part and dissenting in part). This array of favorable comments led the district court to observe that “the justices have pointed to partisan symmetry as a theory with promise,” JA100, and to incorporate measures of asymmetry into its test’s effect prong, JSA159a-177a.
Appellants incorrectly contend that LULAC rejected partisan symmetry. App. Br. 43-44. While Justice Kennedy “conclude[d] asymmetry alone is not a reliable measure of unconstitutional partisanship,” id. at 420 (opinion of Kennedy, J.) (emphasis added), he plainly

38 did not rule out tests that rely on it in part. That is why Justice Stevens “appreciate[d] Justice Kennedy’s leaving the door open to the use of the standard in future cases.” 548 U.S. at 468 n.9 (Stevens, J., concurring in part and dissenting in part). That is also why Justice Souter remarked that “[i]nterest in exploring this notion is evident.” Id. at 483 (Souter, J., concurring in part and dissenting in part).
Beyond its doctrinal support, partisan symmetry is a “comprehensive and neutral principle[] for drawing electoral boundaries”—a “substantive definition of fairness in districting [that] command[s] general assent.” Vieth, 541 U.S. at 306-07 (Kennedy, J., concurring in the judgment). Partisan symmetry is “comprehensive” because it can be calculated for any district plan. Indeed, Appellees’ expert did compute it for almost every state house map from 1972 onward. SA212-216. Partisan symmetry is also “neutral” in that its very definition is the symmetric treatment of voters no matter which party they support. A symmetric plan is inherently a neutral one that gives each party’s backers the same opportunity to convert their ballots into representation.
Partisan symmetry further enjoys “general assent” in that it corresponds to the Court’s definitions of partisan gerrymandering. In Vieth, for instance, the plurality conceived of the practice as “giv[ing] one political party an unfair advantage by diluting the opposition’s voting strength.” 541 U.S. at 271 n.1 (plurality opinion). This is another way of saying that a gerrymander asymmetrically impairs the opposition’s ability to translate its voting strength into legislative

39 seats. In Arizona State Legislature, similarly, the Court described partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” 135 S. Ct. at 2658. Gerrymandering, in other words, is the durably asymmetric treatment of the parties’ respective devotees. See also Bandemer, 478 U.S. at 132 (plurality opinion) (a gerrymander asymmetrically “degrade[s] . . . a group of voters’ influence on the political process”).
Contrary to Appellants’ arguments, partisan symmetry has nothing in common with proportional representation—a goal the Court has repeatedly (and rightly) rejected as a constitutional requirement. See, e.g., LULAC, 548 U.S. at 419 (opinion of Kennedy, J.); Vieth, 541 U.S. at 288 (plurality opinion). Proportional representation is not a catch-all label for every analysis that relies in some way on statewide seat and vote shares. If it were, the Court would not have cited these statewide statistics over and over in its partisan gerrymandering cases. See, e.g., LULAC, 548 U.S. at 411-13 (opinion of Kennedy, J.); Vieth, 541 U.S. at 289 (plurality opinion); Bandemer, 478 U.S. at 134 (plurality opinion). Rather, proportional representation has a specific, universally accepted definition: a share of legislative seats that is equal to a party’s share of the jurisdiction-wide vote. As the Court has explained, proportional representation means that a party “win[s] the number of seats that mirrors the proportion of its vote.” Vieth, 541 U.S. at 291 (plurality opinion) (emphasis added).
Properly defined, proportional representation is unrelated to any measure of partisan asymmetry.

40 Consider partisan bias: If a party receives 55% of the vote and 60% of the seats, a plan’s bias is zero if the other party would also win 60% of the seats if it garnered 55% of the vote. See Grofman & King, supra, at 8-9. Likewise, as the district court found, “the [efficiency gap] does not impermissibly require that each party receive a share of the seats in proportion to its vote share.” JSA168a-169a. This is because “the efficiency gap is about comparing the wasted votes of each party, not determining whether the party’s percentage of the statewide vote share is reflected in the number of representatives that party elects.” JA99.
The district court used a simple example to prove the point. Take a ten-district map where “‘Party A wins two districts by a margin of 80 to 20 and four districts by a margin of 70 to 30,’” and “‘Party B wins four districts by a margin of 60 to 40.’” JA99 n.1 (citation omitted). “‘Then there is perfectly proportional representation’” because Party A receives 60% of the vote (600/1000) and 60% of the seats (6/10). Id. “‘But the efficiency gap here is not zero’” because votes for Party A are wasted at a rate ten percentage points higher than votes for Party B (30% versus 20%). Id. (emphasis added).
Unable to challenge the district court’s findings as clearly erroneous,11 Appellants instead assert that the efficiency gap requires “hyperproportionality.” App. Br. 49-50. It is true that when a map has a low efficiency gap, a party’s seat share tends to change at roughly double the rate of its vote share. JSA162a. But this is a feature
11 Indeed, Appellants conceded below that “the efficiency gap does not call for one-for-one proportional representation.” Dkt. 46:47; JA130.

41 of the efficiency gap, not a bug. Members of the Court have often acknowledged that single-member-district systems produce a “‘seat bonus’ in which a party that wins a majority of the vote generally wins an even larger majority of the seats.” LULAC, 548 U.S. at 464 (Stevens, J., concurring in part and dissenting in part); see also Vieth, 541 U.S. at 357 (Breyer, J., dissenting); Bandemer, 478 U.S. at 159 (O’Connor, J., concurring in the judgment). The seat bonus implied by the efficiency gap—approximately a twofold rise in seat share for an increase in vote share—is exactly the seat bonus that American elections have exhibited for generations. JSA162a, 170a. The efficiency gap is thus deeply grounded in historical practice, and captures a plan’s deviation from the historical norm. When used as part of the analysis, it can provide “helpful historical guidance” to courts and mapmakers alike. Vieth, 541 U.S. at 309 (Kennedy, J., concurring in the judgment).12
3. The Test Is Rooted in the Court’s Partisan Gerrymandering Case Law.
The district court’s test is discernible as well because all of its elements are rooted in the Court’s partisan
12 As for the “technical defects” alleged by Appellants, App. Br. 5152, they were already presented to, and rejected by, the district court in findings that are not clearly erroneous. For instance, the court pointed out that if a plan sought to enhance electoral competitiveness, then “[i]t would be difficult to establish that drafters . . . had the requisite partisan intent to show a constitutional violation.” JSA175a. Similarly, the court relied on extensive expert analysis—including sensitivity testing and a comparison of plans’ initial and lifetime average efficiency gaps—to conclude that a large efficiency gap is a durable plan characteristic. JSA163a-164a.

42 gerrymandering case law. Its intent prong, first, reflects the basic First and Fourteenth Amendment principle that “plaintiffs [are] required to prove . . . intentional discrimination against an identifiable political group.” Bandemer, 478 U.S. at 127 (plurality opinion). Thus, under the prong, “political classifications” that assign voters to districts on electoral grounds are not inherently problematic, but become so when “applied in an invidious manner.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment).
Second, the district court’s requirement of a large discriminatory effect is consistent with the Court’s guidance that “more than a de minimis effect” is necessary before liability may be imposed. Bandemer, 478 U.S. at 134 (plurality opinion). By not disrupting plans with small partisan asymmetries, the “analysis allows a pragmatic or functional assessment that accords some latitude to the States.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the judgment).
Third, by further restricting liability to plans with durable discriminatory effects, the district court heeded Justices’ comments about the special harms of partisan entrenchment. Maps that “entrench[] a party on the verge of minority status” subvert the will of the electorate for an entire redistricting cycle. LULAC, 548 U.S. at 419 (opinion of Kennedy, J.). They ensure that partisan asymmetries “will remain constant notwithstanding significant . . . shifts in public opinion.” Id. at 472 (Stevens, J., concurring in part and dissenting in part).
Appellants claim that Vieth barred any consideration of the durability of a party’s advantage, App. Br. 54-56,

43 but it did no such thing. Rather, it rejected the Bandemer plurality’s standard, under which “plaintiffs [had] to show even that their efforts to deliberate, register, and vote had been impeded.” Vieth, 541 U.S. at 345 (Souter, J., dissenting). This sort of participatory exclusion is plainly unrelated to the persistence of a plan’s partisan skew. Vieth also declined to adopt Justice Breyer’s proposed test focusing on “minority entrenchment.” Id. at 360 (Breyer, J., dissenting) (emphasis added). But again, minority control of the legislature is distinct from a durable tilt in favor of the gerrymandering party (be it a majority or a minority).13
Lastly, the district court’s justification prong echoes Justices’ remarks that maps should not be struck down if their partisan imbalances can be explained by neutral factors. “[P]olitical classifications” based on electoral data are constitutionally troublesome only if applied “in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). When a jurisdiction can justify its plan’s discriminatory effect “by reference to objectives other than naked partisan advantage,” judicial intervention is unwarranted. Id. at 351 (Souter, J., dissenting).
13 The district court’s finding of a durable pro-Republican advantage also distinguishes this case from Bandemer, where “had the Democratic candidates received an additional few percentage points of the votes cast statewide, they would have obtained a majority of the seats.” 478 U.S. at 135 (plurality opinion).

44 B. The District Court’s Test Is Judicially
Manageable.
Manageability is the other side of the justiciability coin. The district court’s test is manageable because (1) its intent and justification prongs have already been used successfully; (2) its effect prong is easy to administer due to its reliance on established metrics and methods; (3) the test reflects political realities; (4) the test’s implications are neutral and limited; and (5) compliance with the test is straightforward.
1. The Test’s Intent and Justification Prongs Have Already Been Used Successfully.
Appellants do not dispute that the district court’s intent prong is judicially workable. App. Br. 20. And for good reason. Over a series of partisan gerrymandering and malapportionment cases, the Court has shown that it is quite capable of distinguishing between plans “intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation,” JSA109a-110a, and maps drawn without this aim. The Bandemer plurality, for example, was “confident that . . . th[e] record would support a finding that the discrimination was intentional” where voluminous material “evidenced an intentional effort . . . to disadvantage Democratic voters.” 478 U.S. at 116, 127 (plurality opinion). In LULAC, similarly, Justice Kennedy had little trouble concluding that “[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority.” 548 U.S. at 417 (opinion of Kennedy, J.).

45 Conversely, in Gaffney v. Cummings, 412 U.S. 735 (1973), the Court properly rejected a claim that state legislative maps were “invidiously discriminatory” where the maps were designed by “a three-man bipartisan Board” that “followed a policy of ‘political fairness.’” Id. at 736, 738, 752. Likewise, in Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016), the Court unanimously rebuffed the argument that “illegitimate considerations were the predominant motivation” behind an Arizona state legislative plan crafted by an “independent redistricting commission” that made “‘good-faith efforts to comply with the Voting Rights Act.’” Id. at 1305, 1309 (citation omitted).
Appellants also wisely refrain from challenging the manageability of the district court’s justification prong. This prong is drawn verbatim from the Court’s one person, one vote cases—where for more than five decades it has enabled the Court to separate plans where large population deviations are justified by legitimate factors from maps where malapportionment cannot be properly explained. Compare, e.g., Brown v. Thomson, 462 U.S. 835, 844 (1983) (upholding a plan where “population deviations [were] no greater than necessary to preserve counties as representative districts”), and Mahan v. Howell, 410 U.S. 315, 323 (1973) (same), with Chapman v. Meier, 420 U.S. 1, 25 (1975) (invalidating a map where the state’s interests did not “prevent[] attaining a significantly lower population variance”), and Kilgarlin v. Hill, 386 U.S. 120, 124 (1967) (same).

46 2. The Test’s Effect Prong Is Easy to
Administer.
The district court’s effect prong is manageable too, because it relies on widely accepted metrics and methods, the results of which are rarely contested. Again, to satisfy this prong, a plaintiff must show that a plan has exhibited a partisan asymmetry that is both large and durable. As in this case, to establish the size of a map’s asymmetry, a plaintiff would likely provide evidence about the map’s partisan bias and efficiency gap. The plaintiff’s case would be bolstered if these measures both revealed a sizable asymmetry by historical standards. On the other hand, a court would rightly be skeptical if the metrics conflicted. Also as in this case, to demonstrate the persistence of a plan’s asymmetry, a plaintiff would likely subject the plan to sensitivity testing. To avoid dismissal, the testing would have to indicate that the map’s asymmetry would endure over a range of plausible electoral conditions.
Importantly, there is not an “unbounded variety of [asymmetry] metrics.” App. Br. 46. Rather, all of these measures resemble either partisan bias (because they focus on a counterfactual election) or the efficiency gap (because they are based on actual votes and seats won).14 That is why Appellees have highlighted these metrics throughout this litigation. Also importantly, there is virtually no disagreement over plans’ asymmetry scores. In this case, Appellees’ expert computed every wellknown measure for almost every state house map from
14 The mean-median difference, for instance, is a mathematical function of partisan bias. See supra note 5.

47 1972 onward. SA212-216, 346. Not one of these scores was disputed. In fact, Appellants’ experts confirmed the calculations. Dkt. 150:94, 161-62, 210; see also Grofman & King, supra, at 16 (noting the “congruence among experts [calculating partisan bias] for opposing sides”).
This “consensus among the experts” extends to the study of durability. JSA149a n.255. Four separate experts—two for each side—conducted some kind of sensitivity testing in this litigation, adjusting election results and determining how each party would do given each modification. Id. All of these experts agreed that sensitivity testing is “the accepted method of testing how a particular map would fare under different electoral conditions.” Id. The experts also concurred that Act 43’s pro-Republican asymmetry is highly persistent. JSA135a, 152a, 165a.
Appellants mock the idea of incorporating social science into a test for gerrymandering, App. Br. 45-48, but the Court historically has not shared their aversion to empirical evidence. To the contrary, Justice Kennedy expressed optimism in Vieth that “new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.” 541 U.S. at 312-13 (Kennedy, J., concurring in the judgment). The tools Appellees have deployed in this litigation fulfill Justice Kennedy’s hope. Asymmetry metrics like partisan bias and the efficiency gap capture the representational burdens of gerrymanders relative to a benchmark of neutral treatment. Computer simulations of large numbers of alternative maps reveal how the challenged plan performs compared to other

48 lawful options. And sensitivity testing indicates how a map’s skew would change if the electoral environment shifted in either party’s favor.
Appellants also complain about the use of multiple metrics, App. Br. 45-48,15 but it has never been the Court’s approach to search for a single holy grail. Rather, in every other redistricting domain, the Court has employed a range of useful techniques. In the reapportionment context, for instance, the Court has variously cited plans’ total population deviation, see, e.g., White v. Regester, 412 U.S. 755, 761 (1973), average population deviation, see, e.g., Mahan, 410 U.S. at 319, and proportion of the population that could elect a legislative majority, see, e.g., Swann v. Adams, 385 U.S. 440, 442-43 (1967). Under Section 2, similarly, the Court has endorsed two procedures for calculating racial polarization—“extreme case analysis” and “bivariate ecological regression”—referring to them as “complementary methods of analysis” that are “standard in the literature.” Gingles, 478 U.S. at 52, 53 n.20. And in its racial gerrymandering cases, the Court has measured district noncompactness using both
15 Appellants fixate on an amicus brief in LULAC that introduced partisan bias to the Court. App. Br. 47-48. That is all the brief did; it did not mention any other asymmetry metric or say a word about discriminatory intent, durability, or justification. Appellants also wrongly claim that Appellees did not advocate the use of multiple metrics below. To the contrary, as Appellees explained in their trial brief, “[f]rom the beginning of this case, [Appellees] have argued that the Court may use . . . other measures instead of, or in addition to, the efficiency gap to assess plans’ partisan consequences.” Dkt. 134:26; see also, e.g., JA61; Dkt. 31:11; Dkt. 68:76; Dkt. 149:159-167, 190-197, 230-231.

49 geographic dispersion and perimeter irregularity. See Bush v. Vera, 517 U.S. 952, 973 (1996) (plurality opinion).
The Court’s openness to multiple metrics makes perfect sense. They do not “sow chaos,” App. Br. 46, but rather build judicial confidence in the facts the metrics seek to establish. Here, for example, it is highly probative information that Act 43 not only exhibits an enormous efficiency gap but also scores very poorly in terms of partisan bias—and, indeed, every other measure of partisan asymmetry. Without this information, one could not be as sure that Act 43 is an extreme outlier. This basic point, that more data improves judicial decision-making, has never been lost on the Court.
3. The Test Reflects Political Realities.
Asymmetry metrics are also valid because they correspond to the realities of modern American politics. In particular, by focusing on the votes cast for, and seats won by, each party’s candidates, the measures reflect the facts that (1) party affiliation is the dominant driver of voter behavior; (2) voter behavior is largely consistent from year to year; and (3) legislators are highly polarized along party lines. Evidence establishing these points at the national level was discussed above. See supra Statement Part V. The record leaves no doubt that they hold for Wisconsin as well.
The analyses of Professor Gaddie and Act 43’s own drafters demonstrate that party affiliation dwarfs all other influences on voting in Wisconsin. Professor Gaddie’s estimates of wards’ partisanship were based on Assembly election results, SA322, while the drafters’ composite scores were not, JSA126a. The measures

50 nevertheless exhibited a 96% correlation, indicating that Wisconsin voters behave almost identically in Assembly and non-Assembly races. Ex. 175. This finding was confirmed by Appellees’ expert, who determined that a model including the presidential vote explains about 99% of the variance in the Assembly vote. SA47.
Professor Gaddie also showed that Wisconsin voting patterns have been remarkably stable over time. He created a “giant correlation table” displaying how the results of every race from 2002 to 2010 were related to the results of every other race over this period. Dkt. 108:106. These links were uniformly strong. Id. Thus, as Professor Gaddie wrote in a memo to Act 43’s drafters, “the top-to-bottom party basis of the state politics” persisted over this period, with “the partisanship of Wisconsin . . . invading [even] the ostensibly nonpartisan races on the ballot.” SA322.
The district court further found that because of Wisconsin’s strong caucus system, Assembly members are extremely polarized. There is “very little effort to woo colleagues from ‘across the aisle,’” JSA139a n.227, and “Republican legislators who win by slimmer margins” are not “more receptive to the needs of their Democratic constituents,” JSA155a n.266. The court’s conclusion is backed by the academic literature, which reveals that Wisconsin’s Legislature is even more ideologically polarized than the U.S. Congress. See Shor & McCarty, supra, at 540.
It is true, of course, that there are some swing voters and moderate legislators. But measures of partisan asymmetry cannot be tarred as “reductionist,” App. Br. 50, when they capture the key elements of contemporary

51 voting and representation. Moreover, to the extent that voters do split their tickets or change their views over time, sensitivity testing registers the impact of this behavior. Again, under the district court’s test, a plan would be in jeopardy only if this analysis confirmed that its skew would endure even if many voters switched their allegiance from one party to the other.
4. The Test’s Implications Are Neutral and Limited.
The district court’s test is also manageable because it plays no favorites. It neither threatens nor shields one party’s plans more than the other’s. As a legal matter, this neutrality stems from the interplay of the test’s three prongs. Assume (as Appellants allege without evidence, App. Br. 50-51) that the political geography of certain states benefits Republicans because their voters are distributed more efficiently. This fact does not render pro-Republican plans in these states more legally vulnerable, so long as their skew is actually the result of political geography rather than the deliberate and disparate cracking and packing of voters. In such a case, defendants could avoid liability by invoking either the test’s first prong (lack of discriminatory intent) or its third one (legitimate justification).
Historically as well, the measures of partisan asymmetry that underpin the district court’s test have not been slanted in either party’s direction. Appellees’ expert found that in state house elections from 1972 onward, partisan bias and the efficiency gap have both exhibited means and medians very close to zero. SA215; Dkt. 149:199. This means that over the modern redistricting era, neither party has enjoyed a consistent

52 edge over its opponent. And while the average efficiency gap nationwide has trended in a Republican direction in recent years, this shift is entirely attributable to more plans being enacted by state governments under unified Republican control. SA273-74; Dkt. 149:206. If Democrats had designed more maps, the average efficiency gap would have moved in the opposite direction. Id.16
Unsurprisingly, given these facts, Appellants are wrong that the district court’s test is “biased against Republicans” and would invalidate “one of every three plans.” App. Br. 50, 52. As the district court noted, the test’s implications can be estimated by tallying the number of prior maps that were (1) designed by a party in full control of the redistricting process, and (2) highly asymmetric. JA134. This approach does not consider the durability of, or justification for, any asymmetry. It also treats unified government as a proxy for discriminatory intent even though not all parties in charge of redistricting seek to handicap their rivals. Id. The resulting figures therefore represent the far upper limit of the test’s potential reach.
With these caveats in mind, Appellees’ expert analyzed over two hundred state house plans spanning the period from 1972 to 2014. JA195-196. Of these plans, only one-fifth were enacted by a party in full control of redistricting and then exhibited an initial efficiency gap
16 Precisely because partisan gerrymandering can be carried out by Democrats as easily as by Republicans, the Republican National Committee urged the Court to curb the practice in Bandemer. See Br. of Republican National Committee as Amicus Curiae, Davis v. Bandemer, 478 U.S. 109 (1986), 1985 WL 670030.

53 above 7%. (Appellees’ expert found that efficiency gaps above 7% are historically anomalous and particularly durable. SA236-249, 259-271, 315-20.) And less than onetenth of the plans were enacted by a party in full control of redistricting and then exhibited an initial efficiency gap above 10%. (Justice Stevens floated 10% as a possible asymmetry threshold in LULAC. See 548 U.S. at 468 n.9 (Stevens, J., concurring in part and dissenting in part).) Furthermore, of the plans flagged using a 7% threshold, three-fifths were enacted by—and subsequently favored—Democrats. Similarly, more than half of the plans flagged using a 10% cutoff were proDemocratic in intent and effect.17
These statistics refute Appellants’ claims about the test’s consequences. Far from being biased against proRepublican maps, historically it would have called into question more pro-Democratic ones. And far from striking down one-third of prior plans, it actually would have allowed plaintiffs to challenge, at most, one-tenth to one-fifth of them. These are the hallmarks of a “limited and precise” standard—one that does not “commit federal and state courts to unprecedented intervention,” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment), or “throw into doubt the vast majority of the Nation’s . . . districts,” Miller, 515 U.S. at 928 (O’Connor, J., concurring). Indeed, compared
17 Appellees do not ask the Court to set an asymmetry threshold. As the district court observed, because Act 43’s asymmetry “is one of the largest in recent history, determining a threshold may . . . wait for another day.” JA137. The Court’s reapportionment decisions, which took more than a decade to arrive at the presumptive 10% population deviation cutoff for state legislative plans, further support this approach.

54 to other redistricting theories, the impact of the district court’s test would be quite minor. See Gary W. Cox & Jonathan N. Katz, Elbridge Gerry’s Salamander 4 (2002) (noting that almost every map in the country was redrawn during the reapportionment revolution of the 1960s); Ellen D. Katz et al., Documenting Discrimination in Voting, 39 U. Mich. J.L. Reform 643, 655 (2006) (counting more than 800 Section 2 suits since the Court’s decision in Gingles).
5. Compliance with the Test Is Straightforward.
Even if the district court’s test is judicially manageable, the Court might still worry that ex ante compliance with it would be difficult. But it would not be hard for states to avoid liability under the test, nor would doing so interfere with any of their other legal obligations.
First, a state could prevent a large and durable asymmetry by employing the same tools that all modern mapmakers already rely on: data sets of past election results, redistricting software, regression modeling, sensitivity testing, and so on. At present, these tools are often exploited to make plans severely and persistently asymmetric. But it would be just as easy to harness the tools for the opposite purpose: to curb rather than to enhance partisan unfairness. As the district court pointed out, “drafters can assess the durability of their partisan maps, even absent an actual electoral outcome, by employing [sensitivity testing].” JSA176a n.314.
A state could also eliminate any possibility of a finding of discriminatory intent by adopting a bipartisan or nonpartisan redistricting process. In the district

55 court’s words, “[i]f a nonpartisan or bipartisan plan displays a high [asymmetry], the remaining components of the analysis will prevent a finding of a constitutional violation.” JSA171a. More than a dozen states currently use commissions to design their state legislative districts. See National Conference of State Legislatures, Redistricting Law 2010, at 163-68 (2009). Plans enacted by divided state governments—and so approved by elected officials from both parties—are even more common. SA273. In neither of these scenarios would there be any serious prospect of liability.
What if a state determines, over the course of its redistricting process, that it can avoid a large and durable asymmetry only by compromising its other legitimate goals? The district court’s test would not compel the state to make this sacrifice—say, to draw bizarrely shaped districts, to divide more political subdivisions, or to disrupt districts protected by the Voting Rights Act. To the contrary, the state would be able to insulate itself from liability by pointing to these valid aims. They would be an ironclad justification for the plan’s skew. JSA177a-218a.
In fact, conflict between partisan symmetry and other redistricting objectives is infrequent. Due to the near-infinite number of possible district configurations, it is generally possible for plans both to be symmetric and to satisfy all other criteria. In Wisconsin, for example, Professor Chen showed that there are hundreds of Assembly maps that exhibit very small asymmetries and that perform at least as well as Act 43 in terms of compactness, political subdivision splits, and Voting Rights Act compliance. See Chen, supra, at 12;

56 see also, e.g., Jowei Chen & Jonathan Rodden, Cutting Through the Thicket, 14 Election L.J. 331 (2015) (reaching the same conclusion for congressional plans in Florida).
In any event, history shows that even if there were a short-term rise in partisan gerrymandering lawsuits, this uptick would fade over time as mapmakers learned to abide by the new legal limit. Reapportionment litigation, for instance, has never approached its 1960s peak in five subsequent cycles. Nor has racial gerrymandering litigation been nearly as prevalent since the 1990s. The same pattern would likely hold for partisan gerrymandering cases: They would be infrequent in the future because line-drawers would take the necessary steps to avoid liability. See Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 68-69 (2004).
III. Compliance with Traditional Districting Criteria Is Not a Safe Harbor.
After contending that partisan gerrymandering claims are non-justiciable, Appellants assert that even if they are justiciable, they must include as an element noncompliance with traditional districting criteria. App. Br. 59-67. It is hard to think of an argument that has been raised and rejected as often as this one. As far back as Gaffney, a unanimous Court was unimpressed by evidence that “irregularly shaped districts” “wiggle[d] and joggle[d] boundary lines.” 412 U.S. at 752 n.18. “[C]ompactness or attractiveness,” declared the Court, “has never been held to constitute an independent federal constitutional requirement.” Id.

57 The Court has adhered to this position in its partisan gerrymandering cases. In Bandemer, Justice Powell urged that the “most important” factor should be “the shapes of voting districts and adherence to established political subdivision boundaries.” 478 U.S. at 173 (Powell, J., concurring in part and dissenting in part). The plurality specifically “disagree[d] with [his] conception of a constitutional violation” because noncompliance with traditional criteria does “not show any actual disadvantage beyond that shown by the election results.” Id. at 138-40 (plurality opinion).
In Vieth, likewise, Justice Souter proposed a test requiring a plaintiff to show that a district “paid little or no heed to . . . traditional districting principles.” 541 U.S. at 348 (Souter, J., dissenting). An outright majority of the Court dismissed this test. The plurality stressed the unmanageability of the approach, asking “How much disregard of traditional districting principles?” and “What is a lower court to do when . . . the district adheres to some traditional criteria but not others?” Id. at 296 (plurality opinion). The plurality also observed that aesthetically pleasing districts nevertheless can be grossly gerrymandered: “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.” Id. at 298. Justice Kennedy further explained that traditional principles are not “sound as independent judicial standards for measuring a burden on representational rights.” Id. at 308 (Kennedy, J., concurring in the judgment). Their defect is that “[t]hey cannot promise political neutrality when used as the basis for relief,” but rather “unavoidably have significant political effect.” Id. at 30809.

58 The Court has also repeatedly rebuffed Appellants’ claim in the racial gerrymandering context. Over and over, the Court has made clear that noncompliance with traditional criteria is probative evidence of a predominant racial purpose, but not a prerequisite for liability. See Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017) (“[A] conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition . . . .”); Miller, 515 U.S. at 913 (“[B]izarreness is [not] a necessary element of the constitutional wrong or a threshold requirement of proof . . . .”); Shaw I, 509 U.S. at 647 (“[T]hese criteria . . . are [not] constitutionally required . . . .”).
There are good reasons for this unbroken line of precedent. On the one hand, traditional criteria may be disregarded for many reasons other than partisan gain: a predominant racial motivation, an effort to comply with the Voting Rights Act, the presence of irregular geographic boundaries, and so on. On the other hand, as the district court pointed out, “[h]ighly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional criteria.” JSA121a-122a. “A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” JSA122a. Appellants’ approach would thus produce an inordinate number of false positives (plans noncompliant with traditional criteria for nonpartisan reasons) and false negatives (compliant plans that still intentionally, severely, durably, and unjustifiably discriminate against a party’s voters).

59 None of this is to say that traditional criteria are irrelevant under the district court’s test. As in racial gerrymandering cases, a failure to abide by them may be persuasive evidence of discriminatory intent. See Bethune-Hill, 137 S. Ct. at 799; Miller, 515 U.S. at 913. And as in one person, one vote cases, respect for traditional principles may provide a legitimate justification for a plan’s discriminatory effect. See Brown, 462 U.S. at 844; Mahan, 410 U.S. at 323. Traditional factors did not play a large role in this litigation only because Appellees had direct proof of discriminatory intent (and so did not need to resort to circumstantial evidence) and because Appellants “made no effort to justify the plan[’s skew] using neutral criteria.” JA146. In a typical case under the district court’s test, traditional principles would likely receive much more attention.
In any event, contrary to Appellants’ claim, it is far from “undisputed” that Act 43 complies with traditional criteria. App. Br. 25, 62. As documented above, the plan (1) divided seven more counties than any other map in Wisconsin’s modern history; (2) had less compact districts, on average, than any other Wisconsin map for which data is available; (3) moved seven times more people than necessary to achieve population equality; (4) paired six more Assembly incumbents than a previous map paired for both legislative chambers; and (5) violated Section 2 of the Voting Rights Act through its treatment of Latino voters. See supra Statement Part I. This poor record is what arises when mapmakers use traditional principles as a fig leaf to conceal their pursuit of partisan gain.

60 IV. Appellants Are Not Entitled to a Remand.
Appellants’ final argument is that they were caught unaware by the district court’s consideration of partisan entrenchment, and so are entitled to a remand on this issue. App. Br. 25, 53. 56. This claim cannot be seriously entertained. Appellees stressed the durability of a party’s advantage throughout the litigation, and the district court made it abundantly clear, prior to trial, that it shared this concern.
Starting with their complaint, Appellees argued that an “extremely durable” gerrymander is constitutionally problematic because “it is unlikely that the disadvantaged party’s adherents will be able to protect themselves through the political process.” JA30. Appellees maintained this “emphasis on the durability of gerrymandering” in every subsequent filing. Dkt. 68:74; see also, e.g., Dkt. 31:11; Dkt. 134:51. At trial too, Appellees presented extensive evidence about the intent of Act 43’s drafters to entrench the Republican Party in power, as well as the persistent pro-Republican skew that in fact ensued. Dkt. 148:222-235; Dkt. 149:231246; Ex. 161:126-181.18
For its part, the district court could not have indicated more plainly its interest in entrenchment. The court stated in its summary judgment decision: “Focusing on durability makes some sense because it is an indication that ordinary political processes cannot fix the problem.” JA129. “[D]urability is an appropriate
18 Given Appellees’ focus on durability, Appellants’ claim that Appellees implicitly waived any reliance on entrenchment, App. Br. 53, cannot be taken seriously.

61 measure of discriminatory effect.” Id. “[T]he collective will of the people should not be subverted indefinitely.” JA132. And “plaintiffs [should] show that defendants had the intent to prevent the minority party from regaining control throughout the life of the districting plan.” JA141.
Appellants apparently overlooked these comments (as well as Appellees’ filings and evidence). But they have only themselves to blame for this oversight, and are not entitled to a remand because of it.

62 CONCLUSION
For the foregoing reasons, the Court should affirm the decision below.
Respectfully submitted,

Jessica Ring Amunson JENNER & BLOCK LLP 1099 New York Ave., NW, Ste. 900 Washington, DC 20001
Michele Odorizzi MAYER BROWN, LLP 71 S. Wacker Dr. Chicago, IL 60606
Douglas M. Poland RATHJE & WOODWARD, LLC 10 E. Doty St., Ste. 507 Madison, WI 53703

Paul M. Smith Counsel of Record
J. Gerald Hebert Danielle M. Lang CAMPAIGN LEGAL CENTER 1411 K St., NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org
Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th St., Ste. 510 Chicago, IL 60637

Peter G. Earle LAW OFFICE OF PETER G. EARLE 839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202

Ruth M. Greenwood Annabelle E. Harless CAMPAIGN LEGAL CENTER 73 W. Monroe St., Ste. 322 Chicago, IL 60603

 
 No. 16-1161
In the Supreme Court of the United States

BEV ERLY R. GILL, ET AL., APPELLANTS, v.
WILLIAM WHITFORD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
REPLY BRIEF FOR APPELLANTS

BRAD D. SCHIMEL Attorney General

MISHA TSEYTLIN Solicitor General Counsel of Record

KEVIN M. LEROY Deputy Solicitor General

RYAN J. WALSH Chief Deputy Solicitor General

State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

AMY C. MILLER Assistant Solicitor General
BRIAN P. KEENAN Assistant Attorney General

Attorneys for Appellants

TABLE OF CONTENTS
Page
REPLY BRIEF FOR APPELLANTS........................... 1
ARGUMENT.................................................................. 2
I. Plaintiffs’ Statewide Standing Theory Contravenes This Court’s Precedents.............. 2
II. Plaintiffs’ Reliance On The Ahistoric “Partisan Symmetry” Concept Underscores That Statewide Partisan-Gerrymandering Claims Are Nonjusticiable ................................ 8
III. Plaintiffs’ Test Is Overbroad, Difficult To Comply With, And Biased In Favor Of Democrat-Controlled Legislatures................. 13
IV. Act 43 Is Lawful Because It Complies With Traditional Redistricting Principles .............. 22
CONCLUSION ............................................................ 27

ii
TABLE OF AUTHORITIES
Cases Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015) .........................................3, 6
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ........................................... 14
Baker v. Carr, 369 U.S. 186 (1962) ................................................. 6
Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012).................. 24
Baumgart v. Wendelberger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471 (E.D. Wis. May 30, 2002) ...................................... 19
Benisek v. Lamone, No. JKB-13-3233, 2017 WL 3642928 (D. Md. Aug. 24, 2017) .......................................................... 8
Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017) .......................................24, 25
Broward Citizens for Fair Dists. v. Broward Cnty., No. 12-60317-CIV, 2012 WL 1110053 (S.D. Fla. Apr. 3, 2012) ............................................................. 7
Cooper v. Harris, 137 S. Ct. 1455 (2017) ............................................. 1

iii
Davis v. Bandemer, 478 U.S. 109 (1986) .......................................passim
Gaffney v. Cummings, 412 U.S. 735 (1973) .........................................24, 26
Hall v. Virginia, 276 F. Supp. 2d 528 (E.D. Va. 2003) ..................... 7
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ...........................................5, 12
Matal v. Tam, 137 S. Ct. 1744 (2017) ........................................... 12
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)...................................................... 5
Old Person v. Brown, 182 F. Supp. 2d 1002 (D. Mont. 2002)................... 7
Pope v. Cnty. of Albany, No. 11-cv-0736, 2014 WL 316703 (N.D.N.Y. Jan. 28, 2014) ........................................................... 7
Radogno v. Ill. State Bd. of Elections, No. 1:11-cv-04884, 2011 WL 5025251 (N.D. Ill. Oct. 21, 2011) ........................................................... 7
Reynolds v. Sims, 377 U.S. 533 (1964) ................................................. 9

iv
Shaw v. Hunt, 517 U.S. 899 (1996) ................................................. 6
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................................... 5
United States v. Hays, 515 U.S. 737 (1995) .............................................2, 6
United States v. Jacobsen, 466 U.S. 109 (1984) ................................................. 5
Vieth v. Jubelirer, 541 U.S. 267 (2004) .......................................passim
Wesberry v. Sanders, 376 U.S. 1 (1964)...................................................... 9
Other Authorities Edward B. Foley, Due Process, Fair Play, And
Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, 84 U. Chi. L. Rev. 655 (2017) ................................. 9
Edward B. Foley, The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. & Legal Theory Working Paper Series No. 401 (July 10, 2017).................................................................... 8
John Locke, Two Treatises of Government (Mark Goldie ed., 1993) .................................................... 10

v
The Federalist No. 10 (James Madison) (George Stade ed., 2006)...................................................... 27
The Federalist No. 54 (James Madison) (George Stade ed., 2006)...................................................... 10

REPLY BRIEF FOR APPELLANTS
Plaintiffs’ brief makes clear that they “would commit federal . . . courts to unprecedented intervention in the American political process.” Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring in the judgment). The scope and consequences of the new cause of action that Plaintiffs ask this Court to create are breathtaking. This new claim could be brought by any voter who favors one of this country’s two major parties and would permit statewide invalidation of redistricting maps. And this cause of action would be far more powerful than racial-gerrymandering claims, which are limited to district-specific standing and relief. Especially in States where “racial identification is highly correlated with political affiliation,” Cooper v. Harris, 137 S. Ct. 1455, 1473 (2017) (citation omitted), courts would face the perverse spectacle of plaintiffs who have been subjected to racially motivated districting being incentivized to argue that politics, not race, was at play, so that they could gain access to Plaintiffs’ novel statewide theory of standing and invalidation.
Plaintiffs’ test is the antithesis of “limited and precise.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). As Plaintiffs’ brief makes clear, two of the three prongs of their test—political intent and impossibility of creating a map with less partisan asymmetry—would be mere formalities in most cases. A legislature’s scrupulous compliance with traditional redistricting principles would be irrelevant. As

2
for the outcome-determinative effects prong, Plaintiffs are willing to say only that each court can choose from any number of metrics related to the ahistoric partisan-symmetry concept.
Although the inadequacies of Plaintiffs’ test require dismissal of their claims, Plaintiffs’ failure underscores a broader point: this Court should definitively hold that federal courts lack jurisdiction over statewide political-gerrymandering claims. Every statewide theory that has been proposed for three decades has boiled down to “some form of rough proportional representation for all political groups,” Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O’Connor, J., concurring in the judgment), and this Court has already held that plaintiffs lack standing to bring statewide claims even in the racial-gerrymandering context. A holding that federal courts similarly lack jurisdiction to adjudicate statewide partisanship claims would bring clarity and consistency to the law.
ARGUMENT
I. Plaintiffs’ Statewide Standing Theory Contravenes This Court’s Precedents
Plaintiffs lack standing to bring their statewide claims. That conclusion follows from this Court’s caselaw, which makes clear that gerrymandering harms occur only at the district-specific level, United States v. Hays, 515 U.S. 737, 745 (1995); Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265

3
(2015), and from the general understanding that voters do not vote for a “slate of legislative candidates,” but for individual legislators, Bandemer, 478 U.S. at 159 (O’Connor, J., concurring in the judgment); Appellants’ Br. 28–29.
Plaintiffs fail to answer many of the standing arguments that Defendants made in their opening brief. Plaintiffs do not dispute that they never argued below “that any of their districts were unlawfully gerrymandered,”1 and do not even attempt to explain how, for example, Act 43 harmed lead plaintiff Whitford, given that he would live in a Democrat-dominated district under virtually any map. Appellants’ Br. 31. While
1 The only part of Plaintiffs’ brief that even discusses specific districts is a two-page portion in their fact section, which deals with only a few districts and relies upon charts and objections never mentioned before the district court. Appellees’ Br. 7–8. For example, while Plaintiffs now claim that Act 43 “packed” Democrats into eight districts with more than 80% of the vote, yet contained no such Republican-packed districts, Appellees’ Br. 7, Plaintiffs neglect to mention that their own Demonstration Plan had nine districts greater than 80% Democrat and none for Republicans, Dkt. 149:125–27, 132–34; Defs. Ex. 561. Plaintiffs’ reliance on Professor Chen’s alternative “Assembly maps,” Appellees’ Br. 19, 55, is similarly inappropriate, as the district court specifically refused to give any weight to those alternative maps because Chen “was not deposed and did not testify at trial” and therefore the court was “unable to examine properly the reliability of [his] methodologies,” J.S. App. 197a n.350.

4
Plaintiffs vaguely assert that Act 43 “dilutes Democratic votes throughout Wisconsin,” Appellees’ Br. 29– 30, they have no answer for the point that Whitford does not vote “throughout Wisconsin,” but only in his own district. Plaintiffs also do not answer Defendants’ argument that their standing theory would necessarily permit interstate lawsuits in the House of Representatives context, Appellants’ Br. 30–31, brushing this point aside in a conclusory footnote, Appellees’ Br. 32 n.10.
And Plaintiffs do not contest Defendants’ explanation that Plaintiffs’ theory would privilege their new politics-based cause of action over traditional racial-gerrymandering claims by permitting statewide claims in the political context, where such broad claims are not available in the racial context. Appellants’ Br. 29–30. Plaintiffs tout this unthinkable consequence as a feature, asserting that systematically favoring allegations of political gerrymandering would somehow “improve” the law. Appellees’ Br. 30– 31. Notably, not one of Plaintiffs’ numerous amici even attempted to offer a response to this serious deficiency in Plaintiffs’ unprecedented statewide theory of standing.
The remaining standing arguments that Plaintiffs make do not support their position.
Plaintiffs cite to this Court’s political-gerrymandering caselaw, Appellees’ Br. 28, but those cases require dismissal on jurisdictional grounds. In Vieth,

5
five Justices concluded that federal courts lack jurisdiction to consider statewide partisan-gerrymandering claims. Justice Stevens found that plaintiffs lacked standing to bring statewide claims. Vieth, 541 U.S. at 327–28. Combining Justice Stevens’ conclusion with the four-Justice plurality’s holding that federal courts lack jurisdiction to consider any partisangerrymandering claims, id. at 281—as required by United States v. Jacobsen, 466 U.S. 109, 115–18 & n.12 (1984), and Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 17 (1983)— yields the controlling rule that federal courts lack jurisdiction over statewide claims. This is now the sixth brief that Defendants have filed in this Court that relies upon the principles in Jacobsen and Moses H. Cone, Appellants’ Br. 26–27; J.S. 20; Opp. to Mot. to Affirm 2; Stay Appl. 12; Reply in Support of Stay Appl. 3, and yet Plaintiffs have not even attempted to address those cases. As for Bandemer and League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399 (2006), those decisions did not discuss standing, let alone decide the issue, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998). And Plaintiffs do not dispute that counsel in LULAC specifically assured this Court at oral argument, in response to standing concerns, that the claim was district-specific. Appellants’ Br. 33.
Plaintiffs’ argument that they have standing because of the way they have pleaded their case, Appellees’ Br. 28–30, is circular ipse dixit. While Plaintiffs have insisted that their allegations are “statewide in

6
nature,” Appellees’ Br. 29, so did plaintiffs in this Court’s racial-gerrymandering cases. As Hays explained, “Appellees insist that they challenged Act 1 in its entirety, not District 4 in isolation. That is true. It is also irrelevant” because “[o]nly those citizens able to allege injury as a direct result of having personally been denied equal treatment may bring such a challenge.” 515 U.S. at 746 (citations and emphasis omitted). For the same reasons, Plaintiffs’ assertions cannot create the legal basis for a statewide claim, based upon statewide injuries. Or, as this Court put it in Alabama Legislative Black Caucus, allegations of statewide gerrymandering are “legal unicorn[s],” to be found “only in the legal imagination.” 135 S. Ct. at 1265.
Contrary to Plaintiffs’ claims, Appellees’ Br. 28– 30, this Court’s one-person, one-vote and minorityvote-dilution cases only further undermine their argument for an unprecedented statewide standing theory. Baker v. Carr, 369 U.S. 186 (1962), held that the plaintiffs had standing because they lived in overpopulated districts as compared to other districts in the State, and thus suffered the personal, district-specific harm of having less than one vote. Id. at 206–08. Plaintiffs here do not argue that they have less than one vote when compared to voters in other districts; rather, they rest upon a purely statewide theory. This Court’s minority-vote-dilution cases similarly do not recognize statewide claims based upon statewide injury. See Shaw v. Hunt, 517 U.S. 899, 916–17 (1996) (finding “singularly unpersuasive” the argument that

7
“draw[ing] a majority-minority district anywhere [in the State]” could remedy a vote-dilution injury suffered in another part of the State (emphasis added)). To the contrary, courts have held, after citing racialgerrymandering caselaw, that plaintiffs lack standing to bring vote-dilution claims for districts where they do not live. See Hall v. Virginia, 276 F. Supp. 2d 528, 531–32 (E.D. Va. 2003); Old Person v. Brown, 182 F. Supp. 2d 1002, 1006 (D. Mont. 2002); Broward Citizens for Fair Dists. v. Broward Cnty., No. 12-60317CIV, 2012 WL 1110053, at *3 (S.D. Fla. Apr. 3, 2012) ; Radogno v. Ill. State Bd. of Elections, No. 1:11-cv04884, 2011 WL 5025251, at *2 (N.D. Ill. Oct. 21, 2011).2
Finally, Plaintiffs’ argument that partisan-gerrymandering claims “cannot be justiciable yet incapable of being advanced statewide,” Appellees’ Br. 30, is demonstrably false. Justice Stevens explained that, because of this Court’s standing doctrine, he would entertain only district-specific claims, Vieth, 541 U.S. at 327–28; Justice Souter, joined by Justice Ginsburg, believed that all political-gerrymandering claims must be “built upon” district-specific claims, id. at
2 Pope v. County of Albany, No. 11-cv-0736, 2014 WL 316703 (N.D.N.Y. Jan. 28, 2014), the only vote-dilution standing case that Plaintiffs cite, Appellees’ Br. 29, merely held that plaintiffs had standing to ask for one more majority-minority district in the City of Albany because they were “challeng[ing] the drawing of the district lines . . . within the City . . . where they reside,” Pope, 2014 WL 316703, at *6 (emphasis added).

8
353; and scholars have advocated a single-districtonly cause of action, see, e.g., Edward B. Foley, The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. & Legal Theory Working Paper Series No. 401, at 13–15 (July 10, 2017). Judge Niemeyer’s dissenting opinion in Benisek v. Lamone, No. JKB-13-3233, 2017 WL 3642928 (D. Md. Aug. 24, 2017), which Plaintiffs quote on the very first page of their brief, Appellees’ Br. 1, arises from a single-district case, Maryland Pls. Amicus Br. 3.
II. Plaintiffs’ Reliance On The Ahistoric “Partisan Symmetry” Concept Underscores That Statewide Partisan-Gerrymandering Claims Are Nonjusticiable
Statewide partisan-gerrymandering claims are nonjusticiable because no litigant has identified “comprehensive and neutral principles for drawing electoral boundaries,” such as those derived from “the annals of parliamentary or legislative bodies.” Vieth, 541 U.S. at 306–08 (Kennedy, J., concurring in the judgment). The lack of such historically based principles is fatal to the justiciability of statewide claims because, without these principles, courts cannot even begin constructing a doctrine. No such “comprehensive and neutral principles” have been uncovered because all proposals for statewide tests in this area have boiled down to “some form of rough proportional representation for all political groups.” Bandemer,

9
478 U.S. at 145 (O’Connor, J., concurring in the judgment). These points, combined with the insuperable standing problems inherent in statewide gerrymandering claims, militate strongly in favor of definitively holding that such claims are nonjusticiable. Appellants’ Br. 34–40.
Plaintiffs do not dispute that partisan-gerrymandering claims are nonjusticiable unless litigants can identify historically based districting principles, but instead assert that they have uncovered such principles in so-called “partisan symmetry.” Appellees’ Br. 37–41. But there is simply “no basis in the historical record for saying that the Constitution embodies a standard of partisan symmetry,” Edward B. Foley, Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, 84 U. Chi. L. Rev. 655, 727 (2017), and Plaintiffs do not cite even one historical source endorsing (or even suggesting) partisan symmetry as a “comprehensive and neutral principle[ ] for drawing electoral boundaries,” Vieth, 541 U.S. at 306–07 (Kennedy, J., concurring in the judgment). This complete lack of historical support contrasts sharply with the overwhelming historical record in favor of the one-person, one-vote principle. See Reynolds v. Sims, 377 U.S. 533, 558 (1964) (“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” (citation omitted)); Wesberry v. Sanders, 376 U.S. 1, 13–14 (1964) (citing

10
debates from the Constitutional Convention as historical support); The Federalist No. 54, at 304 (James Madison) (George Stade ed., 2006) (“It is a fundamental principle of the proposed constitution, that [ ] the aggregate number of representatives allotted to the several States is to be . . . founded on the aggregate number of inhabitants.”); John Locke, Two Treatises of Government 195–96 (Mark Goldie ed., 1993) (“To what gross absurdities . . . we see the bare name of a town . . . where scarce . . . more inhabitants than a shepherd is to be found, sends as many representatives to the grand assembly of law-makers, as a whole county numerous in people, and powerful in riches.”). Even in more modern times, a 50-State survey found that not a single State uses partisan symmetry as a redistricting principle. Appellants’ Br. 38.
One important reason for the lack of historical support for partisan symmetry is that “symmetry” is just some social scientists’ label for metrics calculating how far a map deviates from another ahistoric concept: proportional representation. Plaintiffs are wrong when they assert that because symmetry metrics do not require strict 1:1 vote-to-seat proportionality, they are not based upon proportionalrepresentation principles. Appellees’ Br. 39–41. Symmetry metrics analyze plans based upon a party’s seats won compared to its statewide vote share, seeking to identify the number of seats a party “should” win after obtaining a certain statewide vote percentage. Partisan symmetry is thus no more removed from proportionality than was the standard this

11
Court rejected in Vieth: a majority of votes should win a majority of seats. Whether a symmetry metric uses a baseline of 1:1 proportionality, 2:1 hyper-proportionality, a majority-of-seats-with-majority-of-votes rule, or another ratio-based criterion, it is just “rough proportional[ity].” Bandemer, 478 U.S. at 145 (O’Connor, J., concurring in the judgment).
Plaintiffs’ reliance on “[c]omputer simulations” that permit social scientists to compare how a map “performs” against possible alternative maps in terms of deviation from the “benchmark of neutral treatment” of some partisan-symmetry metric, Appellees’ Br. 47–48, misunderstands the fundamental challenge in this area. It was easy at the time of Vieth (and, indeed, well before that) to use computing power to create a series of alternative maps and then to measure how the challenged map “performs” in terms of its deviation from the “benchmark of neutral treatment” of any proportionality-based metric, be it 1:1 proportionality or any other ratio-based criterion. See Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment) (“Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months.”). A fatal problem with any test built around such an approach remains that—unlike with the foundational one-person, one-vote principle—the Constitution does not embody a partisan-symmetry benchmark, deviation from which courts must minimize.

12
Plaintiffs are incorrect when they claim that a “majority” of this Court in LULAC “expressed interest” in building a doctrine around partisan symmetry. Appellees’ Br. 37. Justice Kennedy explained that symmetry alone cannot serve as the baseline for adjudicating “how much partisan dominance is too much,” specifically rejecting an approach proposed by an amicus brief that is extremely similar to Plaintiffs’ proposal, LULAC, 548 U.S. at 420, and Justices Scalia and Thomas agreed with that analysis, id. at 511. Justice Souter took no position as to “the administrability” of symmetry. Id. at 483–84. And Justice Breyer relied upon minority party entrenchment. Id. at 491–92. While Justice Stevens noted that a symmetry standard could be “manageable,” id. at 468 n.9, he did not disclaim his prior position that this Court’s Article III caselaw permits courts to consider only district-specific claims, supra p. 7.
Finally, Plaintiffs’ citation to First and Fourteenth Amendment caselaw, Appellees’ Br. 34–36, does nothing to relieve them of the responsibility of identifying historically based “comprehensive and neutral principles” from which to construct a judicially manageable doctrine. Vieth, 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment). While Plaintiffs correctly point out that the First Amendment prohibits the government from “punish[ing] or suppress[ing] speech” based on viewpoint, Matal v. Tam, 137 S. Ct. 1744, 1765–66 (2017) (Kennedy, J., concurring in part and concurring in the judgment),

13
that precept does nothing to salvage Plaintiffs’ lawsuit, see Republican State Leadership Committee Amicus Br. 23–26, including because it does not help courts identify neutral, historically based districting principles from which a political-gerrymandering doctrine can be constructed.3 As to the Fourteenth Amendment, Plaintiffs claim that partisan gerrymandering involves “deliberate dilution of a group of voters’ electoral influence.” Appellees’ Br. 34. Even if vote-dilution concepts could coherently apply to the two major parties’ political power—which they cannot, Bandemer, 478 U.S. at 147 (O’Connor, J., concurring in the judgment); Republican State Leadership Committee Amicus Br. 18–22—a vote-dilution-based partisanship cause of action would still be nonjusticiable without a neutral, historically grounded baseline.
III. Plaintiffs’ Test Is Overbroad, Difficult To Comply With, And Biased In Favor Of Democrat-Controlled Legislatures
Plaintiffs’ lawsuit must also be dismissed because they have not proposed a “limited and precise” legal test. See Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). Given the shifting tests that
3 The First Amendment argument raised by one of Plaintiffs’ amici—that partisan intent, standing alone, renders a plan presumptively unconstitutional, Common Cause Amicus Br. 23—is foreclosed by LULAC’s holding that even a showing of sole partisan intent is insufficient to invalidate a plan.

14
Plaintiffs and the district court have articulated, Defendants’ opening brief explained why each of three tests—social-science hodgepodge, efficiency gap, and entrenchment—failed the “limited and precise” criteria. Appellants’ Br. 45–59. In their brief on the merits, Plaintiffs articulate a test with three prongs, which asks three questions: (1) did the legislature have partisan intent?; (2) does the map score poorly on partisan-symmetry metric(s) and durability analyses?; and (3) was it impossible for the Legislature to draw a map that scored better, while still complying with other requirements? Appellees’ Br. 33. This test is wildly overbroad, difficult for any legislature to comply with, and severely biased in favor of Democrat-controlled legislatures.
The first and third prongs of Plaintiffs’ test would be mere formalities in most cases. Plaintiffs define their first prong as partisan intent, and do not dispute Defendants’ argument that this is the same intent test that the Bandemer plurality articulated. Appellants’ Br. 44–45. As the Bandemer plurality explained, however, “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” 478 U.S. at 129. All Plaintiffs’ first element would do is make legislatively drawn maps presumptively suspect, an illogical inversion of the Elections Clause argument that this Court rejected in Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015). Plaintiffs define their third element as

15
whether “alternative district maps” could have been drafted that have less partisan asymmetry on some metric, while still complying with traditional redistricting principles and other requirements. Appellees’ Br. 33. But as Plaintiffs concede elsewhere, this prong will be impossible for any legislature to prevail under because, “[d]ue to the near-infinite number of possible district configurations, it is generally possible for plans both to be symmetric and to satisfy all other criteria.” Appellees’ Br. 55. A legislature’s compliance with these principles would thus be irrelevant. See also infra pp. 23–24.
The real action under Plaintiffs’ test would take place under the partisan-effects prong: how the map scores on social-science metrics and durability analyses. As Defendants explained in their opening brief, Plaintiffs’ effects approach would be indeterminate and deeply disruptive, as every map would be challenged in court, with each side putting forward its own favored social-science metric(s), leading to an expensive, uncertain discovery period and trial. Appellants’ Br. 46–47. Plaintiffs’ preferred symmetry metric below was the efficiency gap, and their favored durability analysis was based upon Professor Jackman’s conclusion that any plan with a gap over 7% in its first election is unlikely to become asymmetrical in the other party’s favor. See JA60; Dkt. 149:209. Other plaintiffs could select other metrics and durability analyses. Appellants’ Br. 46–47. Plaintiffs offer no more specificity, resting on vague assurances that

16
a plan must have a “sizable asymmetry” and “persistence.” Appellees’ Br. 33, 46. Notably, the only metric that the parties subjected to adversarial scrutiny below—the efficiency gap—proved to be so problematic, Appellants’ Br. 48–53, that Plaintiffs no longer defend it as the controlling effects test, Appellees’ Br. 33.4
The number of plans that Plaintiffs’ test would threaten is staggering. Texas Amicus Br. 26. One third of plans drawn in the last 45 years fail Plaintiffs’ asymmetry/durability approach, having a greater than 7% efficiency gap in the first election. JA193– 94, 201. Plaintiffs point out that the number of plans invalidated could be somewhat lower only because some of the plans that Plaintiffs’ approach tags as too durably partisan were not drawn by a party in full control of the legislature. Appellees’ Br. 52–53. Plaintiffs are wrong to argue that this represents the
4 Plaintiffs also do not defend the district court’s entrenchment test, which was never fairly litigated below. Appellants’ Br. 53–59. Plaintiffs assert that they emphasized the “durability” of Act 43’s “pro-Republican skew,” while citing to Jackman’s durability analysis (which the district court did not rely upon). Appellees’ Br. 60. But what both Plaintiffs and Jackman were arguing was that an efficiency gap of 7% is “durable,” in that it would be unlikely that such a gap would “sign flip” to being asymmetrical in Democrats’ favor. JA60; Dkt. 149:209. Neither Plaintiffs nor Jackman ever sought to establish that Act 43, in the district court’s words, “secured for Republicans a lasting Assembly majority.” J.S. App. 145a–46a. That is the language of minority-party entrenchment, which Vieth forecloses.

17
“upper limit of the test’s potential reach.” Appellees’ Br. 52. If challengers would lose under Plaintiffs’ 7%gap-in-the-first-election test, they would simply advocate a different asymmetry/durability combination. Some challengers could, for example, argue that the first election was an outlier and should therefore be discounted. Notably, 53% of all plans in the last 45 years had a 7% or greater efficiency gap in at least one election. See JA201.5
The facts of this case well demonstrate the indeterminacy of Plaintiffs’ effects approach. Plaintiffs explain that trial courts can rely upon swing analyses to conduct a durability inquiry. See Appellees’ Br. 47. Plaintiffs also repeat their false assertion that, under Dr. Gaddie’s swing analysis, “Democrats . . . would need 54% of the statewide vote to capture a simple majority of Assembly seats—a feat achieved just once by either party over the last generation.” Appellees’
5 Adding further uncertainty, States will likely argue that some of Plaintiffs’ essential premises—such as the purported consistency of voter behavior or the claimed polarization of political parties, Appellees’ Br. 49—do not apply in their State. Appellants’ Br. 13, 17 (explaining that Wisconsin Democrats won 54% of the two-party statewide Assembly vote in 2008, and then only 48% of the statewide Assembly vote just six years later in 2014); New York Senate Majority Leader Amicus Br. 4 (“New York State Senate is governed by a multiparty, multi-member coalition”). How a future district court could adjudicate such disputes, including how it may choose to weigh those considerations against the ambiguities created by competing social-science metrics, would be anyone’s guess.

18
Br. 9 (citation omitted). In fact, Gaddie projected that Democrats would win an Assembly majority under Act 43 with just over 53% of the vote, and Democrats won 54% in 2006 and 2008. Appellants’ Br. 57–58. Dr. Gaddie further estimated that if Democrats won 54% of the vote, they would win 53 out of 99 Assembly seats under Act 43, almost perfect proportionality. SA339. In 2006, Democrats won more than 54% of the two-party vote, which netted them just 47 seats under the immediately prior court-drawn map; in 2008, they won 54% of the vote, this time obtaining 53 seats under that same map (the exact number of seats that Gaddie’s swing analysis projected them to win under Act 43). Appellants’ Br. 13; SA339. Plaintiffs offer no explanation why these facts and Gaddie’s swing analysis could not reasonably have led a different court to uphold Act 43 as lawful.
In light of the indeterminacy of Plaintiffs’ test, it would be exceedingly difficult for legislatures to protect against inevitable, costly, and uncertain lawsuits.6 Take, for example, the task facing the Wisconsin Legislature in 2011. The prior courtdrawn map had efficiency gaps of 7%, 10%, and 12% favoring Republicans in its first three elections. JA223–24. If the Legislature drew its map in “the
6 That is, unless the legislature accepted Plaintiffs’ not-sosubtle suggestion of delegating its sovereign responsibility of drawing district maps to a nonpartisan commission. Appellees’ Br. 54–55. Even then, plaintiffs would argue that the commission had been captured by partisans. Texas Amicus Br. 15.

19
most neutral way [a federal court] could conceive”— “adjusting” the prior map for “population deviations,” Baumgart v. Wendelberger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471, at *7 (E.D. Wis. May 30, 2002)— this new map would almost certainly have been unlawful under Plaintiffs’ test. Appellants’ Br. 38. Plaintiffs point out that the Legislature could have used symmetry metrics to draft a map more Democrat-friendly than the prior court-drawn map. Appellees’ Br. 54. This “nonpartisan statesmanship” mandate, J.S. App. 245a, is something that no State’s laws require and for which the Constitution offers no support. But even such unprecedented efforts would not necessarily protect the map from a costly lawsuit. It is undisputed that under a uniform swing analysis, Plaintiffs’ Demonstration Plan would have yielded Republicans 63 seats on 52% of the vote in 2014, a result identical to the one that obtained in 2014 under Act 43. Appellants’ Br. 65–66. Such an asymmetrical election result would surely have led to an immediate, uncertain lawsuit by Democrat partisans.
Finally, Plaintiffs’ test systematically favors Democrat-controlled legislatures, Appellants’ Br. 50– 51, a fact that is obvious from the uniform partisan breakdown of the States in this case, compare Texas Amicus Br. (16 Republican Attorneys General speaking for their States and supporting Defendants), with Oregon Amicus Br. (16 Democrat Attorneys General

20
and one Independent Attorney General speaking for their States and supporting Plaintiffs).7
A principal reason for the severe political bias of Plaintiffs’ test is that many Democrats today have chosen to cluster in cities. The district court, J.S. App. 203a, and amici from both sides, see Wisconsin State Senate and Assembly Amicus Br. 31–37; Professor Best Amicus Br. 12, agree than political geography favors Republicans, creating natural asymmetry. So when Republican-controlled legislatures move district lines for partisan ends, their symmetry scores will be far worse than those generated by Democratcontrolled legislatures engaging in the same activity for the same ends; Republicans’ plans will score as nefariously increasing natural asymmetries, whereas Democrats’ plans will score as benignly cancelling them out. SA131–41. That is presumably why Illinois could join Oregon’s brief without much concern. Although Plaintiffs’ amici criticize Illinois’ frequent pro-Democrat redistricting, Represent.Us Amicus Br. 8–10; Current and Former State Legislators Amicus Br. 1; McCain and Whitehouse Amicus Br. 10–11, the State’s political geography ensures that its legislature’s partisan maps will score well on symmetry metrics, SA253; SA137–38; see generally National Republican Congressional Committee Amicus Br. 10–
7 Notably, individual politicians nominally supporting Plaintiffs declined to grapple with the specifics of Plaintiffs’ test. See, e.g., Bipartisan Group of Current and Former Members of Congress Amicus Br. 34 n.58 (“no position” on Plaintiffs’ test).

21
14 (discussion and charts of Illinois Democrats’ districting).
That is also why Plaintiffs’ Demonstration Plan— an obviously partisan plan designed to reverse-engineer 13 pro-Democrat Assembly districts under 2012 conditions, Appellants’ Br. 65–66—still had an efficiency gap favoring Republicans in 2012. SA71–72, 308–09. Plaintiffs’ expert, for example, divided up the cities of Fond du Lac and Oshkosh in a manner far more problematic than any of the belated Act 43 examples that Plaintiffs can muster. Supra p. 3 n.1. The Demonstration Plan’s approach to this area is reproduced on the left; Act 43’s is reproduced on the right:

22
Dkt. 149:103–106; Defs. Ex. 520 (interactive map; also available at http://arcg.is/0TTPeS); SA361 (interactive map).
Plaintiffs are thus simply wrong when they assert that pro-Republican gaps are “entirely attributable to more plans being enacted by state governments under unified Republican control.” Appellees’ Br. 52. According to Jackman, Plaintiffs’ own expert, the shift in efficiency gaps towards Republicans started in the mid-1990s, when Republicans controlled only two of the 41 States in the dataset. Dkt. 149:251–53; SA225. And the average gap in Republicans’ favor was virtually unchanged from 2000 to 2014, a period during which Republicans took control over legislatures in many States. Dkt. 149:253–55; SA225. Jackman also found that since the 1990s, efficiency gaps favor Republicans and that, conversely, “few plans” today “generat[e] large, pro-Democratic” gaps. SA238. Surely, a legal test so obviously politically one-sided “cannot promise political neutrality.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment).
IV. Act 43 Is Lawful Because It Complies With Traditional Redistricting Principles
Act 43 complies with traditional redistricting principles, which means that the plan is not a partisan gerrymander according to both the historical understanding of that term and the views of the majority of Justices in Vieth who would recognize such claims. Appellants’ Br. 59–61. Definitively holding that a

23
plan that complies with these principles is not an unlawful political gerrymander would be a sensible approach. Appellants’ Br. 59–62. At the very minimum, Act 43 is lawful because it complies with these crucial principles and is similar on these principles, district shapes, and results to the immediately prior courtdrawn map. Appellants’ Br. 63–66.
In their response brief, Plaintiffs do not meaningfully dispute that Act 43 is consistent with the prior court-drawn map on traditional redistricting principles, district shapes, or results. And while Plaintiffs assert that Act 43 departs from some traditional principles, Appellees’ Br. 59, those arguments are waived and meritless. At trial, Plaintiffs offered no evidence that even a single district failed to comply with these principles. J.S. App. 250a–51a. And Act 43 has better population deviation than the two most recent courtdrawn plans, contains a number of municipal splits falling between those two plans, and has a miniscule variance in compactness from the immediately prior court-drawn plan. JA214–15. While Plaintiffs now complain about Act 43’s pairings of incumbents and core retention, their own Demonstration Plan fared significantly worse on these same criteria. See Dkt. 149:112–17; Defs. Ex. 520 (interactive map).8
8 Act 43 has also survived all previous legal challenges, except for one under the Voting Rights Act, in which the district

24
Given that they have no serious argument that Act 43 fails to comply with traditional redistricting principles, Plaintiffs’ position is that such principles should, in effect, be irrelevant in this context.
Plaintiffs misrepresent this Court’s precedent by claiming that this Court has already rejected Defendants’ argument regarding traditional redistricting principles. Appellees’ Br. 56. In fact, of the Justices who would have entertained partisan-gerrymandering claims in Vieth, a majority unambiguously explained that a plan that complies with such principles is not unlawful. Appellants’ Br. 59–60. Nor has this Court “repeatedly rebuffed” Defendants’ arguments in light of its racial-gerrymandering caselaw. Appellees’ Br. 58. A plan that complies with traditional redistricting principles and yet is still predominantly motivated by race raises the most serious constitutional concerns, Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017), whereas politics are “inevitabl[e]” in the redistricting process, Gaffney v. Cummings, 412 U.S. 735, 753 (1973).
Importantly, while this Court has recognized that compliance with traditional redistricting principles typically plays an important role in racial-gerrymandering litigation, compliance with these principles
court held that Latino voters would be better served by “one majority-minority district than with two influence districts.” Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 856 (E.D. Wis. 2012).

25
would never matter under Plaintiffs’ test, at least when the map was drawn by a legislature controlled by one party. In the racial-gerrymandering context, “this Court to date has not affirmed a predominance finding, or remanded a case for a determination of predominance, without evidence that some district lines deviated from traditional principles.” BethuneHill, 137 S. Ct. at 799. Under the first prong of Plaintiffs’ political-gerrymandering test, however, partisan intent will generally be present whenever the map is drawn by a legislature. Supra p. 14. The second prong deals only with a grab bag of social-science metrics. Supra p. 15. And the legislature would not be able to rely upon its compliance with traditional redistricting principles to justify its plan under Plaintiffs’ third prong, because it will always be possible to draw a different map that complies with traditional redistricting principles just as well. Supra pp. 14–15.
While Plaintiffs worry that Defendants’ approach will lead to “false positives” or “false negatives,” Appellees’ Br. 58, that concern is unwarranted. There will be no false positives because Defendants are not suggesting that noncompliance with these principles should be “the basis for relief.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). As for false negatives, Defendants’ position is that compliance with these principles negates the notion of a partisan gerrymander, as that term has been historically understood. Appellants’ Br. 59–62. But to the extent that this Court were to disagree with that proposition as a bright-line rule, it should at least require that

26

any legal test give traditional redistricting principles a central role, whereas Plaintiffs’ approach makes compliance with these principles immaterial.

*

*

*

More generally, Plaintiffs and their amici are wrong when they argue that the existence of computing power and the nature of modern politics justify this Court creating an unprecedented statewide political-gerrymandering cause of action. Four decades ago, this Court observed that because “voting records are available precinct by precinct, ward by ward,” “it requires no special genius to recognize the political consequences of drawing a district line along one street rather than another.” Gaffney, 412 U.S. at 753. Justice Powell in Bandemer discussed how the legislature there used a “private computer firm” with “information fed into the computer [that] primarily concerned the political complexion of the State’s precincts.” 478 U.S. at 162. And Justice Kennedy in Vieth noted the ability of legislative staffers to use “[c]omputer assisted districting” to quickly draw maps. 541 U.S. at 312. While using computers to forward partisan ends is nothing new, political gerrymandering is much older still. Appellants’ Br. 5–10.

Plaintiffs’ own evidence at trial refutes their claims that redistricting maps have become more asymmetrical in recent times. Appellees’ Br. 21–23. The only record evidence that Plaintiffs cite shows that the 50th quantile efficiency gap barely changed

27
between 1972 and 2014, while the 75th quantile was higher (more assymetrical) in 1972 than in 2014. SA227. The oft-repeated falsehood that principles of prudence and restraint must be cast aside because today’s practices are somehow worse than those of the past is a sure prescription for a “remedy[ ] that [ ] is worse than the disease.” The Federalist No. 10, at 53 (James Madison) (George Stade ed., 2006).
CONCLUSION
The district court’s judgment should be reversed.
Respectfully submitted,

BRAD D. SCHIMEL Attorney General

MISHA TSEYTLIN Solicitor General Counsel of Record

KEVIN M. LEROY Deputy Solicitor General

RYAN J. WALSH Chief Deputy Solicitor General

State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

AMY C. MILLER Assistant Solicitor General
BRIAN P. KEENAN Assistant Attorney General

September 2017

 
 (Slip Opinion)

OCTOBER TERM, 2017

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
GILL ET AL. v. WHITFORD ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
No. 16–1161. Argued October 3, 2017—Decided June 18, 2018
Members of the Wisconsin Legislature are elected from single-member legislative districts. Under the Wisconsin Constitution, the legislature must redraw the boundaries of those districts following each census. After the 2010 census, the legislature passed a new districting plan known as Act 43. Twelve Democratic voters, the plaintiffs in this case, alleged that Act 43 harms the Democratic Party’s ability to convert Democratic votes into Democratic seats in the legislature. They asserted that Act 43 does this by “cracking” certain Democratic voters among different districts in which those voters fail to achieve electoral majorities and “packing” other Democratic voters in a few districts in which Democratic candidates win by large margins. The plaintiffs argued that the degree to which packing and cracking has favored one political party over another can be measured by an “efficiency gap” that compares each party’s respective “wasted” votes— i.e., votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win—across all legislative districts. The plaintiffs claimed that the statewide enforcement of Act 43 generated an excess of wasted Democratic votes, thereby violating the plaintiffs’ First Amendment right of association and their Fourteenth Amendment right to equal protection. The defendants, several members of the state election commission, moved to dismiss the plaintiffs’ claims. They argued that the plaintiffs lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative district in which they vote. The three-judge District Court denied the defendants’ motion and, following a trial, concluded that Act 43 was an unconstitutional partisan gerrymander. Regarding standing, the court held that the plaintiffs had suffered a

2

GILL v. WHITFORD

Syllabus
particularized injury to their equal protection rights.
Held: The plaintiffs have failed to demonstrate Article III standing. Pp. 8–22. (a) Over the past five decades this Court has repeatedly been asked to decide what judicially enforceable limits, if any, the Constitution sets on partisan gerrymandering. Previous attempts at an answer have left few clear landmarks for addressing the question and have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. See Gaffney v. Cummings, 412 U. S. 735, Davis v. Bandemer, 478 U. S. 109, Vieth v. Jubelirer, 541 U. S. 267, and League of United Latin American Citizens v. Perry, 548 U. S. 399. Pp. 8–12. (b) A plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy,” Baker v. Carr, 369 U. S. 186, 204. That requirement ensures that federal courts “exercise power that is judicial in nature,” Lance v. Coffman, 549 U. S. 437, 439, 441. To meet that requirement, a plaintiff must show an injury in fact—his pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, and n. 1. The right to vote is “individual and personal in nature,” Reynolds v. Sims, 377 U. S. 533, 561, and “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage, Baker, 369 U. S., at 206. The plaintiffs here alleged that they suffered such injury from partisan gerrymandering, which works through the “cracking” and “packing” of voters. To the extent that the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.” United States v. Hays, 515 U. S. 737, 745. The plaintiffs argue that their claim, like the claims presented in Baker and Reynolds, is statewide in nature. But the holdings in those cases were expressly premised on the understanding that the injuries giving rise to those claims were “individual and personal in nature,” Reynolds, 377 U. S., at 561, because the claims were brought by voters who alleged “facts showing disadvantage to themselves as

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3

Syllabus
individuals,” Baker, 369 U. S., at 206. The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561. Here, the plaintiffs’ claims turn on allegations that their votes have been diluted. Because that harm arises from the particular composition of the voter’s own district, remedying the harm does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district. This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U. S. 343, 357.
The plaintiffs argue that their legal injury also extends to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. To date, however, the Court has not found that this presents an individual and personal injury of the kind required for Article III standing. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes. Pp. 12–17.
(c) Four of the plaintiffs in this case pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, they presented testimony pointing to the lead plaintiff’s hope of achieving a Democratic majority in the legislature. Under the Court’s cases to date, that is a collective political interest, not an individual legal interest. Second, they produced evidence regarding the mapmakers’ deliberations as they drew district lines. The District Court relied on this evidence in concluding that those mapmakers sought to understand the partisan effect of the maps they were drawing. But the plaintiffs’ establishment of injury in fact turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560. Third, the plaintiffs presented partisanasymmetry studies showing that Act 43 had skewed Wisconsin’s statewide map in favor of Republicans. Those studies do not address the effect that a gerrymander has on the votes of particular citizens.

4

GILL v. WHITFORD

Syllabus
They measure instead the effect that a gerrymander has on the fortunes of political parties. That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. Pp. 17–21.
(d) Where a plaintiff has failed to demonstrate standing, this Court usually directs dismissal. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354. Here, however, where the case concerns an unsettled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved, the case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. Pp. 21–22.
218 F. Supp. 3d 837, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined except as to Part III. KAGAN, J., filed a concurring opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.

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1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash­ ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1161
_________________
BEVERLY R. GILL, ET AL., APPELLANTS v.
 WILLIAM WHITFORD, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
[June 18, 2018]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The State of Wisconsin, like most other States, entrusts to its legislature the periodic task of redrawing the bound­ aries of the State’s legislative districts. A group of Wis­ consin Democratic voters filed a complaint in the District Court, alleging that the legislature carried out this task with an eye to diminishing the ability of Wisconsin Demo­ crats to convert Democratic votes into Democratic seats in the legislature. The plaintiffs asserted that, in so doing, the legislature had infringed their rights under the First and Fourteenth Amendments.
But a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has “a personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), distinct from a “generally avail­ able grievance about government,” Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam). That threshold re­ quirement “ensures that we act as judges, and do not engage in policymaking properly left to elected representa­ tives.” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013).

2

GILL v. WHITFORD

Opinion of the Court
Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analy­ sis in this opinion.
I
Wisconsin’s Legislature consists of a State Assembly and a State Senate. Wis. Const., Art. IV, §1. The 99 members of the Assembly are chosen from single districts that must “consist of contiguous territory and be in as compact form as practicable.” §4. State senators are likewise chosen from single-member districts, which are laid on top of the State Assembly districts so that three Assembly districts form one Senate district. See §5; Wis. Stat. §4.001 (2011).
The Wisconsin Constitution gives the legislature the responsibility to “apportion and district anew the mem­ bers of the senate and assembly” at the first session fol­ lowing each census. Art. IV, §3. In recent decades, how­ ever, that responsibility has just as often been taken up by federal courts. Following the census in 1980, 1990, and 2000, federal courts drew the State’s legislative districts when the Legislature and the Governor—split on party lines—were unable to agree on new districting plans. The Legislature has broken the logjam just twice in the last 40 years. In 1983, a Democratic Legislature passed, and a Democratic Governor signed, a new districting plan that remained in effect until the 1990 census. See 1983 Wis. Laws ch. 4. In 2011, a Republican Legislature passed, and a Republican Governor signed, the districting plan at issue here, known as Act 43. See Wis. Stat. §§ 4.009, 4.01–4.99; 2011 Wis. Laws ch. 4. Following the passage of Act 43,

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3

Opinion of the Court
Republicans won majorities in the State Assembly in the 2012 and 2014 elections. In 2012, Republicans won 60 Assembly seats with 48.6% of the two-party statewide vote for Assembly candidates. In 2014, Republicans won 63 Assembly seats with 52% of the statewide vote. 218 F. Supp. 3d 837, 853 (WD Wis. 2016).
In July 2015, twelve Wisconsin voters filed a complaint in the Western District of Wisconsin challenging Act 43. The plaintiffs identified themselves as “supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates.” 1 App. 32, Complaint ¶15. They alleged that Act 43 is a partisan gerrymander that “unfairly favor[s] Republican voters and candidates,” and that it does so by “cracking” and “packing” Democratic voters around Wisconsin. Id., at 28–30, ¶¶5–7. As they explained:
“Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelm­ ing margins.” Id., at 29, ¶5.
Four of the plaintiffs—Mary Lynne Donohue, Wendy Sue Johnson, Janet Mitchell, and Jerome Wallace—alleged that they lived in State Assembly districts where Demo­ crats have been cracked or packed. Id., at 34–36, ¶¶20, 23, 24, 26; see id., at 50–53, ¶¶60–70 (describing packing and cracking in Assembly Districts 22, 26, 66, and 91). All of the plaintiffs also alleged that, regardless of “whether they themselves reside in a district that has been packed or cracked,” they have been “harmed by the manipulation of district boundaries” because Democrats statewide “do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly.” Id., at 33, ¶16.
The plaintiffs argued that, on a statewide level, the

4

GILL v. WHITFORD

Opinion of the Court
degree to which packing and cracking has favored one party over another can be measured by a single calcula­ tion: an “efficiency gap” that compares each party’s respec­ tive “wasted” votes across all legislative districts. “Wasted” votes are those cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win. Id., at 28–29, ¶5. The plaintiffs alleged that Act 43 resulted in an unusually large efficiency gap that fa­ vored Republicans. Id., at 30, ¶7. They also submitted a “Demonstration Plan” that, they asserted, met all of the legal criteria for apportionment, but was at the same time “almost perfectly balanced in its partisan consequences.” Id., at 31, ¶10. They argued that because Act 43 generated a large and unnecessary efficiency gap in favor of Republicans, it violated the First Amendment right of associ­ ation of Wisconsin Democratic voters and their Fourteenth Amendment right to equal protection. The plaintiffs named several members of the state election commission as defendants in the action. Id., at 36, ¶¶28–30.
The election officials moved to dismiss the complaint. They argued, among other things, that the plaintiffs lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legis­ lative districts in which they vote. A three-judge panel of the District Court, see 28 U. S. C. §2284(a), denied the defendants’ motion. In the District Court’s view, the plaintiffs “identif[ied] their injury as not simply their inability to elect a representative in their own districts, but also their reduced opportunity to be represented by Democratic legislators across the state.” Whitford v. Nichol, 151 F. Supp. 3d 918, 924 (WD Wis. 2015). It there­ fore followed, in the District Court’s opinion, that “[b]ecause plaintiffs’ alleged injury in this case relates to their statewide representation, . . . they should be permit­ ted to bring a statewide claim.” Id., at 926.

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5

Opinion of the Court
The case proceeded to trial, where the plaintiffs pre­ sented testimony from four fact witnesses. The first was lead plaintiff William Whitford, a retired law professor at the University of Wisconsin in Madison. Whitford testi­ fied that he lives in Madison in the 76th Assembly Dis­ trict, and acknowledged on cross-examination that this is, under any plausible circumstances, a heavily Democratic district. Under Act 43, the Democratic share of the As­ sembly vote in Whitford’s district is 81.9%; under the plaintiffs’ ideal map—their Demonstration Plan—the projected Democratic share of the Assembly vote in Whit­ ford’s district would be 82%. 147 Record 35–36. Whitford therefore conceded that Act 43 had not “affected [his] ability to vote for and elect a Democrat in [his] district.” Id., at 37. Whitford testified that he had nevertheless suffered a harm “relate[d] to [his] ability to engage in campaign activity to achieve a majority in the Assembly and the Senate.” Ibid. As he explained, “[t]he only practi­ cal way to accomplish my policy objectives is to get a majority of the Democrats in the Assembly and the Senate ideally in order to get the legislative product I prefer.” Id., at 33.
The plaintiffs also presented the testimony of legislative aides Adam Foltz and Tad Ottman, as well as that of Professor Ronald Gaddie, a political scientist who helped design the Act 43 districting map, regarding how that map was designed and adopted. In particular, Professor Gaddie testified about his creation of what he and the District Court called “S curves”: color-coded tables of the estimated partisan skew of different draft redistricting maps. See 218 F. Supp. 3d, at 850, 858. The colors corresponded with assessments regarding whether different districts tilted Republican or Democratic under various statewide political scenarios. The S curve for the map that was eventually adopted projected that “Republicans would maintain a majority under any likely voting scenario,”

6

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Opinion of the Court
with Democrats needing 54% of the statewide vote to secure a majority in the legislature. Id., at 852.
Finally, the parties presented testimony from four ex­ pert witnesses. The plaintiffs’ experts, Professor Kenneth Mayer and Professor Simon Jackman, opined that— according to their efficiency-gap analyses—the Act 43 map would systematically favor Republicans for the duration of the decade. See id., at 859–861. The defendants’ experts, Professor Nicholas Goedert and Sean Trende, opined that efficiency gaps alone are unreliable measures of durable partisan advantage, and that the political geography of Wisconsin currently favors Republicans because Demo­ crats—who tend to be clustered in large cities—are ineffi­ ciently distributed in many parts of Wisconsin for purposes of winning elections. See id., at 861–862.
At the close of evidence, the District Court concluded— over the dissent of Judge Griesbach—that the plaintiffs had proved a violation of the First and Fourteenth Amendments. The court set out a three-part test for identifying unconstitutional gerrymanders: A redistricting map violates the First Amendment and the Equal Protec­ tion Clause of the Fourteenth Amendment if it “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Id., at 884.
The court went on to find, based on evidence concerning the manner in which Act 43 had been adopted, that “one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade.” Id., at 896. It also found that the “more efficient distribution of Republican voters has allowed the Republican Party to translate its votes into seats with significantly greater ease and to achieve— and preserve—control of the Wisconsin legislature.” Id.,

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7

Opinion of the Court
at 905. As to the third prong of its test, the District Court concluded that the burdens the Act 43 map imposed on Democrats could not be explained by “legitimate state prerogatives [or] neutral factors.” Id., at 911. The court recognized that “Wisconsin’s political geography, particu­ larly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republi­ can Party a natural, but modest, advantage in the district­ ing process,” but found that this inherent geographic disparity did not account for the magnitude of the Repub­ lican advantage. Id., at 921, 924.
Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” Id., at 928. It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wiscon­ sin Republicans,” and that “Wisconsin Democrats, there­ fore, have suffered a personal injury to their Equal Protec­ tion rights.” Ibid. The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plain­ tiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” Id., at 930.
Judge Griesbach dissented. He wrote that, under this Court’s existing precedents, “partisan intent” to benefit one party rather than the other in districting “is not ille­ gal, but is simply the consequence of assigning the task of redistricting to the political branches.” Id., at 939. He observed that the plaintiffs had not attempted to prove that “specific districts . . . had been gerrymandered,” but rather had “relied on statewide data and calculations.” Ibid. And he argued that the plaintiffs’ proof, resting as it did on statewide data, had “no relevance to any gerryman­ dering injury alleged by a voter in a single district.” Id., at

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952. On that basis, Judge Griesbach would have entered judgment for the defendants.
The District Court enjoined the defendants from using the Act 43 map in future elections and ordered them to have a remedial districting plan in place no later than November 1, 2017. The defendants appealed directly to this Court, as provided under 28 U. S. C. §1253. We stayed the District Court’s judgment and postponed con­ sideration of our jurisdiction. 582 U. S. ___ (2017).
II
 A 

Over the past five decades this Court has been repeat­ edly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question. What our precedents have to say on the topic is, however, instructive as to the myriad competing considerations that partisan gerrymandering claims involve. Our efforts to sort through those considerations have generated conflict­ ing views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury.
Our first consideration of a partisan gerrymandering claim came in Gaffney v. Cummings, 412 U. S. 735 (1973). There a group of plaintiffs challenged the constitutionality of a Connecticut redistricting plan that “consciously and overtly adopted and followed a policy of ‘political fairness,’ which aimed at a rough scheme of proportional represen­ tation of the two major political parties.” Id., at 738. To that end, the redistricting plan broke up numerous towns, “wiggl[ing] and joggl[ing]” district boundary lines in order to “ferret out pockets of each party’s strength.” Id., at 738, and n. 3, 752, n. 18. The plaintiffs argued that, notwith­ standing the rough population equality of the districts, the

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plan was unconstitutional because its consciously political design was “nothing less than a gigantic political gerry­ mander.” Id., at 752. This Court rejected that claim. We reasoned that it would be “idle” to hold that “any political consideration taken into account in fashioning a reappor­ tionment plan is sufficient to invalidate it,” because dis­ tricting “inevitably has and is intended to have substan­ tial political consequences.” Id., at 752–753.
Thirteen years later came Davis v. Bandemer, 478 U. S. 109 (1986). Unlike the bipartisan gerrymander at issue in Gaffney, the allegation in Bandemer was that Indiana Republicans had gerrymandered Indiana’s legislative districts “to favor Republican incumbents and candidates and to disadvantage Democratic voters” through what the plaintiffs called the “stacking” (packing) and “splitting” (cracking) of Democrats. 478 U. S., at 116–117 (plurality opinion). A majority of the Court agreed that the case before it was justiciable. Id., at 125, 127. The Court could not, however, settle on a standard for what constitutes an unconstitutional partisan gerrymander.
Four Justices would have required the Bandemer plain­ tiffs to “prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id., at 127. In that plurality’s view, the plaintiffs had failed to make a sufficient showing on the latter point because their evidence of unfavorable election results for Democrats was limited to a single election cycle. See id., at 135.
Three Justices, concurring in the judgment, would have held that the “Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims.” Id., at 147 (opinion of O’Connor, J.). Justice O’Connor took issue, in particular, with the plurality’s focus on factual questions concerning “statewide electoral success.” Id., at 158. She warned that allowing district courts to “strike down apportion­

10

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Opinion of the Court
ment plans on the basis of their prognostications as to the outcome of future elections or future apportionments invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.” Id., at 160.
Justice Powell, joined by Justice Stevens, concurred in part and dissented in part. In his view, the plaintiffs’ claim was not simply that their “voting strength was diluted statewide,” but rather that “certain key districts were grotesquely gerrymandered to enhance the election prospects of Republican candidates.” Id., at 162, 169. Thus, he would have focused on the question “whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends.” Id., at 165.
Eighteen years later, we revisited the issue in Vieth v. Jubelirer, 541 U. S. 267 (2004). In that case the plaintiffs argued that Pennsylvania’s Legislature had created “me­ andering and irregular” congressional districts that “ig­ nored all traditional redistricting criteria, including the preservation of local government boundaries,” in order to provide an advantage to Republican candidates for Con­ gress. Id., at 272–273 (plurality opinion) (brackets omitted).
The Vieth Court broke down on numerous lines. Writ­ ing for a four-Justice plurality, Justice Scalia would have held that the plaintiffs’ claims were nonjusticiable because there was no “judicially discernible and manageable standard” by which to decide them. Id., at 306. On those grounds, the plurality affirmed the dismissal of the claims. Ibid. JUSTICE KENNEDY concurred in the judgment. He noted that “there are yet no agreed upon substantive principles of fairness in districting,” and that, consequently, “we have no basis on which to define clear, manageable, and politically neutral standards for measuring the par­ ticular burden” on constitutional rights. Id., at 307–308. He rejected the principle advanced by the plaintiffs—that

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Opinion of the Court
“a majority of voters in [Pennsylvania] should be able to elect a majority of [Pennsylvania’s] congressional delega­ tion”—as a “precept” for which there is “no authority.” Id., at 308. Yet JUSTICE KENNEDY recognized the possibility that “in another case a standard might emerge that suitably demonstrates how an apportionment’s de facto incor­ poration of partisan classifications burdens” representa­ tional rights. Id., at 312.
Four Justices dissented in three different opinions. Justice Stevens would have permitted the plaintiffs’ claims to proceed on a district-by-district basis, using a legal standard similar to the standard for racial gerry­ mandering set forth in Shaw v. Hunt, 517 U. S. 899 (1996). See 541 U. S., at 335–336, 339. Under this stand­ ard, any district with a “bizarre shape” for which the only possible explanation was “a naked desire to increase parti­ san strength” would be found unconstitutional under the Equal Protection Clause. Id., at 339. Justice Souter, joined by JUSTICE GINSBURG, agreed that a plaintiff alleg­ ing unconstitutional partisan gerrymandering should proceed on a district-by-district basis, as “we would be able to call more readily on some existing law when we defined what is suspect at the district level.” See id., at 346–347.
JUSTICE BREYER dissented on still other grounds. In his view, the drawing of single-member legislative districts— even according to traditional criteria—is “rarely . . . politi­ cally neutral.” Id., at 359. He therefore would have dis­ tinguished between gerrymandering for passing political advantage and gerrymandering leading to the “unjustified entrenchment” of a political party. Id., at 360–361.
The Court last took up this question in League of United Latin American Citizens v. Perry, 548 U. S. 399 (2006) (LULAC). The plaintiffs there challenged a mid-decade redistricting map passed by the Texas Legislature. As in Vieth, a majority of the Court could find no justiciable standard by which to resolve the plaintiffs’ partisan ger­

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Opinion of the Court
rymandering claims. Relevant to this case, an amicus brief in support of the LULAC plaintiffs proposed a “sym­ metry standard” to “measure partisan bias” by comparing how the two major political parties “would fare hypotheti­ cally if they each . . . received a given percentage of the vote.” 548 U. S., at 419 (opinion of KENNEDY, J.). JUSTICE KENNEDY noted some wariness at the prospect of “adopt­ ing a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” Id., at 420. Aside from that problem, he wrote, the partisan bias standard shed no light on “how much partisan dominance is too much.” Ibid. JUSTICE KENNEDY therefore concluded that “asymmetry alone is not a reliable measure of unconstitutional partisanship.” Ibid.
Justice Stevens would have found that the Texas map was a partisan gerrymander based in part on the asym­ metric advantage it conferred on Republicans in convert­ ing votes to seats. Id., at 466–467, 471–473 (opinion concurring in part and dissenting in part). Justice Souter, writing for himself and JUSTICE GINSBURG, noted that he would not “rule out the utility of a criterion of symmetry,” and that “further attention could be devoted to the admin­ istrability of such a criterion at all levels of redistricting and its review.” Id., at 483–484 (opinion concurring in part and dissenting in part).
B
At argument on appeal in this case, counsel for the plaintiffs argued that this Court can address the problem of partisan gerrymandering because it must: The Court should exercise its power here because it is the “only institution in the United States” capable of “solv[ing] this problem.” Tr. of Oral Arg. 62. Such invitations must be answered with care. “Failure of political will does not justify unconstitutional remedies.” Clinton v. City of New

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13

Opinion of the Court
York, 524 U. S. 417, 449 (1998) (KENNEDY, J., concurring). Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the de­ fault of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.
Our considerable efforts in Gaffney, Bandemer, Vieth, and LULAC leave unresolved whether such claims may be brought in cases involving allegations of partisan gerry­ mandering. In particular, two threshold questions re­ main: what is necessary to show standing in a case of this sort, and whether those claims are justiciable. Here we do not decide the latter question because the plaintiffs in this case have not shown standing under the theory upon which they based their claims for relief.
To ensure that the Federal Judiciary respects “the proper—and properly limited—role of the courts in a democratic society,” Allen v. Wright, 468 U. S. 737, 750 (1984), a plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy.” Baker, 369 U. S., at 204. A federal court is not “a forum for generalized grievances,” and the require­ ment of such a personal stake “ensures that courts exer­ cise power that is judicial in nature.” Lance, 549 U. S., at 439, 441. We enforce that requirement by insisting that a plaintiff satisfy the familiar three-part test for Article III standing: that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 6). Foremost among these requirements is injury in fact—a plaintiff ’s pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v.

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Defenders of Wildlife, 504 U. S. 555, 560, and n. 1 (1992). We have long recognized that a person’s right to vote is
“individual and personal in nature.” Reynolds v. Sims, 377 U. S. 533, 561 (1964). Thus, “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage. Baker, 369 U. S., at 206. The plaintiffs in this case alleged that they suffered such injury from partisan gerrymandering, which works through “packing” and “cracking” voters of one party to disadvantage those voters. 1 App. 28–29, 32–33, Complaint ¶¶5, 15. That is, the plaintiffs claim a consti­ tutional right not to be placed in legislative districts delib­ erately designed to “waste” their votes in elections where their chosen candidates will win in landslides (packing) or are destined to lose by closer margins (cracking). Id., at 32–33, ¶15.
To the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. This “disadvantage to [the voter] as [an] individual[ ],” Baker, 369 U. S., at 206, therefore results from the bound­ aries of the particular district in which he resides. And a plaintiff ’s remedy must be “limited to the inadequacy that produced [his] injury in fact.” Lewis v. Casey, 518 U. S. 343, 357 (1996). In this case the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district.
For similar reasons, we have held that a plaintiff who alleges that he is the object of a racial gerrymander—a drawing of district lines on the basis of race—has standing to assert only that his own district has been so gerryman­ dered. See United States v. Hays, 515 U. S. 737, 744–745 (1995). A plaintiff who complains of gerrymandering, but

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15

Opinion of the Court
who does not live in a gerrymandered district, “assert[s] only a generalized grievance against governmental con­ duct of which he or she does not approve.” Id., at 745. Plaintiffs who complain of racial gerrymandering in their State cannot sue to invalidate the whole State’s legislative districting map; such complaints must proceed “district­ by-district.” Alabama Legislative Black Caucus v. Ala­ bama, 575 U. S. ___, ___ (2015) (slip op., at 6).
The plaintiffs argue that their claim of statewide injury is analogous to the claims presented in Baker and Reyn­ olds, which they assert were “statewide in nature” because they rested on allegations that “districts throughout a state [had] been malapportioned.” Brief for Appellees 29. But, as we have already noted, the holdings in Baker and Reynolds were expressly premised on the understanding that the injuries giving rise to those claims were “individ­ ual and personal in nature,” Reynolds, 377 U. S., at 561, because the claims were brought by voters who alleged “facts showing disadvantage to themselves as individuals,” Baker, 369 U. S., at 206.
The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those mal­ apportionment cases, the only way to vindicate an indi­ vidual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) ( per curiam).
Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been

16

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Opinion of the Court
packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.
The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III stand­ ing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legisla­ ture is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “gen­ eral interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).
We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies. JUSTICE KAGAN’S concurring opinion endeavors to address “other kinds of constitutional harm,” see post, at 8, perhaps involving different kinds of plain­ tiffs, see post, at 9, and differently alleged burdens, see

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Opinion of the Court
ibid. But the opinion of the Court rests on the under­ standing that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others. See Public Workers v. Mitchell, 330 U. S. 75, 90 (1947) (noting that courts must “respect the limits of [their] unique authority” and engage in “[j]udicial exposition . . . only when necessary to decide definite issues between litigants”). The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other. And the sum of the standing principles articulated here, as applied to this case, is that the harm asserted by the plaintiffs is best understood as arising from a burden on those plaintiffs’ own votes. In this gerrymandering context that burden arises through a voter’s placement in a “cracked” or “packed” district.
C
Four of the plaintiffs in this case—Mary Lynne Donohue, Wendy Sue Johnson, Janet Mitchell, and Je­ rome Wallace—pleaded a particularized burden along such lines. They alleged that Act 43 had “dilut[ed] the influence” of their votes as a result of packing or cracking in their legislative districts. See 1 App. 34–36, Complaint ¶¶20, 23, 24, 26. The facts necessary to establish stand­ ing, however, must not only be alleged at the pleading stage, but also proved at trial. See Defenders of Wildlife, 504 U. S., at 561. As the proceedings in the District Court progressed to trial, the plaintiffs failed to meaningfully pursue their allegations of individual harm. The plaintiffs did not seek to show such requisite harm since, on this record, it appears that not a single plaintiff sought to prove that he or she lives in a cracked or packed district. They instead rested their case at trial—and their argu­ ments before this Court—on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence.

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Opinion of the Court
First, the plaintiffs presented the testimony of the lead plaintiff, Professor Whitford. But Whitford’s testimony does not support any claim of packing or cracking of him­ self as a voter. Indeed, Whitford expressly acknowledged that Act 43 did not affect the weight of his vote. 147 Rec­ ord 37. His testimony points merely to his hope of achiev­ ing a Democratic majority in the legislature—what the plaintiffs describe here as their shared interest in the composition of “the legislature as a whole.” Brief for Ap­ pellees 32. Under our cases to date, that is a collective political interest, not an individual legal interest, and the Court must be cautious that it does not become “a forum for generalized grievances.” Lance, 549 U. S., at 439, 441.
Second, the plaintiffs provided evidence regarding the mapmakers’ deliberations as they drew district lines. As the District Court recounted, the plaintiffs’ evidence showed that the mapmakers “test[ed] the partisan makeup and performance of districts as they might be configured in different ways.” 218 F. Supp. 3d, at 891. Each of the mapmakers’ alternative configurations came with a table that listed the number of “Safe” and “Lean” seats for each party, as well as “Swing” seats. Ibid. The mapmakers also labeled certain districts as ones in which “GOP seats [would be] strengthened a lot,” id., at 893; 2 App. 344, or which would result in “Statistical Pick Ups” for Republicans. 218 F. Supp. 3d, at 893 (alterations omitted). And they identified still other districts in which “GOP seats [would be] strengthened a little,” “weakened a little,” or were “likely lost.” Ibid.
The District Court relied upon this evidence in conclud­ ing that, “from the outset of the redistricting process, the drafters sought to understand the partisan effect of the maps they were drawing.” Id., at 895. That evidence may well be pertinent with respect to any ultimate determina­ tion whether the plaintiffs may prevail in their claims against the defendants, assuming such claims present a

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Opinion of the Court
justiciable controversy. But the question at this point is whether the plaintiffs have established injury in fact. That turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or immi­ nent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560.
Third, the plaintiffs offered evidence concerning the impact that Act 43 had in skewing Wisconsin’s statewide political map in favor of Republicans. This evidence, which made up the heart of the plaintiffs’ case, was de­ rived from partisan-asymmetry studies similar to those discussed in LULAC. The plaintiffs contend that these studies measure deviations from “partisan symmetry,” which they describe as the “social scientific tenet that [districting] maps should treat parties symmetrically.” Brief for Appellees 37. In the District Court, the plaintiffs’ case rested largely on a particular measure of partisan asymmetry—the “efficiency gap” of wasted votes. See supra, at 3–4. That measure was first developed in two academic articles published shortly before the initiation of this lawsuit. See Stephanopoulos & McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015); McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Leg. Studies Q. 55 (2014).
The plaintiffs asserted in their complaint that the “effi­ ciency gap captures in a single number all of a district plan’s cracking and packing.” 1 App. 28–29, Complaint ¶5 (emphasis deleted). That number is calculated by sub­ tracting the statewide sum of one party’s wasted votes from the statewide sum of the other party’s wasted votes and dividing the result by the statewide sum of all votes cast, where “wasted votes” are defined as all votes cast for a losing candidate and all votes cast for a winning candi­ date beyond the 50% plus one that ensures victory. See Brief for Eric McGhee as Amicus Curiae 6, and n. 3. The

20

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Opinion of the Court
larger the number produced by that calculation, the greater the asymmetry between the parties in their efficiency in converting votes into legislative seats. Though they take no firm position on the matter, the plaintiffs have suggested that an efficiency gap in the range of 7% to 10% should trigger constitutional scrutiny. See Brief for Appellees 52–53, and n. 17.
The plaintiffs and their amici curiae promise us that the efficiency gap and similar measures of partisan asym­ metry will allow the federal courts—armed with just “a pencil and paper or a hand calculator”—to finally solve the problem of partisan gerrymandering that has confounded the Court for decades. Brief for Heather K. Gerken et al. as Amici Curiae 27 (citing Wang, Let Math Save Our Democracy, N. Y. Times, Dec. 5, 2015). We need not doubt the plaintiffs’ math. The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens. Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties.
Consider the situation of Professor Whitford, who lives in District 76, where, defendants contend, Democrats are “naturally” packed due to their geographic concentration, with that of plaintiff Mary Lynne Donohue, who lives in Assembly District 26 in Sheboygan, where Democrats like her have allegedly been deliberately cracked. By all ac­ counts, Act 43 has not affected Whitford’s individual vote for his Assembly representative—even plaintiffs’ own demonstration map resulted in a virtually identical dis­ trict for him. Donohue, on the other hand, alleges that Act 43 burdened her individual vote. Yet neither the efficiency gap nor the other measures of partisan asymmetry offered by the plaintiffs are capable of telling the differ­ ence between what Act 43 did to Whitford and what it did

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21

Opinion of the Court
to Donohue. The single statewide measure of partisan advantage delivered by the efficiency gap treats Whitford and Donohue as indistinguishable, even though their individual situations are quite different.
That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitu­ tionally prescribed role is to vindicate the individual rights of the people appearing before it.
III
In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354 (2006). This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.
We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove con­ crete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 8) (remanding for further consideration of the plaintiffs’ gerrymandering claims on a district-by-district basis). We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dis­ pensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. Cuno, 547 U. S., at 353.

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Opinion of the Court
The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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1

KAGAN, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1161
_________________
BEVERLY R. GILL, ET AL., APPELLANTS v.
 WILLIAM WHITFORD, ET AL. 


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
[June 18, 2018]

JUSTICE KAGAN,
JUSTICE BREYER, concurring.

with and

whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR join,

The Court holds today that a plaintiff asserting a parti­
san gerrymandering claim based on a theory of vote dilu­ tion must prove that she lives in a packed or cracked
district in order to establish standing. See ante, at 14–17. The Court also holds that none of the plaintiffs here have
yet made that required showing. See ante, at 17. I agree with both conclusions, and with the Court’s
decision to remand this case to allow the plaintiffs to prove
that they live in packed or cracked districts, see ante, at 21. I write to address in more detail what kind of evidence
the present plaintiffs (or any additional ones) must offer to support that allegation. And I write to make some obser­ vations about what would happen if they succeed in prov­
ing standing—that is, about how their vote dilution case could then proceed on the merits. The key point is that
the case could go forward in much the same way it did below: Given the charges of statewide packing and crack­ ing, affecting a slew of districts and residents, the chal­
lengers could make use of statewide evidence and seek a statewide remedy.
I also write separately because I think the plaintiffs may have wanted to do more than present a vote dilution

2

GILL v. WHITFORD

KAGAN, J., concurring
theory. Partisan gerrymandering no doubt burdens indi­ vidual votes, but it also causes other harms. And at some points in this litigation, the plaintiffs complained of a different injury—an infringement of their First Amend­ ment right of association. The Court rightly does not address that alternative argument: The plaintiffs did not advance it with sufficient clarity or concreteness to make it a real part of the case. But because on remand they may well develop the associational theory, I address the standing requirement that would then apply. As I’ll ex­ plain, a plaintiff presenting such a theory would not need to show that her particular voting district was packed or cracked for standing purposes because that fact would bear no connection to her substantive claim. Indeed, everything about the litigation of that claim—from stand­ ing on down to remedy—would be statewide in nature.
Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 1) (quoting Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion); alterations omitted). More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough indi­ viduals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy.

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3

KAGAN, J., concurring

I 

As the Court explains, the plaintiffs’ theory in this case focuses on vote dilution. See ante, at 15 (“Here, the plain­ tiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted”); see also ante, at 14, 16–17. That is, the plaintiffs assert that Wisconsin’s State Assembly Map has caused their votes “to carry less weight than [they] would carry in another, hypothetical district.” Ante, at 16. And the mechanism used to wreak that harm is “packing” and “cracking.” Ante, at 14. In a relatively few districts, the mapmakers packed supermajorities of Democratic voters—well beyond the number needed for a Democratic candidate to prevail. And in many more dis­ tricts, dispersed throughout the State, the mapmakers cracked Democratic voters—spreading them sufficiently thin to prevent them from electing their preferred candi­ dates. The result of both practices is to “waste” Demo­ crats’ votes. Ibid.
The harm of vote dilution, as this Court has long stated, is “individual and personal in nature.” Reynolds v. Sims, 377 U. S. 533, 561 (1964); see ante, at 15. It arises when an election practice—most commonly, the drawing of district lines—devalues one citizen’s vote as compared to others. Of course, such practices invariably affect more than one citizen at a time. For example, our original oneperson, one-vote cases considered how malapportioned maps “contract[ed] the value” of urban citizens’ votes while “expand[ing]” the value of rural citizens’ votes. Wesberry v. Sanders, 376 U. S. 1, 7 (1964). But we under­ stood the injury as giving diminished weight to each par­ ticular vote, even if millions were so touched. In such cases, a voter living in an overpopulated district suffered “disadvantage to [herself] as [an] individual[ ]”: Her vote counted for less than the votes of other citizens in her State. Baker v. Carr, 369 U. S. 186, 206 (1962); see ante, at 15. And that kind of disadvantage is what a plaintiff

4

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asserting a vote dilution claim—in the one-person, onevote context or any other—always alleges.
To have standing to bring a partisan gerrymandering claim based on vote dilution, then, a plaintiff must prove that the value of her own vote has been “contract[ed].” Wesberry, 376 U. S., at 7. And that entails showing, as the Court holds, that she lives in a district that has been either packed or cracked. See ante, at 17. For packing and cracking are the ways in which a partisan gerryman­ der dilutes votes. Cf. Voinovich v. Quilter, 507 U. S. 146, 153–154 (1993) (explaining that packing or cracking can also support racial vote dilution claims). Consider the perfect form of each variety. When a voter resides in a packed district, her preferred candidate will win no matter what; when a voter lives in a cracked district, her chosen candidate stands no chance of prevailing. But either way, such a citizen’s vote carries less weight—has less conse­ quence—than it would under a neutrally drawn map. See ante, at 14, 16. So when she shows that her district has been packed or cracked, she proves, as she must to estab­ lish standing, that she is “among the injured.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 563 (1992) (quoting Sierra Club v. Morton, 405 U. S. 727, 735 (1972)); see ante, at 17.
In many partisan gerrymandering cases, that threshold showing will not be hard to make. Among other ways of proving packing or cracking, a plaintiff could produce an alternative map (or set of alternative maps)—comparably consistent with traditional districting principles—under which her vote would carry more weight. Cf. Ante, at 20 (suggesting how an alternative map may shed light on vote dilution or its absence); Easley v. Cromartie, 532 U. S. 234, 258 (2001) (discussing the use of alternative maps as evidence in a racial gerrymandering case); Cooper v. Harris, 581 U. S. ___, ___–___ (2017) (slip op., at 28–34) (same); Brief for Political Geography Scholars as Amici

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Curiae 12–14 (describing computer simulation techniques for devising alternative maps). For example, a Democratic plaintiff living in a 75%-Democratic district could prove she was packed by presenting a different map, drawn without a focus on partisan advantage, that would place her in a 60%-Democratic district. Or conversely, a Demo­ cratic plaintiff residing in a 35%-Democratic district could prove she was cracked by offering an alternative, neutrally drawn map putting her in a 50–50 district. The precise numbers are of no import. The point is that the plaintiff can show, through drawing alternative district lines, that partisan-based packing or cracking diluted her vote.
Here, the Court is right that the plaintiffs have so far failed to make such a showing. See ante, at 17–20. Wil­ liam Whitford was the only plaintiff to testify at trial about the alleged gerrymander’s effects. He expressly acknowledged that his district would be materially identi­ cal under any conceivable map, whether or not drawn to achieve partisan advantage. See ante, at 18, 20. That means Wisconsin’s plan could not have diluted Whitford’s own vote. So whatever other claims he might have, see infra, at 8–9, Whitford is not “among the injured” in a vote dilution challenge. Lujan, 504 U. S., at 563 (quoting Sierra Club, 405 U. S., at 735). Four other plaintiffs differed from Whitford by alleging in the complaint that they lived in packed or cracked districts. But for whatever reason, they failed to back up those allegations with evi­ dence as the suit proceeded. See ante, at 17. So they too did not show the injury—a less valuable vote—central to their vote dilution theory.
That problem, however, may be readily fixable. The Court properly remands this case to the District Court “so that the plaintiffs may have an opportunity” to “demon­ strate a burden on their individual votes.” Ante, at 21. That means the plaintiffs—both the four who initially made those assertions and any others (current or newly

6

GILL v. WHITFORD

KAGAN, J., concurring
joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here al­ leged—and the District Court found, see 218 F. Supp. 3d 837, 896 (WD Wis. 2016)—that a unified Republican gov­ ernment set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the gov­ ernment allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone, No. 17–333) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there. And if (or to the extent) that test is met, the court can proceed to decide all distinctive merits issues and award appropriate remedies.
When the court addresses those merits questions, it can consider statewide (as well as local) evidence. Of course, the court below and others like it are currently debating, without guidance from this Court, what elements make up a vote dilution claim in the partisan gerrymandering context. But assume that the plaintiffs must prove illicit partisan intent—a purpose to dilute Democrats’ votes in drawing district lines. The plaintiffs could then offer evidence about the mapmakers’ goals in formulating the entire statewide map (which would predictably carry down to individual districting decisions). So, for example, the plaintiffs here introduced proof that the mapmakers looked to partisan voting data when drawing districts throughout the State—and that they graded draft maps according to the amount of advantage those maps con­

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KAGAN, J., concurring
ferred on Republicans. See 218 F. Supp. 3d, at 890–896. This Court has explicitly recognized the relevance of such statewide evidence in addressing racial gerrymandering claims of a district-specific nature. “Voters,” we held, “of course[ ] can present statewide evidence in order to prove racial gerrymandering in a particular district.” Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 7). And in particular, “[s]uch evidence is perfectly relevant” to showing that mapmakers had an invidious “motive” in drawing the lines of “multiple dis­ tricts in the State.” Id., at ___ (slip op., at 10). The same should be true for partisan gerrymandering.
Similarly, cases like this one might warrant a statewide remedy. Suppose that mapmakers pack or crack a critical mass of State Assembly districts all across the State to elect as many Republican politicians as possible. And suppose plaintiffs residing in those districts prevail in a suit challenging that gerrymander on a vote dilution theory. The plaintiffs might then receive exactly the relief sought in this case. To be sure, remedying each plaintiff ’s vote dilution injury “requires revising only such districts as are necessary to reshape [that plaintiff ’s] district—so that the [plaintiff] may be unpacked or uncracked, as the case may be.” Ante, at 16. But with enough plaintiffs joined together—attacking all the packed and cracked districts in a statewide gerrymander—those obligatory revisions could amount to a wholesale restructuring of the State’s districting plan. The Court recognizes as much. It states that a proper remedy in a vote dilution case “does not necessarily require restructuring all of the State’s legislative districts.” Ibid. (emphasis added). Not neces­ sarily—but possibly. It all depends on how much redis­ tricting is needed to cure all the packing and cracking that the mapmakers have done.

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II
Everything said so far relates only to suits alleging that a partisan gerrymander dilutes individual votes. That is the way the Court sees this litigation. See ante, at 14–17. And as I’ll discuss, that is the most reasonable view. See infra, at 10–11. But partisan gerrymanders inflict other kinds of constitutional harm as well. Among those inju­ ries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations, and their members. The plaintiffs here have sometimes pointed to that kind of harm. To the extent they meant to do so, and choose to do so on remand, their associational claim would occasion a different stand­ ing inquiry than the one in the Court’s opinion.
JUSTICE KENNEDY explained the First Amendment associational injury deriving from a partisan gerrymander in his concurring opinion in Vieth, 541 U. S. 267. “Repre­ sentative democracy,” JUSTICE KENNEDY pointed out, is today “unimaginable without the ability of citizens to band together” to advance their political beliefs. Id., at 314 (opinion concurring in judgment) (quoting California Democratic Party v. Jones, 530 U. S. 567, 574 (2000)). That means significant “First Amendment concerns arise” when a State purposely “subject[s] a group of voters or their party to disfavored treatment.” 541 U. S., at 314. Such action “burden[s] a group of voters’ representational rights.” Ibid.; see id., at 315 (similarly describing the “burden[] on a disfavored party and its voters” and the “burden [on] a group’s representational rights”). And it does so because of their “political association,” “participa­ tion in the electoral process,” “voting history,” or “expres­ sion of political views.” Id., at 314–315.
As so formulated, the associational harm of a partisan gerrymander is distinct from vote dilution. Consider an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left

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9

KAGAN, J., concurring
untouched (neither packed nor cracked). His individual vote carries no less weight than it did before. But if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party. This is the kind of “burden” to “a group of voters’ representational rights” JUSTICE KENNEDY spoke of. Id., at 314. Members of the “disfavored party” in the State, id., at 315, deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives). See Anderson v. Celebrezze, 460 U. S. 780, 791–792, and n. 12 (1983) (con­ cluding that similar harms inflicted by a state election law amounted to a “burden imposed on . . . associational rights”). And what is true for party members may be doubly true for party officials and triply true for the party itself (or for related organizations). Cf. California Democratic Party, 530 U. S., at 586 (holding that a state law violated state political parties’ First Amendment rights of association). By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions.
And if that is the essence of the harm alleged, then the standing analysis should differ from the one the Court applies. Standing, we have long held, “turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U. S. 490, 500 (1975). Indeed, that idea lies at the root of today’s opinion. It is because the Court views the harm alleged as vote dilution that it (rightly) insists that each plaintiff show packing or cracking in her own district to establish her standing. See ante, at 14–17; supra, at 3–4. But when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a

10

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statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. See supra, at 8–9. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.
On occasion, the plaintiffs here have indicated that they have an associational claim in mind. In addition to re­ peatedly alleging vote dilution, their complaint asserted in general terms that Wisconsin’s districting plan infringes their “First Amendment right to freely associate with each other without discrimination by the State based on that association.” 1 App. 61, Complaint ¶91. Similarly, the plaintiffs noted before this Court that “[b]eyond diluting votes, partisan gerrymandering offends First Amendment values by penalizing citizens because of . . . their associa­ tion with a political party.” Brief for Appellees 36 (inter­ nal quotation marks omitted). And finally, the plaintiffs’ evidence of partisan asymmetry well fits a suit alleging associational injury (although, as noted below, that was not how it was used, see infra, at 11). As the Court points out, what those statistical metrics best measure is a ger­ rymander’s effect “on the fortunes of political parties” and those associated with them. Ante, at 20.
In the end, though, I think the plaintiffs did not suffi­ ciently advance a First Amendment associational theory to avoid the Court’s holding on standing. Despite referring to that theory in their complaint, the plaintiffs tried this case as though it were about vote dilution alone. Their

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testimony and other evidence went toward establishing the effects of rampant packing and cracking on the value of individual citizens’ votes. Even their proof of partisan asymmetry was used for that purpose—although as noted above, it could easily have supported the alternative theory of associational harm, see supra, at 10. The plaintiffs joining in this suit do not include the State Democratic Party (or any related statewide organization). They did not emphasize their membership in that party, or their activities supporting it. And they did not speak to any tangible associational burdens—ways the gerrymander had debilitated their party or weakened its ability to carry out its core functions and purposes, see supra, at 8–9. Even in this Court, when disputing the State’s argument that they lacked standing, the plaintiffs reiterated their suit’s core theory: that the gerrymander “intentionally, severely, durably, and unjustifiably dilutes Democratic votes.” Brief for Appellees 29–30. Given that theory, the plaintiffs needed to show that their own votes were indeed diluted in order to establish standing.
But nothing in the Court’s opinion prevents the plain­ tiffs on remand from pursuing an associational claim, or from satisfying the different standing requirement that theory would entail. The Court’s opinion is about a suit challenging a partisan gerrymander on a particular ground—that it dilutes the votes of individual citizens. That opinion “leave[s] for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.” Ante, at 16. And in particular, it leaves for another day the theory of harm advanced by JUSTICE KENNEDY in Vieth: that a partisan gerrymander interferes with the vital “ability of citizens to band together” to further their political beliefs. 541 U. S., at 314 (quoting California Democratic Party, 530 U. S., at 574). Nothing about that injury is “generalized” or “ab­

12

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KAGAN, J., concurring
stract,” as the Court says is true of the plaintiffs’ dissatis­ faction with the “overall composition of the legislature.” Ante, at 16. A suit raising an associational theory com­ plains of concrete “burdens on a disfavored party” and its members as they pursue their political interests and goals. Vieth, 541 U. S., at 315 (opinion of KENNEDY, J.); see supra, at 8–9. And when the suit alleges that a gerry­ mander has imposed those burdens on a statewide basis, then its litigation should be statewide too—as to standing, liability, and remedy alike.
III
Partisan gerrymandering jeopardizes “[t]he ordered working of our Republic, and of the democratic process.” Vieth, 541 U. S., at 316 (opinion of KENNEDY, J.). It enables a party that happens to be in power at the right time to entrench itself there for a decade or more, no matter what the voters would prefer. At its most extreme, the practice amounts to “rigging elections.” Id., at 317 (inter­ nal quotation marks omitted). It thus violates the most fundamental of all democratic principles—that “the voters should choose their representatives, not the other way around.” Arizona State Legislature, 576 U. S., at ___ (slip op., at 35) (quoting Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005)).
And the evils of gerrymandering seep into the legisla­ tive process itself. Among the amicus briefs in this case are two from bipartisan groups of congressional members and state legislators. They know that both parties gerry­ mander. And they know the consequences. The congres­ sional brief describes a “cascade of negative results” from excessive partisan gerrymandering: indifference to swing voters and their views; extreme political positioning de­ signed to placate the party’s base and fend off primary challenges; the devaluing of negotiation and compromise; and the impossibility of reaching pragmatic, bipartisan

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solutions to the nation’s problems. Brief for Bipartisan Group of Current and Former Members of Congress as Amici Curiae 4; see id., at 10–23. The state legislators tell a similar story. In their view, partisan gerrymandering has “sounded the death-knell of bipartisanship,” creating a legislative environment that is “toxic” and “tribal[ ].” Brief for Bipartisan Group of 65 Current and Former State Legislators as Amici Curiae 6, 25.
I doubt James Madison would have been surprised. What, he asked when championing the Constitution, would make the House of Representatives work? The House must be structured, he answered, to instill in its members “an habitual recollection of their dependence on the people.” The Federalist No. 57, p. 352 (C. Rossiter ed. 1961). Legislators must be “compelled to anticipate the moment” when their “exercise of [power] is to be re­ viewed.” Ibid. When that moment does not come—when legislators can entrench themselves in office despite the people’s will—the foundation of effective democratic gov­ ernance dissolves.
And our history offers little comfort. Yes, partisan gerrymandering goes back to the Republic’s earliest days; and yes, American democracy has survived. But technol­ ogy makes today’s gerrymandering altogether different from the crude linedrawing of the past. New redistricting software enables pinpoint precision in designing districts. With such tools, mapmakers can capture every last bit of partisan advantage, while still meeting traditional dis­ tricting requirements (compactness, contiguity, and the like). See Brief for Political Science Professors as Amici Curiae 28. Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides. The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record. Id., at 3. The technology will only get better, so the 2020 cycle will only get worse.

14

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Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, be­ cause we understood that “a denial of constitutionally protected rights demands judicial protection.” Reynolds, 377 U. S., at 566. Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incen­ tives conflict with voters’ interests, leaving citizens with­ out any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindi­ cate the Constitution against a contrary law.

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1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1161
_________________
BEVERLY R. GILL, ET AL., APPELLANTS v.
 WILLIAM WHITFORD, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
[June 18, 2018]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring in part and concurring in the judgment.
I join Parts I and II of the Court’s opinion because I agree that the plaintiffs have failed to prove Article III standing. I do not join Part III, which gives the plaintiffs another chance to prove their standing on remand. When a plaintiff lacks standing, our ordinary practice is to remand the case with instructions to dismiss for lack of jurisdiction. E.g., Lance v. Coffman, 549 U. S. 437, 442 (2007) (per curiam); DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354 (2006); United States v. Hays, 515 U. S. 737, 747 (1995). The Court departs from our usual practice because this is supposedly “not the usual case.” Ante, at 21. But there is nothing unusual about it. As the Court explains, the plaintiffs’ lack of standing follows from longestablished principles of law. See ante, at 13–17. After a year and a half of litigation in the District Court, including a 4-day trial, the plaintiffs had a more-than-ample opportunity to prove their standing under these principles. They failed to do so. Accordingly, I would have remanded this case with instructions to dismiss.

 
 Case: 3:15-cv-00421-jdp Document #: 201 Filed: 09/14/18 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT,

)

ROGER ANCLAM, WARREN BRAUN,

)

HANS BREITENMOSER, JUDITH BREY,

)

BRENT BRIGSON, EMILY BUNTING, SANDRA

)

CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. )

DALEY, MARGARET LESLIE DEMUTH,

)

DANIEL DIETERICH, MARY LYNNE DONOHUE, )

LEAH DUDLEY, JENNIFER ESTRADA,

)

BARBARA FLOM, HELEN HARRIS,

)

GAIL HOHENSTEIN, WAYNE JENSEN,

)

WENDY SUE JOHNSON, MICHAEL LECKER,

)

ELIZABETH LENTINI, NORAH MCCUE,

)

JANET MITCHELL, DEBORAH PATEL,

)

JANE PEDERSEN, NANCY PETULLA,

)

ROBERT PFUNDHELLER, SARA RAMAKER,

)

ROSALIE SCHNICK, ALLISON SEATON,

)

JAMES SEATON, ANN E. STEVNING-ROE,

)

LINEA SUNDSTROM, MICHAEL SWITZENBAUM, )

JEROME WALLACE, DONALD WINTER,

)

EDWARD WOHL, and ANN WOLFE,

)

No. 15-cv-421-jdp

Plaintiffs,

)

)

Three Judge Panel Requested

v.

)

28 U.S.C. 2284(a)

)

BEVERLY R. GILL, JULIE M. GLANCEY,

)

ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, )

and MARK L. THOMSEN,

)

)

Defendants.

)

______________________________________________________________________________

AMENDED COMPLAINT ______________________________________________________________________________

NOW COME Plaintiffs William Whitford, Graham Adsit, Roger Anclam, Warren Braun,

Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson-Kaye, Guy

Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue,

Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen,

Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah 1

Case: 3:15-cv-00421-jdp Document #: 201 Filed: 09/14/18 Page 2 of 55
Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning-Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, Donald Winter, Edward Wohl, and Ann Wolfe, by their undersigned attorneys, and complain of Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, and Mark L. Thomsen, not personally, but solely in their official capacities as members of the Wisconsin Elections Commission, as follows:
INTRODUCTION 1. Plaintiffs seek both a declaratory judgment that the Wisconsin State Assembly district plan adopted in 2011 (Act 43, or the “Current Plan”) violates the First and Fourteenth Amendments of the United States Constitution and an order permanently enjoining the implementation of the Current Plan in the 2020 election. As explained in greater detail below, the Current Plan is, by any measure, one of the worst partisan gerrymanders in modern American history. In the first election in which it was in force (2012), the Current Plan enabled Republican candidates to win sixty of the Assembly’s ninety-nine seats even though Democratic candidates won a majority of the statewide Assembly vote. The evidence is overwhelming that the Current Plan was adopted to achieve precisely that result: indeed, before submitting the map for approval, the Republican leadership retained an expert (at State expense) who predicted the partisan performance of each proposed district—as it turned out, with remarkable accuracy. 2. This kind of partisan gerrymandering is both unconstitutional and profoundly undemocratic. It is unconstitutional because it treats voters unequally, diluting their voting power based on their political beliefs, in violation of the Fourteenth Amendment’s guarantee of equal protection, and because it unreasonably burdens their First Amendment rights of association and free speech. Extreme partisan gerrymandering is also contrary to core democratic values because
2

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it enables a political party to win more legislative districts—and thus more legislative power— than is warranted by that party’s popular support. By distorting the relationship between votes and assembly seats, it causes policies to be enacted that do not accurately reflect the public will. In the end, a political minority is able to rule the majority and to entrench itself in power by periodically manipulating election boundaries.
3. Partisan gerrymandering has increased throughout the United States in recent years as a result of both a rising tide of partisanship and greater technological sophistication, which enables maps to be drawn in ways that are likely to enable the party in power to remain in power even if it no longer represents the views of the majority of voters. This nationwide trend threatens a “‘core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2677 (2015).
4. The United States Supreme Court has recognized that partisan gerrymandering can be unconstitutional. Nevertheless, a constitutional challenge has yet to succeed on that ground because plaintiffs have been unable to offer a workable standard to distinguish between permissible political line-drawing and unconstitutional partisan gerrymandering. In this case, plaintiffs propose a new test that is workable, based on the concept of partisan symmetry—the idea that a district plan should treat the major parties symmetrically with respect to the conversion of votes to seats and that neither party should have a systematic advantage in how efficiently its popular support translates into legislative power. Plaintiffs also propose a distinct, workable test based not on vote dilution but rather on the First Amendment associational injuries suffered by voters, candidates, representatives, and other supporters of the victimized party.
3

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5. One way to measure a district plan’s performance in terms of partisan symmetry is to determine whether there is an “efficiency gap” between the performances of the two major parties and, if so, to compare the magnitude of that gap to comparable district plans in the modern era nationwide. The efficiency gap captures in a single number all of a district plan’s cracking and packing—the two fundamental ways in which partisan gerrymanders are constructed. Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins. Both cracking and packing result in “wasted” votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needed to prevail (in the case of packing). The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.
6. When the efficiency gap is relatively small and roughly equivalent to the efficiency gaps that have traditionally existed, the map should not be deemed unconstitutional. In such cases, there may be no intent to treat voters unequally; in any event, the effects of any gerrymandering are likely to be redressable through the political process. But where the efficiency gap is large and much greater than the historical norm, there should be a presumption of unconstitutionality. In such a case, an intent to systematically disadvantage voters based on their political beliefs can be inferred from the severity of the gerrymander alone. And because such severe gerrymanders are likely to be extremely durable as well, it is unlikely that the disadvantaged party’s adherents will be able to protect themselves through the political process. Where partisan gerrymandering is extreme, the process itself is broken: current legislators have
4

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no incentive to alter it, and adherents of the disadvantaged party are unable to do so because their votes have been unfairly diluted.
7. Wisconsin’s Current Plan is presumptively unconstitutional under this analysis. In the 2012 election, the Current Plan resulted in an efficiency gap of roughly 13% in favor of Republican candidates. Between 1972 and 2014, fewer than four percent of all state house plans in the country benefited a party to that extent. In the 2014 election, the efficiency gap remained extremely high at 10%. Between 1972 and 2010, not a single plan anywhere in the United States had an efficiency gap as high as the Current Plan in the first two elections after redistricting. A district plan this lopsided is also highly unlikely ever to become neutral over its ten-year lifespan. Indeed, we can predict with nearly 100% confidence that, absent this Court’s intervention, Wisconsin’s Current Plan will continue to unfairly favor Republican voters and candidates—and unfairly disadvantage Democratic voters and candidates—throughout the remainder of the decade.
8. There are three additional facts that reinforce the conclusion that the Current Plan is unconstitutional. First, the Current Plan was not the result of an ordinary political process, where a bill is formulated through a give-and-take between political adversaries and subject to open debate. Instead, it was drawn up in secret by the Legislature’s Republican leadership, without consultation with Democratic leaders or rank-and-file members of either party, with the purpose and intent of altering what was already a favorable map to maximize the Republican Party’s partisan advantage. Then the proposal was rammed through the Assembly, without any opportunity for real debate.
9. Second, the Current Plan is also an outlier by another measure of partisan symmetry—partisan bias. Partisan bias is the difference in the share of seats that each party
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would win if they tied statewide, each receiving 50% of the vote. In 2012, there was a 13% bias in favor of Republicans; in a tied election, Republicans would have won 63% of the Assembly seats, with Democrats winning only 37%. In 2014, there was a 12% bias in favor of Republicans.
10. Third, the Current Plan’s extreme partisan skew was entirely unnecessary. Plaintiffs have designed a Demonstration Plan that complies at least as well as the Current Plan with every legal requirement—equal population, the Voting Rights Act, compactness, and respect for political subdivisions—but that is almost perfectly balanced in its partisan consequences. Thus, defendants cannot salvage the Current Plan on the theory that adherence to redistricting criteria or the State’s underlying political geography made an unfair plan unavoidable.
11. The Current Plan is also unlawful under plaintiffs’ separate proposed test based on the First Amendment associational injuries they have suffered. Due to the Plan, plaintiffs and other supporters of the Democratic Party in Wisconsin have experienced severe “difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives).” Gill v. Whitford, 138 S. Ct. 1916, 1938 (2018) (Kagan, J., concurring). These harms are onerous enough to trigger strict scrutiny for the Plan, which it cannot survive. The Plan’s pursuit of partisan advantage is not a compelling—or even a legitimate—governmental interest. And the Plan’s nonpartisan goals can all be met by a map that treats the major parties fairly, meaning that the Plan is not narrowly tailored to achieve these aims.
12. To be clear, plaintiffs do not seek to replace a pro-Republican gerrymander with a plan that is gerrymandered to be pro-Democratic. Rather, plaintiffs seek as a remedy the creation of a neutral plan that is not gerrymandered to give either side an unfair partisan advantage.
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JURISDICTION AND VENUE 13. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 2284. It also has jurisdiction under 28 U.S.C. §§ 2201 and 2202, the Declaratory Judgments Act, to grant the declaratory relief requested. 14. Pursuant to 28 U.S.C. § 2284(a), a three-judge panel should be convened to hear this case. 15. Venue is proper in this judicial district under 28 U.S.C. § 1391(b). At least one of the defendants resides in the Western District of Wisconsin. In addition, at least 21 of the plaintiffs reside and vote in this judicial district.
PARTIES 16. The 40 plaintiffs are qualified, registered voters in Wisconsin who reside in various Assembly districts and who support the election of Democratic candidates and the implementation of Democratic policies. As explained in detail below, 33 of these plaintiffs’ votes have been unlawfully diluted by the Current Plan. These plaintiffs each live in districts that were cracked or packed by the Plan, but that did not have to be cracked or packed, as demonstrated by an alternative map generated by a computer algorithm without consideration of partisan data. For each of these plaintiffs, “the particular composition of the voter’s own district” thus “causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district.” Whitford, 138 S. Ct. at 1931. 17. In addition to having had their votes unlawfully diluted, the plaintiffs have suffered a range of associational harms as a result of the Current Plan’s adoption. They have been deterred from, and hindered in, turning out to vote, registering voters, volunteering for campaigns, donating money to candidates, running for office, appealing to independents, and advocating and implementing their preferred policies. Because the Plan has “ravaged the party
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[they] work[] to support,” it “has burdened the[ir] ability . . . to affiliate in a political party and carry out that organization’s activities and objects.” Id. at 1938-39 (Kagan, J., concurring).
18. Plaintiff Sara Ramaker lives at 2545 Oakwood Avenue, Green Bay, WI 54301, which is located in the ward Allouez – V4 in Brown County.1 Plaintiff Ramaker is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Ramaker’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
19. Plaintiff Ramaker’s home is in District 4 of the Current Plan. District 4 is located southwest of Green Bay and avoids that city’s concentration of Democratic voters. To create District 4, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Ramaker. According to the drafters’ partisan composite, District 4 was expected to have a Republican vote share of 54%.2 The drafters also labeled District 4 as a “GOP seat” that was “strengthened.” As the drafters predicted, the Republican candidate prevailed in District 4 in the 2012, 2014, and 2016 elections.
20. The Current Plan’s cracking of Democratic voters such as Plaintiff Ramaker was unnecessary. Plaintiffs’ expert used a computer algorithm to generate an alternative Assembly map (the “computer-generated map”) that beats the Current Plan on every one of its nonpartisan objectives but that treats the major parties almost perfectly symmetrically. Specifically, this map has more equally populated districts than the Current Plan, has the same number of blackmajority and Latino-majority districts, splits fewer counties and municipalities, has more
1 The ward listing for each plaintiff refers to the wards created with the Current Plan in 2011. 2 All references to the drafters’ partisan composite are based on plaintiffs’ recalculation of the composite using more accurate data.
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compact districts on average, and pairs fewer incumbents—but has an efficiency gap of exactly zero. In this map, Plaintiff Ramaker’s home is in a district that includes part of Green Bay and that has a Democratic vote share of 50.2% according to the drafters’ partisan composite. Plaintiff Ramaker thus could have been placed in a Democratic district rather than cracked into a Republican district.
21. Plaintiff Linea Sundstrom lives at 1320 E. Lake Bluff Boulevard, Shorewood, WI 53211, which is located in the ward Shorewood – V12 in Milwaukee County. Plaintiff Sundstrom is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Sundstrom’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
22. Plaintiff Sundstrom’s home is in District 10 of the Current Plan. District 10 is located mostly in Milwaukee and contains many of that city’s Democratic voters. To create District 10, the Plan’s drafters intentionally packed Democratic voters such as Plaintiff Sundstrom. According to the drafters’ partisan composite, District 10 was expected to have a Democratic vote share of 86%. As the drafters predicted, the Democratic candidate prevailed in District 10 without even being challenged in the 2012, 2014, and 2016 elections.
23. The Current Plan’s packing of Democratic voters such as Plaintiff Sundstrom was unnecessary. In the computer-generated map, Plaintiff Sundstrom’s home is in a district that includes parts of both Milwaukee and its northern suburbs, and that has a Democratic vote share of 63% according to the drafters’ partisan composite. Plaintiff Sundstrom thus could have been placed in a less packed, more competitive Democratic district.
24. Plaintiff Warren Braun lives at 8220 Harwood Avenue, Apt. 341, Wauwatosa, WI 53213, which is located in the ward Wauwatosa – C5 in Milwaukee County. Plaintiff Braun is a
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qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Braun’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
25. Plaintiff Braun’s home is in District 13 of the Current Plan. District 13 is located west of the city of Milwaukee, extending from (more Democratic) Milwaukee County into (more Republican) Waukesha County. To create District 13, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Braun. According to the drafters’ partisan composite, District 13 was expected to have a Republican vote share of 60%. The drafters also labeled District 13 as a “Statistical Pick Up.” As the drafters predicted, the Republican candidate prevailed in District 13 in the 2012, 2014, and 2016 elections.
26. The Current Plan’s cracking of Democratic voters such as Plaintiff Braun was unnecessary. In the computer-generated map, Plaintiff Braun’s home is in a district that stays within Milwaukee County and that has a Democratic vote share of 60% according to the drafters’ partisan composite. Plaintiff Braun thus could have been placed in a Democratic district rather than cracked into a Republican district.
27. Plaintiff Sandra Carlson-Kaye lives at 511 N. 33rd Street, Milwaukee, WI 53208, which is located in the ward Milwaukee – C197 in Milwaukee County. Plaintiff Carlson-Kaye is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Carlson-Kaye’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
28. Plaintiff Carlson-Kaye’s home is in District 18 of the Current Plan. District 18 is located in Milwaukee and contains many of that city’s Democratic voters. To create District 18, the Plan’s drafters intentionally packed Democratic voters such as Plaintiff Carlson-Kaye.
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According to the drafters’ partisan composite, District 18 was expected to have a Democratic vote share of 83%. As the drafters predicted, the Democratic candidate prevailed in District 18 without even being challenged in the 2012, 2014, and 2016 elections.
29. The Current Plan’s packing of Democratic voters such as Plaintiff Carlson-Kaye was unnecessary. In the computer-generated map, Plaintiff Carlson-Kaye’s home is in a district that includes parts of both Milwaukee and its southwestern suburbs, and that has a Democratic vote share of 60% according to the drafters’ partisan composite. Plaintiff Carlson-Kaye thus could have been placed in a less packed, more competitive Democratic district.
30. Plaintiff Guy Costello lives at 1320 Manitowoc Avenue, South Milwaukee, WI 53172, which is located in the ward Milwaukee – C12 in Milwaukee County. Plaintiff Costello is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Costello’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
31. Plaintiff Costello’s home is in District 21 of the Current Plan. District 21 is located south of Milwaukee and avoids that city’s concentration of Democratic voters. To create District 21, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Costello. According to the drafters’ partisan composite, District 21 was expected to have a Republican vote share of 53%. The drafters also labeled District 21 as a “GOP seat” that was “strengthened a lot.” As the drafters predicted, the Republican candidate prevailed in District 21 in the 2012, 2014, and 2016 elections.
32. The Current Plan’s cracking of Democratic voters such as Plaintiff Costello was unnecessary. In the computer-generated map, Plaintiff Costello’s home is in a district that includes Milwaukee’s southern suburbs and that has a Democratic vote share of 52% according
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to the drafters’ partisan composite. Plaintiff Costello thus could have been placed in a Democratic district rather than cracked into a Republican district.
33. Plaintiff Helen Harris lives at 6761 N. 109th Street, Milwaukee, WI 53224, which is located in the ward Milwaukee – C33 in Milwaukee County. Plaintiff Harris is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Harris’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
34. Plaintiff Harris’s home is in District 22 of the Current Plan. District 22 is located northwest of the city of Milwaukee, extending from (more Democratic) Milwaukee County into (more Republican) Waukesha and Washington Counties. To create District 22, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Harris. According to the drafters’ partisan composite, District 22 was expected to have a Republican vote share of 66%. The drafters also labeled District 22 as a “Statistical Pick Up.” As the drafters predicted, the Republican candidate prevailed in District 22 in the 2012, 2014, and 2016 elections.
35. The Current Plan’s cracking of Democratic voters such as Plaintiff Harris was unnecessary. In the computer-generated map, Plaintiff Harris’s home is in a district that stays within Milwaukee County and that has a Democratic vote share of 70% according to the drafters’ partisan composite. Plaintiff Harris thus could have been placed in a Democratic district rather than cracked into a Republican district.
36. Plaintiff Elizabeth Lentini lives at 5525 N. Hollywood Avenue, Whitefish Bay, WI 53217, which is located in the ward Whitefish Bay – V4 in Milwaukee County. Plaintiff Michael Switzenbaum lives at 4907 N. Idlewild Avenue, Whitefish Bay, WI 53217, which is located in the ward Whitefish Bay – V9 in Milwaukee County. Plaintiff Jerome Wallace lives at
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500 W. Bradley Road, Apt. B302, Fox Point, WI 53217, which is located in the ward Fox Point – V8 in Milwaukee County. Plaintiffs Lentini, Switzenbaum, and Wallace are qualified, registered voters in the State of Wisconsin and supporters of Democratic candidates and policies. Plaintiff Lentini’s, Plaintiff Switzenbaum’s and Plaintiff Wallace’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
37. Plaintiff Lentini’s, Plaintiff Switzenbaum’s, and Plaintiff Wallace’s homes are in District 23 of the Current Plan. District 23 is located north of the city of Milwaukee, extending from (more Democratic) Milwaukee County into (more Republican) Ozaukee County. To create District 23, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiffs Lentini, Switzenbaum, and Wallace. According to the drafters’ partisan composite, District 23 was expected to have a Republican vote share of 57%. The drafters also labeled District 23 as a “GOP seat” that was “strengthened a lot.” As the drafters predicted, the Republican candidate prevailed in District 23 in the 2012, 2014, and 2016 elections.
38. The Current Plan’s cracking of Democratic voters such as Plaintiffs Lentini, Switzenbaum, and Wallace was unnecessary. In the computer-generated map, Plaintiff Lentini’s, Plaintiff Switzenbaum’s and Plaintiff Wallace’s homes are in a district that stays within Milwaukee County and that has a Democratic vote share of 63% according to the drafters’ partisan composite. Plaintiffs Lentini, Switzenbaum, and Wallace thus could have been placed in a Democratic district rather than cracked into a Republican district.
39. Plaintiff Deborah Patel lives at 9130 N. Spruce Road, Milwaukee, WI 53217, which is located in the ward River Hills – V3 in Milwaukee County. Plaintiff Patel is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies.
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Plaintiff Patel’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
40. Plaintiff Patel’s home is in District 24 of the Current Plan. District 24 is located northwest of the city of Milwaukee, extending from (more Democratic) Milwaukee County into (more Republican) Ozaukee and Washington Counties. To create District 24, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Patel. According to the drafters’ partisan composite, District 24 was expected to have a Republican vote share of 58%. As the drafters predicted, the Republican candidate prevailed in District 24 in the 2012, 2014, and 2016 elections.
41. The Current Plan’s cracking of Democratic voters such as Plaintiff Patel was unnecessary. In the computer-generated map, Plaintiff Patel’s home is in a district that stays within Milwaukee County and that has a Democratic vote share of 75% according to the drafters’ partisan composite. Plaintiff Patel thus could have been placed in a Democratic district rather than cracked into a Republican district.
42. Plaintiff Jennifer Estrada lives at 919 537th Street, Manitowoc, WI 54220, which is located in ward Manitowoc – C10 in Manitowoc County. Plaintiff Estrada is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Estrada’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
43. Plaintiff Estrada’s home is in District 25 of the Current Plan. District 25 is located in Calumet and Manitowoc Counties, and splits the adjacent concentrations of Democratic voters in Manitowoc and Two Rivers. To create District 25, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Estrada. According to the drafters’ partisan composite,
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District 25 was expected to have a Republican vote share of 53%. The drafters also labeled District 25 as a “GOP seat” that was “strengthened.” As the drafters predicted, the Republican candidate prevailed in District 25 in the 2012, 2014, and 2016 elections.
44. The Current Plan’s cracking of Democratic voters such as Plaintiff Estrada was unnecessary. In the computer-generated map, Plaintiff Estrada’s home is in a district that includes both Manitowoc and Two Rivers, and that has a Democratic vote share of 50.1% according to the drafters’ partisan composite. Plaintiff Estrada thus could have been placed in a Democratic district rather than cracked into a Republican district.
45. Plaintiff Mary Lynne Donohue lives at 418 Saint Clair Avenue, Sheboygan, WI 53081, which is located in the ward Sheboygan – C13 in Sheboygan County. Plaintiff Donohue is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Donohue’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
46. Plaintiff Donohue’s home is in District 26 of the Current Plan. District 26 splits the concentration of Democratic voters in Sheboygan. To create District 26, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Donohue. According to the drafters’ partisan composite, District 26 was expected to have a Republican vote share of 56%. The drafters also labeled District 26 as a “GOP seat” that was “strengthened a lot.” As the drafters predicted, the Republican candidate prevailed in District 26 in the 2012, 2014, and 2016 elections.
47. The Current Plan’s cracking of Democratic voters such as Plaintiff Donohue was unnecessary. In the computer-generated map, Plaintiff Donohue’s home is in a district that keeps Sheboygan intact and that has a Democratic vote share of 51% according to the drafters’ partisan
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composite. Plaintiff Donohue thus could have been placed in a Democratic district rather than cracked into a Republican district.
48. Plaintiff Barbara Flom lives at N7198 190th Street, Knapp, WI 54749, which is located in the ward Lucas – T1 in Dunn County. Plaintiff Flom is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Flom’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
49. Plaintiff Flom’s home is in District 29 of the Current Plan. District 29 splits the concentration of Democratic voters in Dunn County. To create District 29, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Flom. According to the drafters’ partisan composite, District 29 was expected to have a Republican vote share of 51%. As the drafters predicted, the Republican candidate prevailed in District 29 in the 2012, 2014, and 2016 elections.
50. The Current Plan’s cracking of Democratic voters such as Plaintiff Flom was unnecessary. In the computer-generated map, Plaintiff Flom’s home is in a district that includes the Democratic areas of Dunn County and that has a Democratic vote share of 50.2% according to the drafters’ partisan composite. Plaintiff Flom thus could have been placed in a Democratic district rather than cracked into a Republican district.
51. Plaintiff Roger Anclam lives at 7928 S. Butterfly Road, Beloit, WI 53511, which is located in ward Turtle – T2 in Rock County. Plaintiff Anclam is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Anclam’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
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52. Plaintiff Anclam’s home is in District 31 of the Current Plan. District 31 splits the concentration of Democratic voters in Beloit and avoids the Democratic cluster in Janesville. To create District 31, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Anclam. According to the drafters’ partisan composite, District 31 was expected to have a Republican vote share of 56%. As the drafters predicted, the Republican candidate prevailed in District 31 in the 2012, 2014, and 2016 elections.
53. The Current Plan’s cracking of Democratic voters such as Plaintiff Anclam was unnecessary. In the computer-generated map, Plaintiff Anclam’s home is in a district that keeps Beloit intact and that has a Democratic vote share of 57% according to the drafters’ partisan composite. Plaintiff Anclam thus could have been placed in a Democratic district rather than cracked into a Republican district.
54. Plaintiff Hans Breitenmoser lives at W6982 Joe Snow Road, Merrill, WI 54452, which is located in ward Scott – T2 in Lincoln County. Plaintiff Breitenmoser is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Breitenmoser’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
55. Plaintiff Breitenmoser’s home is in District 35 of the Current Plan. District 35 avoids the concentrations of Democratic voters in the Menominee Reservation and Rhinelander. To create District 35, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Breitenmoser. According to the drafters’ partisan composite, District 35 was expected to have a Republican vote share of 52%. The drafters also labeled District 35 as a “GOP seat” that was “strengthened.” As the drafters predicted, the Republican candidate prevailed in District 35 in the 2012, 2014, and 2016 elections.
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56. The Current Plan’s cracking of Democratic voters such as Plaintiff Breitenmoser was unnecessary. In the computer-generated map, Plaintiff Breitenmoser’s home is in a district that includes Rhinelander and that has a Democratic vote share of 50.4% according to the drafters’ partisan composite. Plaintiff Breitenmoser thus could have been placed in a Democratic district rather than cracked into a Republican district.
57. Plaintiff Graham Adsit lives at 314 Spring Street, Cambridge, WI 53523, which is located in ward Cambridge – V3 in Dane County. Plaintiff Adsit is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Adsit’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
58. Plaintiff Adsit’s home is in District 38 of the Current Plan. District 38 is located east of Madison, extending from (more Democratic) Dane County into (more Republican) Jefferson and Waukesha Counties. To create District 38, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Adsit. According to the drafters’ partisan composite, District 38 was expected to have a Republican vote share of 60%. As the drafters predicted, the Republican candidate prevailed in District 38 in the 2012, 2014, and 2016 elections.
59. The Current Plan’s cracking of Democratic voters such as Plaintiff Adsit was unnecessary. In the computer-generated map, Plaintiff Adsit’s home is in a district that stays within Dane and Jefferson Counties and that has a Democratic vote share of 55% according to the drafters’ partisan composite. Plaintiff Adsit thus could have been placed in a Democratic district rather than cracked into a Republican district.
60. Plaintiffs James and Allison Seaton live at W11435 Bay Drive, Lodi, WI 53555, which is located in ward Lodi – T3 in Columbia County. Plaintiffs James and Allison Seaton are
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qualified, registered voters in the State of Wisconsin and supporters of Democratic candidates and policies. Plaintiffs James and Allison Seaton’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
61. Plaintiffs James and Allison Seaton’s home is in District 42 of the Current Plan. District 42 is located north of Madison and avoids that city’s concentration of Democratic voters as well as the smaller Democratic cluster in Portage. To create District 42, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiffs James and Allison Seaton. According to the drafters’ partisan composite, District 42 was expected to have a Republican vote share of 55%. The drafters also labeled District 42 as a “GOP seat” that was “strengthened a lot.” As the drafters predicted, the Republican candidate prevailed in District 42 in the 2012, 2014, and 2016 elections.
62. The Current Plan’s cracking of Democratic voters such as Plaintiffs James and Allison Seaton was unnecessary. In the computer-generated map, Plaintiffs James and Allison Seaton’s home is in a district that comes closer to Madison and includes Portage, and that has a Democratic vote share of 51% according to the drafters’ partisan composite. Plaintiffs James and Allison Seaton thus could have been placed in a Democratic district rather than cracked into a Republican district.
63. Plaintiff Judith Brey lives at 2101 Winfield Drive, Reedsburg, WI 53959, which is located in ward Reedsburg – C7 in Sauk County. Plaintiff Brey is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Brey’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
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64. Plaintiff Brey’s home is in District 50 of the Current Plan. District 50 is located northwest of Madison and avoids the clusters of Democratic voters in Adams County and Wisconsin Dells. To create District 50, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Brey. According to the drafters’ partisan composite, District 50 was expected to have a Republican vote share of 52%. As the drafters predicted, the Republican candidate prevailed in District 50 in the 2012, 2014, and 2016 elections.
65. The Current Plan’s cracking of Democratic voters such as Plaintiff Brey was unnecessary. In the computer-generated map, Plaintiff Brey’s home is in a district that includes both Adams County and Wisconsin Dells, and that has a Democratic vote share of 52% according to the drafters’ partisan composite. Plaintiff Brey thus could have been placed in a Democratic district rather than cracked into a Republican district.
66. Plaintiff Michael Lecker lives at 401 E. Broadway Drive, Appleton, WI 54913, which is located in ward Grand Chute – T16 in Outagamie County. Plaintiff Lecker is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Lecker’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
67. Plaintiff Lecker’s home is in District 56 of the Current Plan. District 56 is located northwest of Lake Winnebago and avoids the concentration of Democratic voters in Appleton. To create District 56, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Lecker. According to the drafters’ partisan composite, District 56 was expected to have a Republican vote share of 58%. As the drafters predicted, the Republican candidate prevailed in District 56 in the 2012, 2014, and 2016 elections.
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68. The Current Plan’s cracking of Democratic voters such as Plaintiff Lecker was unnecessary. In the computer-generated map, Plaintiff Lecker’s home is in a district that includes Appleton, and that has a Democratic vote share of 50.3% according to the drafters’ partisan composite. Plaintiff Lecker thus could have been placed in a Democratic district rather than cracked into a Republican district.
69. Plaintiff Norah McCue lives at 1112 Russet Street, Racine, WI 53405, which is located in ward Racine – C27 in Racine County. Plaintiff McCue is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff McCue’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
70. Plaintiff McCue’s home is in District 62 of the Current Plan. District 62 splits the concentration of Democratic voters in Racine and then extends westward. To create District 62, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff McCue. According to the drafters’ partisan composite, District 62 was expected to have a Republican vote share of 56%. The drafters also labeled District 62 as a “Statistical Pick Up.” As the drafters predicted, the Republican candidate prevailed in District 62 in the 2012, 2014, and 2016 elections.
71. The Current Plan’s cracking of Democratic voters such as Plaintiff McCue was unnecessary. In the computer-generated map, Plaintiff 62’s home is in a district that includes most of Racine and that has a Democratic vote share of 56% according to the drafters’ partisan composite. Plaintiff McCue thus could have been placed in a Democratic district rather than cracked into a Republican district.
72. Plaintiff Timothy B. Daley lives at 1202 Vine Street, Union Grove, WI 53182, which is located in ward Union Grove – V4 in Racine County. Plaintiff Daley is a qualified,
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registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Daley’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
73. Plaintiff Daley’s home is in District 63 of the Current Plan. District 63 avoids the concentration of Democratic voters in Racine and then extends westward. To create District 63, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Daley. According to the drafters’ partisan composite, District 63 was expected to have a Republican vote share of 58%. As the drafters predicted, the Republican candidate prevailed in District 63 in the 2012, 2014, and 2016 elections.
74. The Current Plan’s cracking of Democratic voters such as Plaintiff Daley was unnecessary. In the computer-generated map, Plaintiff Daley’s home is in a district that includes some of Racine and that has a Democratic vote share of 54% according to the drafters’ partisan composite. Plaintiff Daley thus could have been placed in a Democratic district rather than cracked into a Republican district.
75. Plaintiff Janet Mitchell lives at 2411 Mount Pleasant Street, Racine, WI 53404, which is located in ward Racine – C15 in Racine County. Plaintiff Mitchell is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Mitchell’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
76. Plaintiff Mitchell’s home is in District 66 of the Current Plan. District 66 is located in Racine and contains most of that city’s Democratic voters. To create District 66, the Plan’s drafters intentionally packed Democratic voters such as Plaintiff Mitchell. According to the drafters’ partisan composite, District 66 was expected to have a Democratic vote share of
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67%. As the drafters predicted, the Democratic candidate prevailed in District 66 without even being challenged in the 2012, 2014, and 2016 elections.
77. The Current Plan’s packing of Democratic voters such as Plaintiff Mitchell was unnecessary. In the computer-generated map, Plaintiff Mitchell’s home is in a district that includes parts of both Racine and areas to the city’s west, and that has a Democratic vote share of 54% according to the drafters’ partisan composite. Plaintiff Mitchell thus could have been placed in a less packed, more competitive Democratic district.
78. Plaintiff Jane Pedersen lives at N7527 537th Street, Menomonie, WI 54751, which is located in the ward Red Cedar – T1 in Dunn County. Plaintiff Pedersen is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Pedersen’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
79. Plaintiff Pedersen’s home is in District 67 of the Current Plan. District 67 avoids the concentration of Democratic voters in Pierce County and splits the adjacent Democratic clusters in Eau Claire and Chippewa Falls. To create District 67, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Pedersen. According to the drafters’ partisan composite, District 67 was expected to have a Republican vote share of 51%. As the drafters predicted, the Republican candidate prevailed in District 67 in the 2012, 2014, and 2016 elections.
80. The Current Plan’s cracking of Democratic voters such as Plaintiff Pedersen was unnecessary. In the computer-generated map, Plaintiff Pedersen’s home is in a district that includes Pierce County and that has a Democratic vote share of 51% according to the drafters’
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partisan composite. Plaintiff Pedersen thus could have been placed in a Democratic district rather than cracked into a Republican district.
81. Plaintiff Daniel Dieterich lives at 1490 Evergreen Drive, Stevens Point, WI 54482, which is located in ward Hull – T3 in Portage County. Plaintiff Dieterich is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Dieterich’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
82. Plaintiff Dieterich’s home is in District 70 of the Current Plan. District 70 is located partly in Jackson County but avoids most of that county’s Democratic voters as well as most of the Democratic concentration in Stevens Point. To create District 70, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Dieterich. According to the drafters’ partisan composite, District 70 was expected to have a Republican vote share of 50.4%. The drafters also labeled District 70 as a “Currently held DEM seat” that was “weakened.” As the drafters predicted, the Republican candidate prevailed in District 70 in the 2014 and 2016 elections.
83. The Current Plan’s cracking of Democratic voters such as Plaintiff Dieterich was unnecessary. In the computer-generated map, Plaintiff Dieterich’s home is in a district that includes Stevens Point and that has a Democratic vote share of 58% according to the drafters’ partisan composite. Plaintiff Dieterich thus could have been placed in a Democratic district rather than cracked into a Republican district.
84. Plaintiff Leah Dudley lives at 2917 Wimbledon Way, Madison, WI 53713, which is located in ward Madison – C75 in Dane County. Plaintiff Dudley is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff
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Dudley’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
85. Plaintiff Dudley’s home is in District 77 of the Current Plan. District 77 is located in Madison and contains many of that city’s Democratic voters. To create District 77, the Plan’s drafters intentionally packed Democratic voters such as Plaintiff Dudley. According to the drafters’ partisan composite, District 77 was expected to have a Democratic vote share of 79%. The drafters also labeled District 33 as one featuring a “pairing” of “dem” and “dem” incumbents. As the drafters predicted, the Democratic candidate prevailed in District 77 without even being challenged in the 2012, 2014, and 2016 elections.
86. The Current Plan’s packing of Democratic voters such as Plaintiff Dudley was unnecessary. In the computer-generated map, Plaintiff Dudley’s home is in a district that includes parts of both Madison and the city’s southern and eastern suburbs, and that has a Democratic vote share of 64% according to the drafters’ partisan composite. Plaintiff Dudley thus could have been placed in a less packed, more competitive Democratic district.
87. Plaintiffs Ann Wolfe and Edward Wohl live at 6154 Brotherhood Lane, Ridgeway, WI 53582, which is located in ward Ridgeway – T2 in Iowa County. Plaintiffs Wolfe and Wohl are qualified, registered voters in the State of Wisconsin and supporters of Democratic candidates and policies. Plaintiff Wolfe’s and Wohl’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
88. Plaintiffs Wolfe’s and Wohl’s home is in District 80 of the Current Plan. District 80 is located southwest of Madison and contains most of that region’s Democratic voters. To create District 80, the Plan’s drafters intentionally packed Democratic voters such as Plaintiffs Wolfe and Wohl. According to the drafters’ partisan composite, District 80 was expected to have
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a Democratic vote share of 61%. As the drafters predicted, the Democratic candidate prevailed in District 80 by enormous margins (or was not even challenged) in the 2012, 2014, and 2016 elections.
89. The Current Plan’s packing of Democratic voters such as Plaintiffs Wolfe and Wohl was unnecessary. In the computer-generated map, Plaintiffs Wolfe’s and Wohl’s home is in a district that is centered further to the west of Madison, and that has a Democratic vote share of 55% according to the drafters’ partisan composite. Plaintiffs Wolfe and Wohl thus could have been placed in a less packed, more competitive Democratic district.
90. Plaintiff Nancy Petulla lives at 10185 S. County Road K, Merrill, WI 54452, which is located in ward Maine – T1 in Marathon County. Plaintiff Petulla is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Petulla’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
91. Plaintiff Petulla’s home is in District 86 of the Current Plan. District 86 is centered in Marathon County but avoids the concentration of Democratic voters in Wausau. To create District 86, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Petulla. According to the drafters’ partisan composite, District 86 was expected to have a Republican vote share of 54%. The drafters also labeled District 86 as a “GOP seat” that was “strengthened.” As the drafters predicted, the Republican candidate prevailed in District 86 in the 2012, 2014, and 2016 elections.
92. The Current Plan’s cracking of Democratic voters such as Plaintiff Petulla was unnecessary. In the computer-generated map, Plaintiff Petulla’s home is in a district that includes Wausau and that has a Democratic vote share of 50.02% according to the drafters’ partisan
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composite. Plaintiff Petulla thus could have been placed in a Democratic district rather than cracked into a Republican district.
93. Plaintiff Gail Hohenstein lives at 1823 Beethoven Drive, Green Bay, WI 54311, which is located in ward Green Bay – C4 in Brown County. Plaintiff Hohenstein is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Hohenstein’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
94. Plaintiff Hohenstein’s home is in District 88 of the Current Plan. District 88 is located mostly southeast of Green Bay and avoids that city’s concentration of Democratic voters. To create District 88, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Hohenstein. According to the drafters’ partisan composite, District 88 was expected to have a Republican vote share of 53%. The drafters also labeled District 88 as a “GOP seat” that was “strengthened a lot.” As the drafters predicted, the Republican candidate prevailed in District 88 in the 2012, 2014, and 2016 elections.
95. The Current Plan’s cracking of Democratic voters such as Plaintiff Hohenstein was unnecessary. In the computer-generated map, Plaintiff Hohenstein’s home is in a district that includes part of Green Bay and that has a Democratic vote share of 52% according to the drafters’ partisan composite. Plaintiff Hohenstein thus could have been placed in a Democratic district rather than cracked into a Republican district.
96. Plaintiff Robert Pfundheller lives at 1115 Sweetwater Close, Altoona, WI 54720, which is located in ward Washington – T9 in Eau Claire County. Plaintiff Pfundheller is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates
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and policies. Plaintiff Pfundheller’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
97. Plaintiff Pfundheller’s home is in District 93 of the Current Plan. District 93 traverses several counties in western Wisconsin and avoids most of the Democratic voters in Altoona and River Falls. To create District 93, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Pfundheller. According to the drafters’ partisan composite, District 93 was expected to have a Republican vote share of 51%. The drafters also labeled District 93 as a “GOP seat” that was “strengthened a lot.” As the drafters predicted, the Republican candidate prevailed in District 93 in the 2012, 2014, and 2016 elections.
98. The Current Plan’s cracking of Democratic voters such as Plaintiff Pfundheller was unnecessary. In the computer-generated map, Plaintiff Pfundheller’s home is in a district that spans fewer counties and includes Altoona, and that has a Democratic vote share of 54% according to the drafters’ partisan composite. Plaintiff Pfundheller thus could have been placed in a Democratic district rather than cracked into a Republican district.
99. Plaintiff Brent Brigson lives at W3831 Southern Drive, West Salem, WI 54669, which is located in ward Hamilton – T3 in La Crosse County. Plaintiff Brigson is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Brigson’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
100. Plaintiff Brigson’s home is in District 94 of the Current Plan. District 94 is located in La Crosse County but avoids the concentration of Democratic voters in the city of La Crosse. To create District 94, the Plan’s drafters intentionally cracked Democratic voters such as Plaintiff Brigson. According to the drafters’ partisan composite, District 94 was expected to have
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a Republican vote share of 52%. The drafters also labeled District 94 as a “Currently held DEM seat” that was “weakened.”
101. The Current Plan’s cracking of Democratic voters such as Plaintiff 94 was unnecessary. In the computer-generated map, Plaintiff Brigson’s home is in a district that includes part of the city of La Crosse and that has a Democratic vote share of 55% according to the drafters’ partisan composite. Plaintiff Brigson thus could have been placed in a Democratic district rather than cracked into a Republican district.
102. Plaintiff Rosalie Schnick lives at 3039 Edgewater Lane, La Crosse, WI 54603, which is located in Campbell – T1 in La Crosse County. Plaintiff Schnick is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Schnick’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
103. Plaintiff Schnick’s home is in District 95 of the Current Plan. District 95 contains most of the Democratic voters in the city of La Crosse. To create District 95, the Plan’s drafters intentionally packed Democratic voters such as Plaintiff Schnick. According to the drafters’ partisan composite, District 95 was expected to have a Democratic vote share of 61%. As the drafters predicted, the Democratic candidate prevailed in District 95 without even being challenged in the 2012, 2014, and 2016 elections.
104. The Current Plan’s packing of Democratic voters such as Plaintiff Schnick was unnecessary. In the computer-generated map, Plaintiff Schnick’s home is in a district that includes parts of both La Crosse and areas to the city’s north and east, and that has a Democratic vote share of 55% according to the drafters’ partisan composite. Plaintiff Schnick thus could have been placed in a less packed, more competitive Democratic district.
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105. Plaintiff William Whitford lives at 1047 Sherman Avenue, Madison, WI 53703. Plaintiff Whitford’s home is in ward Madison – C45 in Dane County, which is located in District 76. Plaintiff Whitford is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. In fact, Plaintiff Whitford is a member of the Wisconsin Democratic Party, which reflects his preferences with respect to taxation, education, the environment, and other issues, and has never voted for a Republican legislative candidate. Plaintiff Whitford’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan. Because of the Plan, he has less opportunity than a similarly situated Republican to advocate for, and achieve, a legislative majority for his preferred party. His efforts to canvass voters, phone bank, recruit campaign volunteers, fundraise, and work with candidates are less likely to be successful, and he consequently has less incentive to engage in these activities.
106. Plaintiff Emily Bunting lives at 13625 Goose Creek Road, Viola, WI 54664. Plaintiff Bunting’s home is in ward Forest -T1 in Richland County, which is located in District 49. Plaintiff Bunting is a qualified, registered voter in the State of Wisconsin and a supporter of Democratic candidates and policies. Plaintiff Bunting’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
107. Plaintiff Margaret Leslie DeMuth lives at N8016 County Road G, Lake Mills, WI 53551. Plaintiff DeMuth’s home is in ward Waterloo – T1 in Jefferson County, which is located in District 38. Plaintiff DeMuth is a qualified, registered voter in the State of Wisconsin, a supporter of Democratic candidates and policies, and a member of the Wisconsin Democratic Party. Plaintiff DeMuth’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
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108. Plaintiff Wayne Jensen lives at 400 W. Main Street, Rochester, WI 53167. Plaintiff Jensen’s home is in ward Rochester – V1 in Racine County, which is located in District 63. Plaintiff Jensen is a qualified, registered voter in the State of Wisconsin, a supporter of Democratic candidates and policies, and a member of the Racine County Democratic Party. Plaintiff Jensen’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
109. Plaintiff Wendy Sue Johnson lives at 507 Indian Hills Drive, Eau Claire, WI 54703. Plaintiff Johnson’s home is in ward Seymour – T6 in Eau Claire County, which is located in District 68. Plaintiff Johnson is a qualified, registered voter in the State of Wisconsin, a supporter of Democratic candidates and policies, and a member of the Wisconsin Democratic Party. Plaintiff Johnson’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
110. Plaintiff Ann E. Stevning-Roe lives at 209 S. Columbus Drive, Marshfield, WI 54449. Plaintiff Stevning-Roe’s home is in ward Marshfield – C13 in Wood County, which is located in District 69. Plaintiff Stevning-Roe is a qualified, registered voter in the State of Wisconsin, a supporter of Democratic candidates and policies, and a member of the Wisconsin Democratic Party. Plaintiff Stevning-Roe’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
111. Plaintiff Donald Winter lives at 1555 Lyon Drive, Apt. 113, Neenah, WI 54956. Plaintiff Winter’s home is in ward Neenah – C14 in Winnebago County, which is located in District 55. Plaintiff Winter is a qualified, registered voter in the State of Wisconsin, a supporter of Democratic candidates and policies, and a member of the Wisconsin Democratic Party.
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Plaintiff Winter’s ability to affiliate with like-minded Democrats and to pursue Democratic associational goals has been impaired by the Current Plan.
112. Defendants Beverly Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, and Mark L. Thomsen are all members of the Wisconsin Elections Commission and are named solely in their official capacity as such. The Wisconsin Elections Commission is a state agency under Wis. Stat. § 15.61, which has “general authority” over and “responsibility for the administration of . . . [the State’s] laws relating to elections and election campaigns,” Wis. Stat. § 5.05(1), including the election every two years of Wisconsin’s representatives in the Assembly.
BACKGROUND The Current Plan Was Intended To Discriminate Against Democrats 113. The Current Plan was drafted and enacted with the specific intent to maximize the electoral advantage of Republicans and harm Democrats to the greatest possible extent, by packing and cracking Democratic voters and thus wasting as many Democratic votes as possible. Indeed, after a trial in prior litigation, a three-judge court characterized claims by the Current Plan’s drafters that they had not been influenced by partisan factors as “almost laughable” and concluded that “partisan motivation . . . clearly lay behind Act 43.” Baldus v. Wisconsin Government Accountability Board, 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012). 114. The “mapmakers’ goals in formulating the entire statewide map . . . predictably carr[ied] down to individual districting decisions.” Whitford, 138 S. Ct. at 1937 (Kagan, J., concurring). In particular, the same pursuit of partisan advantage that motivated the Current Plan as a whole drove the creation of each district that plaintiffs have standing to challenge on vote
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dilution grounds. With respect to each of these districts, the Plan’s drafters intentionally cracked or packed Democratic voters in order to benefit Republican candidates and voters.
115. The Current Plan was drafted via a secret process run solely by Republicans in the State Assembly and their agents, entirely excluding from participation all Democratic members of the Assembly as well as the public, and preventing public knowledge of and deliberation about the parameters of the Plan.
116. In January 2011, Scott Fitzgerald, Republican member of the Wisconsin State Senate and Wisconsin Senate Majority Leader, and Jeff Fitzgerald, Republican member of the Wisconsin State Assembly and Speaker of the Assembly, hired attorney Eric McLeod (“McLeod”) and the law firm of Michael, Best & Friedrich, LLP (“Michael Best”), ostensibly to represent the entire Wisconsin State Senate and Wisconsin State Assembly in connection with the reapportionment of the state legislative districts after the 2010 Census. In fact, McLeod and Michael Best were retained to assist the Republican leadership in the Legislature in designing a pro-Republican partisan gerrymander.
117. To accomplish this goal, McLeod and Michael Best supervised the work of the legislative aide to the Republican Speaker of the Assembly, Adam Foltz, and the legislative aide to the Republican Majority Leader of the Senate, Tad Ottman, in planning, drafting, negotiating, and gaining the favorable vote commitments of a majority of Republican legislators sufficient to obtain passage of the Current Plan through Wisconsin Act 43.
118. In creating the Current Plan, McLeod, Michael Best, Foltz, and Ottman used past election results to measure the partisanship of the electorate and to design districts, through packing and cracking, that would maximize the number of districts that would elect a Republican and minimize the number of districts that would elect a Democrat. Thus, they intentionally
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diluted the electoral influence of Democrats, including that of plaintiffs, and discriminated against Democrats, including plaintiffs, because of their political views.
119. McLeod, Michael Best, Foltz, and Ottman were assisted in their work by Dr. Ronald Keith Gaddie, a professor of political science at the University of Oklahoma. Dr. Gaddie created a model that analyzed the expected partisan performance of all of the districts established by Act 43. Dr. Gaddie’s model forecast that the Assembly plan would have a pro-Republican efficiency gap of 12%. When a common methodology is used to ensure an apples-to-apples comparison, this is almost exactly the efficiency gap that the Assembly plan actually exhibited in the 2012 election.
120. Preparation of the Current Plan was done in complete secrecy, excluding Democrats and the public from any part of the process. Indeed, even Republican state legislators were prevented from receiving any information that would allow public discussion or deliberation about the plan. All redistricting work was done in Michael Best’s office and the “map room” was located there. A formal written policy provided that only the Senate Majority Leader, the Speaker of the House and their aides Ottman and Foltz, and McLeod and legal staff designated by McLeod would have unlimited access to the map room.
121. The access policy provided for limited access by rank-and-file legislators: “Legislators will be allowed into the office for the sole purpose of looking at and discussing their district. They are only to be present when an All Access member is present. No statewide or regional printouts will be on display while they are present (with the exception of existing districts). They will be asked at each visit to sign an agreement that the meeting they are attending is confidential and they are not to discuss it.” But only Republican legislators were allowed even this limited access. After signing the secrecy agreements contemplated by the
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policy, Republican legislators were allowed to see only small portions of the map: how their own districts would be affected and details of the partisan performance of voters in their districts in the past, showing that they would be reliable Republican districts.
122. Under the direction and supervision of McLeod, Ottman met with 17 Republican members of the Wisconsin State Senate. Each of them signed a secrecy agreement entitled “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the plan that Michael Best had been hired to develop. The secrecy agreement said that McLeod had “instructed” Ottman to meet with certain members of the Senate to discuss the reapportionment process and characterized such conversations as privileged communications pursuant to the attorney-client and attorney work product privileges—even though the assertion of the privilege was a part of an elaborate “charade” designed “to cover up a process that should have been public from the outset.” Baldus v. Wisconsin Government Accountability Board, 843 F. Supp. 2d 955, 958-61 (E.D. Wis. 2012).
123. Under the direction and supervision of McLeod, Foltz met with 58 Republican members of the Wisconsin State Assembly. Each of them signed the same secrecy agreement entitled “Confidentiality and Nondisclosure Related to Reapportionment” before being allowed to review and discuss the plan that Michael Best had been hired to develop, which also improperly described their conversations as privileged.
124. On July 11, 2011, the plan was introduced by the Committee on Senate Organization without any Democratic members of the Legislature having previously seen their districts or the plan as a whole. As noted above, all Republican members of the Legislature had previously seen their individual districts along with visual aids demonstrating the partisan performance of these districts, but had not seen the overall map.
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125. Act 43 was passed in extraordinarily rushed proceedings with little opportunity for input by the public. A public hearing was held on July 13, 2011. The bill was then passed by the Senate on July 19, 2011, and by the Assembly the next day on July 20, 2011. Act 43 was published on August 23, 2011.
126. McLeod and Michael Best were paid $431,000 in State taxpayer funds for their work on the plan, even though they worked solely for Republican leaders of the Legislature and for the benefit of Republicans, and even though they provided no services to Democrats, entirely excluded them from the process, and concealed their work from the public, preventing any public deliberation about the plan.
The Current Plan Has The Effect of Discriminating Against Democrats The Efficiency Gap Reliably Measures Partisan Gerrymandering
127. The Supreme Court has unanimously agreed that partisan gerrymandering can rise to the level of a constitutional violation. See Vieth v. Jubelirer, 541 U.S. 267, 293 (2004) (“[A]n excessive injection of politics is unlawful”) (emphasis added). To date, though, partisan gerrymandering plaintiffs have failed to propose a judicially manageable standard for deciding what constitutes an “excessive” injection of politics into the redistricting process.
128. In LULAC v. Perry, 548 U.S. 399 (2006), a majority of the Justices expressed support for a test based on the concept of partisan symmetry. Partisan symmetry is a “require[ment] that the electoral system treat similarly-situated parties equally.” Id. at 466 (Stevens, J., concurring in part and dissenting in part). In other words, a map is symmetrical when it creates a level playing field, giving neither major party a systematic advantage over its opponent in the conversion of electoral votes into legislative seats.
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129. In LULAC, the Court considered one particular measure of partisan symmetry, called partisan bias. As described above, partisan bias refers to the divergence in the share of seats that each party would win given the same share (typically 50%) of the statewide vote. See id. at 419-20 (opinion of Kennedy, J.); id. at 466 (Stevens, J., concurring in part and dissenting in part).
130. Partisan bias is not the only measure of partisan symmetry. In the last few years, political scientists and legal academics have developed a new symmetry metric, called the efficiency gap, which improves on partisan bias in several respects. See Eric M. McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Legis Stud. Q. 55 (2014); Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 101 (2015); Expert Report of Prof. Kenneth R. Mayer (July 3, 2015) (“Mayer Report”); Expert Report of Prof. Simon D. Jackman (July 7, 2015) (“Jackman Report”).
131. The efficiency gap is rooted in the insight that, in a legal regime in which each district must have an approximately equal population, there are only two ways to implement a partisan gerrymander. First, a party’s supporters can be cracked among a large number of districts so that they fall somewhat short of a majority in each one. These voters’ preferred candidates then predictably lose each race. Second, a party’s backers can be packed into a small number of districts in which they make up enormous majorities. These voters’ preferred candidates then prevail by overwhelming margins. All partisan gerrymandering is accomplished through cracking and packing, which enables the party controlling the map to manipulate vote margins in its favor.
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132. Both cracking and packing produce so-called “wasted” votes—that is, votes that do not directly contribute to a candidate’s election. When voters are cracked, their votes are wasted because they are cast for losing candidates. Similarly, when voters are packed, their votes are wasted to the extent they exceed the 50%-plus-one threshold required for victory (in a twocandidate race). Partisan gerrymandering also can be understood as the manipulation of wasted votes in favor of the gerrymandering party, so that it wastes fewer votes than its adversary.
133. The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. Suppose, for example, that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20. Then Party A wastes 10 votes in each of the three districts it wins and 20 votes in each of the two districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the two districts it wins and 40 votes in each of the three districts it loses, adding up to 180 wasted votes. The difference between the parties’ respective wasted votes is 110, which, when divided by 500 total votes, yields an efficiency gap of 22% in favor of Party A.
134. The efficiency gap is not based on the principle that parties have a right to proportional representation based on their share of the statewide vote, nor does it measure the deviation from seat-vote proportionality. Instead, by aggregating all of a plan’s cracking and packing into a single number, the efficiency gap measures a party’s undeserved seat share: the proportion of seats a party receives that it would not have received under a balanced plan in which both sides had approximately equal wasted votes. In the above example, for instance, the 22% efficiency gap in favor of Party A means that it won 22% more seats—in this example, 1 more seat out of 5—than it would have under a balanced plan.
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135. Over the 1972-2014 period—since the end of the reapportionment revolution of the 1960s— the distribution of state house plans’ efficiency gaps has been normal and has had a median of almost exactly zero. See Jackman Report at 61; Stephanopoulos & McGhee, supra, at 140-42. This indicates that neither party has enjoyed an overall advantage in state legislative redistricting during the modern era.
136. However, recently the average absolute efficiency gap (i.e., the mean of the absolute values of all plans’ efficiency gaps in a given year) has increased sharply. This metric stayed roughly constant from 1972 to 2010. But in the current cycle, fueled by rising partisanship and greater technological sophistication, it spiked to the highest level recorded in the modern era: over 6% for state house plans. See Jackman Report at 47; Stephanopoulos & McGhee, supra, at 142-45. This means that the severity of today’s partisan gerrymandering is historically unprecedented—as is the need for judicial intervention. Wisconsin’s Current Plan Is an Outlier
137. Between 1972 and the present, the efficiency gaps of Wisconsin’s Assembly plans became steadily larger and more pro-Republican. The Current Plan represents the culmination of this trend, exhibiting the largest and most pro-Republican efficiency gap ever recorded in modern Wisconsin history. In the 1970s, the Assembly plan had an average efficiency gap close to zero. In both the 1980s and the 1990s, it had an average pro-Republican gap of 2%. The Republican advantage deepened in the 2000s to an average gap of 8%. And it then surged, thanks to the Current Plan, to an average gap of 11% in 2012 and 2014. See Jackman Report at 34; Stephanopoulos & McGhee, supra, at 154-56.
138. More specifically, using the same methodology as for all other states, the Current Plan produced a pro-Republican efficiency gap of 13% in 2012 and 10% in 2014. The 2012
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figure represents the 28th-worst score in modern American history (out of nearly 800 total plans), placing the Current Plan in the worst 4% of this distribution, more than two standard deviations from the mean. Based on this historical data, there is close to a zero percent chance that the Current Plan’s efficiency gap will ever switch signs and favor the Democrats during the remainder of the decade. Furthermore, prior to the current cycle, not a single plan in the country had efficiency gaps as high as the Current Plan’s in the first two elections after redistricting. See Jackman Report at 63.
139. Using a more detailed methodology available only for Wisconsin, the Current Plan produced a pro-Republican efficiency gap of 12% in 2012. This is a figure nearly identical to the one calculated using the national data. Using the Wisconsin-specific methodology as well as data compiled prior to 2012 by Dr. Gaddie, the expert retained by the Legislature’s Republican leadership to assist them in drafting the Current Plan, that Plan was forecast to produce an efficiency gap of 12%. This figure also is nearly identical, and shows that the Current Plan performed precisely as its authors hoped and expected. See Mayer Report at 46.
140. This extraordinary level of partisan unfairness was achieved through the rampant cracking and packing of Wisconsin’s Democratic voters, which resulted in their votes being disproportionately wasted. The Mayer Report shows that Democratic voters were cracked so that Republican candidates were far more likely to prevail in close races (where the winner had 60% or less of the vote): Republicans were likely to win 42 such districts, while Democrats would win only 17.3 Democrats were also packed into a number of districts where they would win
3 In making this analysis, the Mayer Report used 2012 election results and further assumed that all districts had been contested and no incumbents had run. These are both standard assumptions made by political scientists to determine a plan’s underlying partisanship.
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overwhelmingly (by getting 80% or more of the vote): there were eight districts where Democrats would win by this margin, compared to zero districts where Republicans would win such a lopsided victory. Thus, through gerrymandering, Republican votes were used more efficiently than Democratic votes to elect representatives, producing an undemocratic result that does not accurately reflect the preferences of the Wisconsin electorate. See Mayer Report at 3841.
141. The forecasts of Dr. Gaddie, the Republican consultant, prior to the 2012 election confirm that the Current Plan was expected and intended to crack and pack Wisconsin’s Democratic voters to this extent. Dr. Gaddie predicted that Republicans would win 46 Assembly districts by a margin smaller than 60%-40%, compared to just 20 such victories for Democrats. He also predicted that Democrats would prevail in seven districts by a margin greater than 80%20%, compared to zero such wins for Republicans. See Mayer Report at 38-41. These figures are nearly identical to plaintiffs’ estimates, and further demonstrate that the Current Plan was intended to disadvantage Democrats and waste Democratic votes to the maximum extent possible. Examples of Cracking and Packing in the Current Plan
142. These plan-level statistics are the product of innumerable local cracking and packing decisions. Across Wisconsin, the Current Plan systematically alters prior district configurations to waste larger numbers of Democratic votes and smaller numbers of Republican votes. The following regional examples show how the Current Plan deliberately allocates Democratic voters less efficiently and Republican voters more efficiently. These are only illustrative examples; they do not show all of the ways in which Wisconsin’s current proRepublican gerrymander was achieved. In addition, the examples focus on: (1) the 2012 election
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because it was the first one held after this cycle’s redistricting; (2) the 2008 election because it was the most comparable prior election, featuring a similar share of the statewide Assembly vote for each party (53.9% Democratic in 2008, 51.4% Democratic in 2012) and also coinciding with a presidential election; and (3) Plaintiffs’ Demonstration Plan, because it reveals the fair results that could have been, but were not, attained in 2012.
Milwaukee, Ozaukee, Washington, and Waukesha Counties: 143. Under the prior Assembly plan that was in force from 2002-2010 (the “Prior Plan”), District 22 (home to Plaintiff Harris) included part of northeastern Milwaukee County; District 23 (home to Plaintiffs Lentini, Switzenbaum, and Wallace) included part of northern Milwaukee County and part of southern Ozaukee County; and District 24 (home to Plaintiff Patel) included part of Washington and Waukesha Counties. In the 2008 election, a Democratic candidate won District 22, and Republican candidates won Districts 23 and 24. Under the Demonstration Plan, a Democratic candidate would win District 22, and Republican candidates would win Districts 23 and 24. 144. As a result of the Current Plan, Democratic voters who were in the old District 22 were cracked into the new Districts 23 and 24. Due to these changes, Districts 22, 23, and 24 were won by Republican candidates in 2012. 145. The shift from one Democratic seat and two Republican seats in the Prior Plan and the Demonstration Plan in Milwaukee, Ozaukee, Washington, and Waukesha Counties, to zero Democratic seats and three Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap.
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Calumet, Fond du Lac, Manitowoc and Sheboygan Counties: 146. Under the Prior Plan, District 26 (home to Plaintiff Donohue) centered on the City of Sheboygan in the central eastern part of Wisconsin and District 27 consisted of the northern part of Sheboygan County as well as parts of Fond du Lac, Calumet, and Manitowoc Counties. In the 2008 election, a Democratic candidate won District 26 and a Republican candidate won District 27. Under the Demonstration Plan, a Democratic candidate would win District 26, and a Republican candidate would win District 27. 147. As a result of the Current Plan, Democratic voters who were in District 26 were cracked so that roughly half of that district was distributed to District 27 and additional voters from south of Sheboygan County were added to District 26. Due to these changes, Districts 26 and 27 were won by Republican candidates in 2012. 148. The shift from one Democratic seat and one Republican seat in the Prior Plan and the Demonstration Plan in Sheboygan County and southern Fond du Lac, Manitowoc and Calumet Counties, to zero Democratic seats and two Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap. Racine and Kenosha Counties: 149. Under the Prior Plan, Districts 61, 62 (home to Plaintiff McCue), 63 (home to Plaintiff Daley), 64, 65, and 66 (home to Plaintiff Mitchell) were almost entirely within Racine and Kenosha Counties in the southeastern edge of Wisconsin. Districts 61 and 62 centered on the City of Racine, with District 63 covering the western side of Racine County. Districts 64 and 65 centered on the City of Kenosha, with District 66 covering the western edge of Kenosha County. In the 2008 election, Democratic candidates won Districts 61, 62, 64, and 65, while Republican candidates won Districts 63 and 66. Under the Demonstration Plan, Democratic candidates
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would win Districts 62, 63, 64, and 66, while Republican candidates would win Districts 61 and 65.
150. As a result of the Current Plan, Democratic voters who were in the old Districts 61 and 62 were packed into the new District 66, thus wasting more Democratic votes in the region. Due to these changes, Districts 64, 65, and 66 were won by Democratic candidates in 2012, while Districts 61, 62, and 63 were won by Republican candidates.
151. The shift from four Democratic seats and two Republican seats in the Prior Plan and the Demonstration Plan in Racine and Kenosha Counties, to three Democratic seats and three Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap.
Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties: 152. Under the Prior Plan, most of Districts 67 (home of Plaintiff Pedersen), 68, 91, 92, 93 (home of Plaintiff Pfundheller), 94 (home of Plaintiff Brent Brigson), and 95 (home of Plaintiff Schnick) were spread across Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties in northwestern Wisconsin. In the 2008 election, Democratic candidates won five of the seven Districts (68, 91, 92, 93, and 95), and Republicans won two of them (67 and 94). The district numbers in the Demonstration Plan are slightly different; instead of District 68, District 69 is in Eau Claire County. Under the Demonstration Plan, Democratic candidates would win six of seven Districts (67, 69, 91, 92, 94, and 95) and a Republican candidate would win one of them (93). 153. As a result of the Current Plan, Democratic voters who were in the old District 68 were packed into the new District 91, and Democrats in the rest of old District 68 as well as old
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Districts 91 and 93 were cracked into the new Districts 68, 92, and 93. Due to these changes, Democratic candidates won only four of the seven districts in 2012 (91, 92, 94, and 95), and Republican candidates won three of them (67, 68, and 93).
154. The shift from five or six Democratic seats, in the Prior Plan and Demonstration Plan respectively, and two or one Republican seats in the Prior Plan and Demonstration Plan respectively, to four Democratic seats and three Republican seats in the Current Plan, in Buffalo, Chippewa, Eau Claire, Jackson, La Crosse, Pepin, Pierce, St. Croix, and Trempealeau Counties, contributed to Wisconsin’s current pro-Republican efficiency gap.
Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties: 155. Under the Prior Plan, most of Districts 42 (home to Plaintiffs James and Allison Seaton), 47, 69, 70 (home to Plaintiff Daniel Dieterich), 71, 72, 85, and 86 (home to Plaintiff Petulla) were spread across Adams, Columbia, Marathon, Marquette, Portage, and Wood counties in central Wisconsin. In the 2008 election, Democratic candidates won five of the eight Districts (42, 70, 71, 72, and 85), and Republicans won three Districts (47, 69, and 86). In the Demonstration Plan the district numbers are different (5, 40, 41, 42, 71, 72, 86, and 87), but of these eight Districts, Democratic candidates would win five (71, 86, 40, 41, and 42), and Republican candidates would win three (5, 72, and 87). 156. As a result of the Current Plan, Democratic voters who were in the old Districts 42, 70, and 72 were cracked, and the new Districts 41, 42, 69, 70, 71, 72, 85, and 86 were created in areas of Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties. Due to these changes, Democratic candidates won only three of the eight Districts (70, 71, and 85) in 2012, and Republican candidates won five of them (41, 42, 69, 72, and 86).
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157. The shift from five Democratic seats and three Republican seats in the Prior Plan and the Demonstration Plan in Adams, Columbia, Marathon, Marquette, Portage, and Wood Counties, to three Democratic seats and five Republican seats in the Current Plan, contributed to Wisconsin’s current pro-Republican efficiency gap.
Brown and Manitowoc Counties: 158. Under the Prior Plan, Brown and Manitowoc Counties were split to include parts of Districts 1, 2, 4 (home to Plaintiff Ramaker), 5, 25 (home to Plaintiff Estrada), 88 (home to Plaintiff Hohenstein), 89, and 90 in the Green Bay area of Wisconsin. In the 2008 election, Democratic candidates won Districts 2, 5, 25, and 88, and Republican candidates won Districts 1, 4, 89, and 90. Under the Demonstration Plan, Brown and Manitowoc Counties would include Districts 1, 2, 3, 25, 26, 88, 89, and 90. Under the Demonstration Plan, Democrats would win Districts 2 and 88, and Republicans would win the remaining six districts. 159. As a result of the Current Plan, Democratic voters who were in the old Districts 2, 5 and 25 were cracked into the new Districts 2, 5, 25, and 88. Due to these changes, seven of the eight districts in the Brown and Manitowoc County area (1, 2, 4, 5, 25, 88, and 89) were won by Republican candidates in 2012, and one District (90) was won by a Democratic candidate in 2012. 160. The shift from four or two Democratic seats in the Prior Plan and the Demonstration Plan, respectively, and four or six Republican seats in the Prior Plan and the Demonstration Plan, respectively, to one Democratic seat and seven Republican seats in the Current Plan, in Brown and Manitowoc Counties, contributed to Wisconsin’s current proRepublican efficiency gap.
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Wisconsin Does Not Need to Have a Gerrymandered Plan 161. Not only did the Current Plan exhibit extremely large efficiency gaps in 2012 and
2014, but this poor performance was entirely unnecessary and served no legitimate purpose. It would have been possible for Wisconsin to enact an Assembly plan that treated both parties symmetrically and did not disproportionately waste Democratic votes. To prove this point, plaintiffs’ expert has designed a Demonstration Plan that would have had an efficiency gap of just 2% in 2012 (assuming all contested districts and no incumbents). See Mayer Report at 46. This far better score is attributable to plaintiffs’ efforts not to crack and pack Democratic voters, and instead to enable both parties to convert their popular support into legislative seats with equal ease.
162. Plaintiffs’ Demonstration Plan performs at least as well as the Current Plan on every other relevant metric. Both plans have total population deviations of less than 1%—far below the courts’ 10% threshold for presumptive constitutionality. Both plans have six African American opportunity districts and one Hispanic opportunity district, and so are identical for Voting Rights Act purposes. The Demonstration Plan splits one fewer municipal boundary than the Current Plan (119 versus 120), and so is superior in that regard. And the Demonstration Plan’s districts are substantially more compact than the Current Plan’s (average compactness of 0.41 versus 0.28). See Mayer Report at 37.
163. The Demonstration Plan proves that the Current Plan’s extreme pro-Republican tilt cannot be blamed on either an effort to comply with legitimate redistricting criteria or Wisconsin’s underlying political geography. Both of those factors were perfectly compatible with a neutral map.
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COUNT I – INTENTIONAL VOTE DILUTION 164. Plaintiffs incorporate and re-allege paragraphs 1-163 of this Complaint as paragraphs 1-163 of this Count I. 165. The Current Plan is a partisan gerrymander so extreme that it violates Plaintiffs’ Fourteenth Amendment right to equal protection of the laws. The Current Plan intentionally and severely packs and cracks Democratic voters, thus disproportionately wasting their votes, even though a neutral map could have been drawn instead. Accordingly, Wisconsin’s Act 43 deprives plaintiffs of their civil rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1988. 166. The efficiency gap provides a workable test to identify unconstitutional partisan gerrymandering similar to the two-part approach applied to state legislative reapportionment claims. In a reapportionment challenge, the first issue is whether a district plan’s total population deviation exceeds 10%. If so, the plan is presumptively unconstitutional, and if not, it is presumptively valid. The second issue, which is reached only if the total population deviation is greater than 10%, is whether the malapportionment is necessary to achieve a legitimate state goal. The state bears the burden at this stage of rebutting the presumption of unconstitutionality. See Voinovich v. Quilter, 507 U.S. 146, 161-62 (1993); Brown v. Thomson, 462 U.S. 835, 842-43 (1983); Connor v. Finch, 431 U.S. 407, 418 (1977). 167. The same two-part approach should be applied to partisan gerrymandering claims, only with the efficiency gap substituted for total population deviation. The first step in the analysis is whether a plan’s efficiency gap exceeds a certain numerical threshold. If so, the plan is presumptively unconstitutional, and if not, it is presumptively valid. The second step, which is reached only if the efficiency gap is sufficiently large, is whether the plan’s severe partisan unfairness is the necessary result of a legitimate state policy, or inevitable given the state’s
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underlying political geography. The state would bear the burden at this stage of rebutting the presumption of unconstitutionality.
168. The Current Plan is plainly unlawful under this two-part test. First, it was forecast to produce, and then did produce, an efficiency gap of approximately 13% in the 2012 election. This is an extraordinarily high level of partisan unfairness, more than two standard deviations from the mean: as noted above, the 2012 figure represents the 28th-worst score in modern American history (out of nearly 800 total plans), placing the Current Plan in the worst 4% of this distribution. This is also not a temporary or transient gerrymander. The Current Plan’s efficiency gap means that there is close to a zero percent chance that the Plan will ever favor Democrats during its lifespan. See Jackman Report at 60. Given its severity and predicted durability, the Current Plan’s efficiency gap far exceeds any plausible threshold for presumptive unconstitutionality.
169. Indeed, even a 7% efficiency gap should be presumptively unconstitutional. A 7% efficiency gap is at the edges of the overall distribution of all state house plans in the modern era, making it indicative of uncommonly severe gerrymandering. See Jackman Report at 61. Historical analysis shows that with a 7% efficiency gap, the gerrymandering is also likely to be unusually durable—over its lifespan, a plan with an efficiency gap of that magnitude is unlikely ever to favor the opposing party. See Jackman Report at 61. However, this Court need not decide at what point an efficiency gap is large enough to trigger a presumption of unconstitutionality. In the state legislative reapportionment context, the applicable cutoff (10%) emerged over a series of cases, in which extreme population deviations (of 34%, then 26%, then 20%) were struck down and deviations of 8% and 10% were upheld before the 10% threshold was adopted. Here
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too the Current Plan’s extreme efficiency gap should be deemed presumptively unconstitutional, without the need to decide what the cut-off should be.
170. Second, the State cannot rebut the presumption that the Current Plan is unlawful. Plaintiffs’ Demonstration Plan would have had an efficiency gap of just 2% in 2012 while complying with all federal and state criteria at least as well as the Current Plan. See Mayer Report at 46. Accordingly, neither an attempt to achieve legitimate redistricting goals nor Wisconsin’s underlying political geography could have necessitated the Current Plan’s partisan imbalance.
171. In addition to its extreme efficiency gap, the Current Plan exhibits a severe partisan bias. The Current Plan produced a partisan bias of 13% in 2012 and 12% in 2014— scores that in and of themselves demonstrate the unconstitutional effects produced by the Current Plan.
172. Finally, there is no doubt that the Current Plan was specifically intended and indeed designed to benefit Republican candidates, and to disadvantage Democratic candidates, to the greatest possible extent. Thus, the Current Plan had both the purpose and effect of subordinating the adherents of one political party and entrenching a rival party in power, in violation of their right to equal protection under the law.
COUNT II – BURDEN ON RIGHT TO ASSOCIATION 173. Plaintiffs incorporate and re-allege paragraphs 1-172 of this Complaint as paragraphs 1-172 of this Count II. 174. Party members, party officials, party organizations, and other party supporters enjoy the First Amendment associational rights “to affiliate in a political party and carry out that organization’s activities and objects.” Whitford, 138 S. Ct. at 1939 (Kagan, J., concurring); see
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also Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment) (noting “the First Amendment interest of not burdening or penalizing citizens because of . . . their association with a political party”). “By placing a state party at an enduring electoral disadvantage,” a partisan gerrymander “weakens its capacity to perform all its functions” and thus burdens these associational rights. Whitford, 138 S. Ct. at 1938 (Kagan, J., concurring); see also Common Cause v. Rucho, ___ F. Supp. 3d ___, 2018 WL 4087220, at *96 (M.D.N.C. Aug. 27, 2018) (“partisan gerrymandering implicates First Amendment precedent dealing with . . . burden[s on] political speech or association”). Specifically, a partisan gerrymander causes “difficulties” for party supporters in conducting associational activities such as “fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives).” Whitford, 138 S. Ct. at 1938 (Kagan, J., concurring).
175. A partisan gerrymander is not automatically unconstitutional if it burdens party supporters’ associational rights. Rather, “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which [it] burdens First and Fourteenth Amendment rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (a court “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments”). “[W]hen those rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434 (internal quotation marks omitted). “But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id.
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(internal quotation marks omitted); see also Common Cause, 2018 WL 4087220, at *96 (noting that “‘sliding-scale’ scrutiny” applies to “state election regulations” such as district plans).
176. The Current Plan is unlawful under this well-established framework. First, it imposes severe burdens on plaintiffs’ associational rights. By subjecting supporters of the Democratic Party to an exceptionally large and durable pro-Republican partisan asymmetry, the Plan deters them from, and hinders them in, turning out to vote, registering voters, volunteering for campaigns, donating money to candidates, running for office, appealing to independents, and advocating and implementing their preferred policies. All of these activities have a sharply reduced likelihood of success because of the Plan’s enormous and persistent pro-Republican skew. Supporters of the Democratic Party thus have a diminished ability to perform these vital functions.
177. The Current Plan cannot survive the strict scrutiny that follows from the severe burdens it imposes on plaintiffs’ associational rights. The Plan’s pursuit of partisan advantage is not even a legitimate—let alone a compelling—governmental interest. See Crawford v. Marion Cty. Elections Bd., 553 U.S. 181, 203 (2008) (observing that if “partisan considerations” are “the only justification” for an election law, that law is unconstitutional). And the Plan’s valid nonpartisan goals (equal population, compliance with the Voting Rights Act, respect for county and municipality boundaries, and compactness) can be achieved to at least the same degree by an Assembly map that treats the major parties symmetrically. Indeed, both the computer-generated map and Professor Mayer’s Demonstration Plan exceed the Current Plan’s performance on these nonpartisan criteria while attaining almost perfect partisan symmetry. See Common Cause, 2018 WL 4087220, at *96 (holding that a North Carolina congressional map’s “express partisan
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favoritism excludes it from the class of ‘reasonable, politically neutral’ electoral regulations that pass First Amendment muster” (quoting Burdick, 504 U.S. at 438)).
178. Accordingly, the Current Plan deprives plaintiffs of their civil rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1988.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court: 179. Declare Wisconsin’s 99 State Assembly Districts, established by Act 43, unconstitutional and invalid, and the maintenance of these districts for any primary, general, special, or recall election a violation of plaintiffs’ associational rights; 180. In addition, declare the 29 State Assembly Districts in which plaintiffs with standing to allege vote dilution reside unconstitutional and invalid, and the maintenance of these districts for any primary, general, special, or recall election a violation of plaintiffs’ rights not to be subjected to intentional vote dilution; 181. Enjoin defendants and the Wisconsin Elections Commission’s employees and agents, including the county clerks in each of Wisconsin’s 72 counties, from administering, preparing for, and in any way permitting the nomination or election of members of the State Assembly from the unconstitutional districts that now exist; 182. In the absence of a state law establishing a constitutional district plan for the Assembly districts, adopted by the Legislature and signed by the Governor in a timely fashion, establish a redistricting plan that meets the requirements of the U.S. Constitution and federal statutes and the Wisconsin Constitution and state statutes; 183. Award plaintiffs their reasonable attorneys’ fees, costs, and litigation expenses incurred in bringing this action; and
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184. Grant such further relief as the Court deems just and proper.
This the 14th day of September, 2018.
By: s/ Douglas M. Poland One of the attorneys for plaintiffs
/s/ Douglas M. Poland Douglas M. Poland State Bar No. 1055189 Alison E. Stites State Bar. No. 1104819 RATHJE WOODWARD LLC 10 East Doty St., Ste. 507 Madison, WI 53703 (608) 960-7430 dpoland@rathjewoodward.com astites@rathjewoodward.com
/s/ Ruth M. Greenwood Ruth M. Greenwood Annabelle E. Harless CAMPAIGN LEGAL CENTER 73 W. Monroe St., Ste. 302 Chicago, IL 60603 (312) 561-5508 rgreenwood@campaignlegalcenter.org aharless@campaignlegalcenter.org
/s/ Paul M. Smith Paul M. Smith J. Gerald Hebert Danielle M. Lang CAMPAIGN LEGAL CENTER 1411 K. St. NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org ghebert@campaignlegalcenter.org dlang@campaignlegalcenter.org
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/s/ Peter G. Earle Peter G. Earle State Bar No. 1012176 LAW OFFICE OF PETER G. EARLE 839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202 (414) 276-1076 peter@earle-law.com /s/ Nicholas O. Stephanopoulos Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th St. Chicago, IL 60637 (773) 702-4226 nsteph@uchicago.edu /s/ Michele L. Odorizzi Michele L. Odorizzi MAYER BROWN LLP 71 S. Wacker Dr. Chicago, IL 60606 (312) 701-7309 modorizzi@mayerbrown.com Attorneys for Plaintiffs
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 Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 1 of 11
EXPERT REPORT OF JOWEI CHEN, Ph.D. October 15, 2018
I am an Associate Professor in the Department of Political Science at the University of Michigan, Ann Arbor. I am also a Research Associate Professor at the Center for Political Studies of the Institute for Social Research at the University of Michigan and a Research Associate at the Spatial Social Science Laboratory at Stanford University. In 2007, I received a M.S. in Statistics from Stanford University, and in 2009, I received a Ph.D. in political science from Stanford University. I have published academic papers on legislative districting and political geography in several political science journals, including The American Journal of Political Science and The American Political Science Review, and Election Law Journal. My academic areas of expertise include legislative elections, spatial statistics, geographic information systems (GIS) data, redistricting, racial politics, legislatures, and political geography. I have unique expertise in the use of computer simulations of legislative districting and to study questions related to political geography and redistricting.
I have provided expert reports in the following redistricting court cases: The League of Women Voters of Florida et al. v. Ken Detzner et al. (Fla. 2d Judicial Cir. Leon Cnty. 2012); Rene Romo et al. v. Ken Detzner et al. (Fla. 2d Judicial Cir. Leon Cnty. 2013); Missouri National Association for the Advancement of Colored People v. Ferguson-Florissant School District and St. Louis County Board of Election Commissioners (E.D. Mo. 2014); Raleigh Wake Citizens Association et al. v. Wake County Board of Elections (E.D.N.C. 2015); Corrine Brown et al. v. Ken Detzner et al. (N.D. Fla. 2015); City of Greensboro et al. v. Guilford County Board of Elections, (M.D.N.C. 2015); Common Cause et al. v. Robert A. Rucho et al. (M.D.N.C. 2016); The League of Women Voters of Pennsylvania et al. v. Commonwealth of Pennsylvania et al. (No. 261 M.D. 2017); Georgia State Conference of the NAACP et al v. The State of Georgia et al. (N.D. Ga. 2017); The League of Women Voters of Michigan et al. v. Ruth Johnson et al. (E.D. Mich. 2017). I have testified at trial in the following cases: Raleigh Wake Citizens Association et al. v. Wake County Board of Elections (E.D.N.C. 2015); City of Greensboro et al. v. Guilford County Board of Elections (M.D.N.C. 2015); Common Cause et al. v. Robert A. Rucho et al. (M.D.N.C. 2016); The League of Women Voters of Pennsylvania et al. v. Commonwealth of Pennsylvania et al. (No. 261 M.D. 2017). I am being compensated $500 per hour for my work in this case.
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I was asked by plaintiffs' counsel to perform the following five tasks: 1) Construct a 'Chen Composite Measure' for the purpose of measuring the Republican vote share of Wisconsin Assembly districts. Construct the measure by using all 2004-2010 statewide election results, as listed in the column headings of Exhibit 464 ("EXH 464.xlsx"), and applying a uniform swing such that the average Republican vote share of the 99 Assembly Districts in the Act 43 plan is identical to the 48.58% average Republican vote share across the 99 Assembly Districts, as reported in Exhibit 172 ("EXH 172.pdf"). 2) Generate a large number of computer-simulated districting plans for Wisconsin's Assembly districts with the following characteristics: A) The same or lower magnitude of population deviations as the Act 43 Assembly map; B) Fewer split counties than the Act 43 map; C) Fewer split municipalities than the Act 43 map; D) At least as many majority-African-American and majority-Hispanic districts as the Act 43 map; E) Fewer paired incumbents than the Act 43 map. 3) Among these computer-simulated plans, identify only those plans with an Efficiency Gap between -0.5% and +0.5%, with districts' partisanship measured using the Chen Composite Measure. Among the computer-simulated plans with an Efficiency Gap between -0.5% and +0.5%, identify the most compact plan, as measured by average Reock score. 4) Describe the characteristics of this identified computer-simulated plan and compare it to the enacted Act 43 plan. 5) Identify the districts in the computer-simulated plan and the enacted Act 43 plan in which each of 31 plaintiffs resides.
1. Constructing the 'Chen Composite Measure' of District-Level Republican Vote Share Plaintiffs' counsel informed me that the drafters of the Act 43 map used all 13 of
Wisconsin's 2004-2010 statewide elections in measuring the partisanship of Assembly districts, as listed in the column headings of Exhibit 464 ("EXH 464.xlsx"). Plaintiffs' counsel also informed me that Exhibit 172 ("EXH 172.pdf") reports the Act 43 drafters' measure of partisanship for each of the 99 Assembly districts in a near-final version of the Act 43 map. Specifically, plaintiffs' counsel informed me the "Final Map" referenced in Exhibit 172 is identical to the Assembly plan currently in use for all but four districts: Assembly Districts 8 and 9 (which were adjusted after the Baldus litigation) and Assembly Districts 98 and 99 (which were adjusted after the "Final Map" was created but before Act 43 was enacted).
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From this exhibit, I determined that the Exhibit 172 measure of partisanship has an average Republican vote share of 48.58% across the 99 Assembly Districts in the "Final Map" referenced in this Exhibit. In Table 1, the fourth column lists these district-level Republican vote shares, as taken from Exhibit 172, and represents the information I used to calculate this average Republican vote share of 48.58% across the 99 Assembly Districts.
Plaintiffs' counsel then asked me to construct a composite measure of partisanship having both of these aforementioned characteristics: Specifically, I was instructed to construct a composite measure of partisanship by using all 2004-2010 statewide election results and applying a uniform swing such that the average Republican vote share of the 99 Assembly Districts in the Act 43 plan is identical to the 48.58% average Republican vote share across the 99 Assembly Districts, as reported in Exhibit 172.
I constructed this composite measure of partisanship using ward-level election data from Wisconsin's 2004-2010 elections, downloaded in a zipped file ("20022010_WI_Election_Data_with_2017_Wards.zip") from Wisconsin's Legislative Technology Services Bureau website.1 I summed up the total number of votes cast in favor of Republican candidates and Democratic candidates during all 2004-2010 statewide elections within each ward. For each Act 43 Assembly District, I then calculated the Republican share of the two-party votes cast in all 2004-2010 statewide elections. These raw Republican vote shares for all Act 43 districts are reported in the second column of Table 1. Across all 99 Assembly Districts in the Act 43 map, the average district-level Republican vote share in the 2004-2010 statewide elections is 46.78%, as reported at the bottom of Table 1.
I then adjusted this raw Republican vote share by a uniform swing in order to match the 48.58% average Republican vote share across the 99 Assembly Districts, as reported in Exhibit 172 (and reproduced in the fourth column of Table 1). The difference between 48.58% (the district-level average from Exhibit 172) and 46.78% (the district-level average raw Republican share in the 20042010 statewide elections) is +1.8%. Thus, I applied a uniform swing of +1.8% to each district's raw Republican share in the 2004-2010 statewide elections in order to arrive at a resulting partisan measure whose district-level average across the 99 Act 43 districts is 48.58%. This resulting uniform-swing-adjusted partisan measure is reported in the third column of Table 1 and is hereinafter referred to as the 'Chen Composite Measure.'
1 Downloaded from: https://data-ltsb.opendata.arcgis.com/datasets/2002-2010-wi-election-data-with-2017-wards
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The Chen Composite Measure closely mimics the Act 43 drafters' measure of partisanship, as reported in Exhibit 172, in three important ways. First, at the level of the Act 43 Assembly Districts, the statistical correlation between the Chen Composite Measure and the Exhibit 172 partisanship measure is over 0.99, indicating a near-perfect correlation between the two measures. Second, both measures agree about which Act 43 Assembly Districts favor Republicans versus Democrats: The 59 districts with over 50% Republican vote share as measured by the Exhibit 172 partisanship measure are also the same 59 districts that have over 50% Republican vote share using the Chen Composite Measure. Similarly, the 40 districts that are under 50% Republican vote share in Exhibit 172 also all have under 50% Republican vote share using the Chen Composite Measure. Finally, the Chen Composite Measure has, by design, exactly the same average score across the 99 Act 43 Assembly Districts as the Exhibit 172 partisanship measure has across the 99 "Final Map" districts listed in Exhibit 172.
Figure 1 provides a visual comparison of the Chen Composite Measure and the Exhibit 172 partisanship measure. In this Figure, each Assembly District's partisanship, as measured by Exhibit 172, is shown along the vertical axis. Each Assembly District's Republican vote share, as measured by the Chen Composite Measure, is shown along the horizontal axis. Figure 1 makes visually clear that among Wisconsin's 99 Assembly districts, all but four districts have an Exhibit 172 partisanship measure virtually identical to their Chen Composite Measure. The four districts for which the Exhibit 172 partisanship measure is not virtually identical to the Chen Composite Measure are Assembly Districts 8, 9, 98, and 99. As explained earlier, plaintiffs' counsel informed me that the boundaries of these four districts were adjusted after the creation of Exhibit 172. Therefore, the correlation between the Chen Composite Measure and the Exhibit 172 partisanship measure would be even higher, but for the changing of these four districts' boundaries.
2. Generating Computer-Simulated Assembly Districting Plans Plaintiffs' counsel asked me to generate a large number of computer-simulated districting
plans for Wisconsin's Assembly districts with the following characteristics: A) The same or lower magnitude of population deviations as the Act 43 Assembly map; B) Fewer split counties than the Act 43 plan; C) Fewer split municipalities than the Act 43 plan; D) At least as many majorityAfrican-American and majority-Hispanic districts as the Act 43 map; E) Fewer paired incumbents than the Act 43 map. More specifically, plaintiffs' counsel instructed me to hold frozen Assembly Districts 8 and 9 from the Act 43 map (using the boundaries of these two districts as adjusted after
4

Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 5 of 11
the Baldus litigation). Holding these two districts frozen has the effect of matching the Act 43 map's creation of one majority-Hispanic district.
Table 2 describes the characteristics of the Act 43 Assembly map along these various aforementioned criteria. Below, I describe how the computer simulation algorithm implements these criteria:
1) Geographic Contiguity: The computer simulation algorithm I use for this report requires districts to be contiguous by land, with no point contiguity. In other words, a district that combines two areas is considered contiguous only if those two areas share a common border of non-zero length. Even when a ward contains geographically non-contiguous fragments, the district in which the ward lies is nevertheless required to be contiguous. Where offshore islands exist, these islands are considered to be contiguous with the mainland portions of their respective wards.
2) Equal Population: As of the 2010 Census, Wisconsin has a total statewide population of 5,686,986, so each of the state's 99 Assembly districts has an ideal district population of 57,444.3. In the Act 43 map, Assembly District 8, with a population of 57,196, deviates from this ideal district population by 248.3, which is the largest deviation among all districts in the Act 43 map. Therefore, I program the computer-simulated districting algorithm to require that all simulated districts have a population deviation of less than 248.3.
3) Minimizing Split Counties: After ensuring district contiguity and compliance with the equal population threshold, the simulation algorithm then seeks to minimize the number of counties split in each simulated districting plan. As Table 2 reports, the Act 43 map splits apart 58 of Wisconsin's 72 counties. Table 6 lists these 58 split counties in the Act 43 map. Thus, the simulation algorithm intentionally produces plans that split fewer than 58 total counties.
4) Minimizing Split Municipalities: The simulation algorithm also seeks to minimize the number of municipalities split in each simulated districting plan. As Table 2 reports, the Act 43 map splits apart 67 of Wisconsin's municipalities, which include cities, towns, and villages. Table 5 lists these 67 split municipalities in the Act 43 map. Thus, the simulation algorithm intentionally produces plans that split fewer than 67 total municipalities.
5) Majority-Minority Assembly Districts: The simulation algorithm requires plans to contain six districts with at least 50% African-American VAP, matching the Act 43 map's number of majority-African-American districts. In calculating the Black Voting Age Population of each district, I include only individuals who identify as single-race African-American. Additionally,
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Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 6 of 11
Assembly Districts 8 and 9 from the Act 43 map are frozen in every simulated plan, thus producing one district in each plan (District 8) with a majority-Hispanic VAP.
6) Avoiding Paired Incumbents: Plaintiffs' counsel provided me with a list of all 96 incumbent Assembly members as of the November 2012 election; the remaining three districts (Assembly districts 60, 83, and 94) contained no incumbent as of 2012. I geocoded the residential addresses of each incumbent to identify the district in which each incumbent resides in the Act 43 map and the computer-simulated maps.
As reported in Table 2, the Act 43 map contains 22 incumbents who were placed into a district containing multiple incumbents; the remaining 74 incumbents were the only incumbents in their respective districts. Therefore, I programmed the simulation algorithm to guarantee that fewer than 22 incumbents were paired, or placed into a district with multiple incumbents. Table 9 identifies the 22 paired (or "Not Protected") incumbents and the 74 non-paired (or "Protected") incumbents under the Act 43 plan.
The Computer Simulation Algorithm: The simulation algorithm proceeds as follows: First, the algorithm begins with a set of base geographies to be used as building blocks for constructing a simulated plan. In creating Assembly districting plans, I primarily use ward boundaries as the building blocks; however, I split up non-contiguous portions of single wards into separate building blocks in order to avoid creating non-contiguous Assembly districts. Specifically, in constructing this set of base geographies, I used Wisconsin's 2012 ward-level shapefile, which I downloaded in a zipped file (named "2012_wi_precincts.zip") from Wisconsin's Legislative Technology Services Bureau website.2 This shapefile, produced by the Wisconsin LTSB, uses the Wisconsin Transverse Mercator projected coordinate system.3 Thus, all subsequent calculations of district compactness of computer-simulated plans in this expert report are also based on this same projected coordinate system.
Second, the algorithm randomly divides up these geographies into an initial plan consisting of 97 simulated districts and two frozen districts (Assembly Districts 8 and 9 from the Act 43 map, as adjusted after the Baldus litigation). These 97 simulated districts are constructed in the following manner: First, the non-frozen portions of Wisconsin are randomly divided into two contiguous
2 I downloaded the "2012_wi_precincts.zip" file on February 16, 2016. Although the file is no longer available on the Wisconsin LTSB website, a copy remains available on the following external URL: https://github.com/aaron-strauss/precinct-shapefiles/tree/master/wi 3 Described at: https://epsg.io/3071
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Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 7 of 11
groups: One group consisting of 48/97ths of the total population, and the second group consisting of 49/97ths of the total population. Next, the 48/97ths group is randomly divided into two sub-groups, each consisting of 24/97ths of the total population. Meanwhile, the 49/97ths group is randomly divided into two subgroups, one consisting of 24/97ths and the second consisting of 25/97ths of the total population. These iterative sub-divisions continue until the non-frozen portions of Wisconsin are divided into 97 contiguous, equally-populated sub-groups.
Third, the computer then employs three Markov chain Monte Carlo (MCMC) algorithms to pursue various redistricting criteria. First, the algorithm evaluates a large number of randomlyproposed, iterative changes to the various boundaries between the districts; in each iteration, a proposed change is accepted only if the total number of majority-African-American districts does not decrease. These random, iterative changes continue until the districting map achieves a total of six majority-African-American VAP districts. The second MCMC algorithm considers yet more randomly-proposed, iterative changes to the district boundaries; proposed changes are accepted only if the number of paired incumbents does not increase and the number of majority-African-American VAP districts does not decrease. This second set of MCMC iterations continues until the number of paired incumbents falls below 22, which is the number of paired incumbents in the Act 43 map. Finally, the third MCMC algorithm accepts randomly-proposed, iterative changes to district boundaries only if the number of paired incumbents does not increase, the number of majorityAfrican-American VAP districts does not decrease, and the total number of split county and municipality fragments does not increase. This third set of MCMC iterations continues until the plan contains significantly fewer than the 58 split counties and 67 split municipalities observed in the enacted Act 43 map. By considering and selectively implementing a large number of random iterative changes to the districts’ boundaries, the algorithm thus gradually decreases the number of split counties, split municipalities, and paired incumbents in the plan, while matching the Act 43 map's six majority-African-American districts. These iterative changes result in a plan in which county and municipality boundaries are generally followed, except when splitting counties and municipalities is necessary for achieving one of the other aforementioned districting criteria.
In total, I conducted this entire simulation algorithm enough times to produce 9,452 separate districting plans. In the following section, I describe how I calculated certain characteristics of these simulated plans and identified one plan using a set of objective criteria.
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Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 8 of 11
3. Selecting a Single Simulated Assembly Plan I was instructed by plaintiffs' counsel to identify, among the 9,452 computer-simulated
plans, only those plans whose Efficiency Gap rounds to zero - that is, plans with an Efficiency Gap between -0.5% and +0.5%, with districts' partisanship measured using the Chen Composite Measure. I was further instructed to identify, among the computer-simulated plans with an Efficiency Gap between -0.5% and +0.5%, the most compact plan, as measured by average Reock score.
For each computer-simulated plan, I calculated each district's partisanship using the Chen Composite Measure by using the 2004-2010 statewide election votes and applying the same uniform swing described in the first section of this report. I then calculated the Efficiency Gap of each computer-simulated plan using the Chen Composite Measure to characterize each district's Republican vote share.
The Efficiency Gap is a commonly-used measure of a districting plan’s partisan bias. To calculate the Efficiency Gap of each computer-simulated plan, I first calculated the number of Republican and Democratic voters within each district using the Chen Composite Measure, multiplied by the total number of two-party votes cast in statewide elections during 2004-2010. I then calculated each districting plan’s Efficiency Gap using the method outlined in Partisan Gerrymandering and the Efficiency Gap4. Districts are classified as Democratic victories if, across these statewide elections, the sum total of Democratic votes in the district during these elections exceeds the sum total of Republican votes; otherwise, the district is classified as Republican. For each party, I then calculate the total sum of surplus votes in districts the party won and lost votes in districts where the party lost. Specifically, in a district lost by a given party, all of the party’s votes are considered lost votes; in a district won by a party, only the party’s votes exceeding the 50% threshold necessary for victory are considered surplus votes. A party’s total wasted votes for an entire districting plan is the sum of its surplus votes in districts won by the party and its lost votes in districts lost by the party. The Efficiency Gap is then calculated as total wasted Democratic votes minus total wasted Republican votes, divided by the total number of two-party votes cast statewide across all 13 elections. Thus, a positive Efficiency Gap indicates more wasted Democratic than Republican votes, while a negative Efficiency Gap indicates more wasted Republican than Democratic votes.
4 Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 University of Chicago Law Review 831 (2015).
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Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 9 of 11
I calculated the Efficiency Gap of each of the 9,452 computer-simulated plans described in the previous section. I then identified only those plans with an Efficiency Gap between -0.5% and +0.5%. Among these plans, I then identified the most compact plan, as measured by average Reock score. This process led to the identification of Simulated Map 43995.
4. Characteristics of Simulated Map 43995 Table 3 provides the following information regarding each district in the enacted Act 43
Map: (1) its population; (2) its Black Voting Age Population share; (3) its Hispanic Voting Age Population share; (4) its Reock compactness score; (5) its Polsby-Popper compactness score; and (6) its Republican vote share as measured by the Chen Composite Measure. Table 4 provides the same information regarding each district in Simulated Map 43995. Figure 2 includes a statewide map of the Act 43 Map's districts (Figure 2a), as well as zoomed-in maps detailing the districts in Milwaukee, Brown, Dane, Racine, and Kenosha Counties (Figure 2b). Figure 3 includes a statewide map of Simulated Map 43995's districts (Figure 3a), as well as zoomed-in maps detailing the districts in Milwaukee, Brown, Dane, Racine, and Kenosha Counties (Figure 3b). In all of these maps in Figures 2 and 3, all districts are shaded by partisanship using the Chen Composite Measure, with Democratic-leaning districts shaded from dark blue (most heavily Democratic) to light blue (least Democratic) and Republican-leaning districts shaded from dark red (most heavily Republican to light red (least Republican).
The maps in Figures 4 and 5 are all shaded at the ward level (using 2011 ward boundaries) by partisanship using the Chen Composite Measure, with Democratic-leaning wards shaded from dark blue (most heavily Democratic) to light blue (least Democratic) and Republican-leaning wards shaded from dark red (most heavily Republican to light red (least Republican). In addition to shading each ward by its partisanship, Figure 4a contains black lines depicting the boundaries of the Act 43 Map's districts for all of Wisconsin, while Figure 4b contains zoomed-in maps detailing the Act 43 Map's districts in Milwaukee, Brown, Dane, Racine, and Kenosha Counties. Similarly, Figure 5a contains black lines depicting the boundaries of Simulated Map 43995's districts for all of Wisconsin, while Figure 5b contains zoomed-in maps detailing Simulated Map 43995's districts in Milwaukee, Brown, Dane, Racine, and Kenosha Counties.
Table 2 compares the plan-wide characteristics of the Act 43 Map and Simulated Map 43995. Simulated Map 43995 pairs 18 incumbents (compared to 22 in the Act 43 Map), splits 43 counties (compared to 58 in the Act 43 Map), splits 53 municipalities (compared to 67 in the Act 43
9

Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 10 of 11
Map), and contains districts within 248.3 of the ideal district population (identical to the maximum population deviation of the Act 43 Map). Table 7 lists the 53 municipalities split by Simulated Map 43995, while Table 8 lists the 43 counties split by Simulated Map 43995. Furthermore, Simulated Map 43995 has an average Reock compactness score of 0.402 (compared to 0.375 in the Act 43 Map) and an average Polsby-Popper compactness score of 0.271 (compared to 0.250 in the Act 43 Map). Table 9 lists the 96 Assembly incumbents, as of 2012, and identifies the Act 43 district and the Simulated Plan 43995 district within which each incumbent resides, thus identifying whether each incumbent is non-paired ("Protected") or paired ("Not Protected") within each of these two plans.
To calculate the compactness scores of the enacted Act 43 map, I first downloaded a shapefile of the Act 43 Assembly district boundaries from the Wisconsin LTSB website.5 I found that this shapefile uses the World Geodetic System 1984 (WGS84) coordinate system.6 I thus calculated the Reock and Polsby-Popper compactness scores for the Act 43 plan using this shapefile and its WGS84 coordinate system. This WGS84 coordinate system is different from the coordinate system used in the Wisconsin LTSB's ward shapefile described earlier in this report. However, I found that regardless of whether the Act 43 Map's compactness is calculated using the WGS84 coordinate system or the Wisconsin Transverse Mercator projected coordinate system used in the Wisconsin LTSB's ward shapefile, the Act 43 Map remains less geographically compact than Simulated Map 43995.
Finally, Figure 6 displays the Efficiency Gap of Simulated Map 43995 under different uniform swing conditions. Specifically, to create this Figure, I applied various alternative uniform swings to the Chen Composite Measure, ranging from -5% to +5% (at intervals of 0.1%). I then recalculated the Efficiency Gap of Simulated Map 43995 under each of these uniform swing conditions, applying the same uniform swing to all districts in Simulated Map 43995. These Efficiency Gaps for each uniform swing condition are shown in Figure 6.
5. Plaintiffs' Districts in the Act 43 Map and Simulated Plan 43995 Plaintiffs' counsel provided me with a list of 31 plaintiffs, listed in Table 10, and their
respective residential addresses. Plaintiffs asked me to identify the districts in the enacted Act 43 Map and in Simulated Plan 43995 in which each of these 31 plaintiffs resides.
5 https://data-ltsb.opendata.arcgis.com/datasets/wisconsin-assembly-districts-2012 6 https://epsg.io/4326
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Case: 3:15-cv-00421-jdp Document #: 221 Filed: 10/26/18 Page 11 of 11
I geocoded each plaintiff's residential address and identified each plaintiff's district in the two plans. Table 10 specifies the following information about each of these 31 plaintiffs: (1) In which district in the Act 43 Map the plaintiff is located; (2) what this district's Republican vote share is using the Chen Composite Measure; (3) in which district in Simulated Plan 43995 the plaintiff resides; and (4) what this district's Republican vote share is using the Chen Composite Measure.
The end of this report contains a series of two maps for each of the 31 plaintiffs: One map depicting the plaintiff's residence within the plaintiff's Act 43 Assembly district, and a second map depicting the plaintiff's residence within the plaintiff's district in Simulated Plan 43995. In both maps, the plaintiff's district is shaded using the same blue-red color scale, based on the partisanship of the district (as measured by the Chen Composite Measure), as in Figures 2 and 3. In each map, the Republican vote share (as measured by the Chen Composite Measure) of the plaintiff's district is also reported in the third line in the third row of the header of the map.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge. This 15th day of October, 2018.
Jowei Chen
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 Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 1 of 43














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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 5 of 43
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 23 of 43 ''-!82+ 
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 24 of 43
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 25 of 43

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Pierce Dunn 91
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Buffalo 
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 26 of 43
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 27 of 43

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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 29 of 43 ''-!82+ 
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 42 of 43 Kenneth R. Mayer
Sources
Ban, Pamela, Elena Llaudet, and James M. Snyder, Jr. 2016. “Challenger Quality and the Incumbency Advantage.” Legislative Studies Quarterly 41:153-179.
Barber, Michael. 2016. “Donation Motivations: Testing Theories of Access and Ideology.” Political Research Quarterly 69:148-159.
Bullock, Charles S., 111. 2010. Redistricting: The Most Political Activity in America (Lanham, MD: Rowman & Littlefield).
Carsey, Thomas M. and William D. Berry. 2014. “What’s a Losing Party to Do? The Calculus of Contested State Legislative Elections.” Public Choice 160:251-273.
Caughey, Devin, and Christopher Warshaw. 2016. “The Dynamics of State Policy Liberalism, 1936– 2012.” American Journal of Political Science 60: 899–913.
Caughey, Devin, Chris Tausanovitch, and Christopher Warshaw. 2017. “Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies.” Election Law Journal 16:453-469.
Cox, Gary W. and Eric Magar. 1999. “How Much is Majority Status in the U.S. Congress Worth?” American Political Science Review 93:299-309.
Forgette, Richard, Andrew Garner, and John Winkle. 2009. “Do Redistricting Principles and Practices Affect U.S. State Legislative Electoral Competition?” State Politics and Policy Quarterly 9:151-175.
Hays, Danny and Seth C. McKee. 2009. “The Participatory Effects of Redistricting.” American Journal of Political Science 53:1006-1023.
Hogan, Robert E. 2001. “Campaign War Chests and Challenger Emergence in State Legislative Elections.” Political Research Quarterly 54:815-830.
Hogan, Robert E. 2004. “Challenger Emergence, Incumbent Success, and Electoral Accountability in State Legislative Elections.” Journal of Politics 66:1283-1303.
Jacobson, Gary C., and Samuel Kernell. 1983. Strategy and Choice in Congressional Elections. New Haven: Yale University Press.
Moncrief, Gary F. 1999. “Recruitment and Retention in U.S. Legislatures.” Legislative Studies Quarterly 24:173-208.
Powell, Lynda W. 2013. “The Influence of Campaign Contributions on Legislative Policy.” The Forum 11: 339-355.
Sanbonmatsu, Kira. 2006. “The Legislative Party and Candidate Recruitment in the American States.” Party Politics 12:233-256.
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Case: 3:15-cv-00421-jdp Document #: 222 Filed: 10/26/18 Page 43 of 43 Kenneth R. Mayer Squire, Peverill. 2000. “Uncontested Seats in State Legislative Elections.” Legislative Studies
Quarterly 25:131-146. Thompson, Joel A., William Cassie, and Malcom E. Jewell. 1994. “A Sacred Cow or Just a Lot of Bull?
Party and PAC Money in State Legislative Elections.” Political Research Quarterly 47:223237. Werner, Timothy and Kenneth R. Mayer. 2007. “Public Election Funding, Competition, and Candidate Gender.” PS: Political Science and Politics 40:661-667. Winburn, Jonathan, and Michael W. Wagner. 2010. “Carving Voters Out: Redistricting’s Influence on Political Information, Turnout, and Voting Behavior.” Political Research Quarterly 63:373-386.
43

 
 Case: 3:15-cv-00421-jdp Document #: 243 Filed: 01/23/19 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE,
Plaintiffs, v.
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, STEVE KING, DON MILLS, and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

OPINION and ORDER 15-cv-421-jdp

Case: 3:15-cv-00421-jdp Document #: 243 Filed: 01/23/19 Page 2 of 6

THE WISCONSIN ASSEMBLY DEMOCRATIC CAMPAIGN COMMITTEE,
Plaintiff, v.
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

OPINION and ORDER 18-cv-763-jdp

The question before the court is whether these consolidated cases should be stayed pending resolution of Rucho v. Common Cause, No. 18-422 (U.S.), and Lamone v. Benisek, No. 18-726 (U.S.), two other cases raising partisan gerrymandering claims that are now before the Supreme Court. Intervenor-Defendant Wisconsin State Assembly favors a stay, contending that Rucho and Lamone are likely either to provide a new legal standard for partisan gerrymandering claims or to hold that such claims are not justiciable. Dkt. 230.1 Either way, the Assembly says, allowing these cases to proceed before the Supreme Court decisions would waste the resources of the court and the parties. Plaintiffs object to a stay, contending that a significant delay will prevent them from obtaining relief on their claims before the 2020 elections. The other defendants take no position on the question.
Both the Assembly and plaintiffs raise important considerations. For reasons explained below, the court will take a middle path intended to minimize the waste of resources while

1 Docket entries are to Case No. 15-cv-421-jdp. 2

Case: 3:15-cv-00421-jdp Document #: 243 Filed: 01/23/19 Page 3 of 6
keeping the case on track for reasonably prompt resolution. The court will allow discovery to proceed as scheduled, but it will delay the trial and any decision on the merits until after the Supreme Court decides Rucho and Lamone.
ANALYSIS The court has discretion to stay proceedings for the sake of judicial economy, Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), including when there are parallel proceedings that could resolve important issues in the case. E.g., Texas Indep. Producers & Royalty Owners Ass’n v. E.P.A., 410 F.3d 964, 980 (7th Cir. 2005); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir. 1987). In considering a motion to stay, the court must weigh the costs and benefits to each side. Radio Corp. of Am. v. Igoe, 217 F.2d 218, 220 (7th Cir. 1954); Grice Eng’g, Inc. v. JG Innovations, Inc., 691 F. Supp. 2d 915, 920 (W.D. Wis. 2010). Rucho and Lamone have important implications for our cases, which require this court to resolve four main issues: (1) whether partisan gerrymandering claims are justiciable; (2) whether any of the plaintiffs have standing to sue; (3) whether the legislative maps at issue in these cases violate the First Amendment; and (4) whether the maps violate the Fourteenth Amendment. Rucho and Lamone present these issues as well. Rucho and Lamone will likely be decided toward the end of the current Supreme Court term, in June 2019, after the currently scheduled trial and post-trial briefing in our cases. As the parties know well, this court cannot simply apply well-established principles to a new set of facts in deciding these cases. The Supreme Court has not yet provided a standard for determining whether a partisan gerrymander violates the First or Fourteenth Amendment or even determined whether such claims are justiciable. If the Court determines that partisan
3

Case: 3:15-cv-00421-jdp Document #: 243 Filed: 01/23/19 Page 4 of 6
gerrymandering claims are not justiciable, these cases will have to be dismissed. If the Court articulates a standard for evaluating partisan gerrymandering claims that departs from any standard applied by this court, then a new trial under the correct standard may be necessary. Either way, holding a trial and taking full briefing in these cases before the Supreme Court decides Rucho and Lamone would almost certainly lead to a significant waste of resources for the parties and the court.
Plaintiffs’ concerns about timing are valid, but allowing these cases to go forward without taking consideration of Rucho and Lamone would not necessarily mean that plaintiffs could obtain a ruling from the Supreme Court any faster. Even assuming that the Supreme Court concludes that partisan gerrymandering claims are justiciable, it will not help the plaintiffs if this court has to retry the cases under a new standard.
The court is persuaded that judicial economy and the balance of equities favor delaying the trial and any decision on the merits until the Supreme Court decides Rucho and Lamone. But to avoid any unnecessary delay once that happens, this court will allow discovery to proceed in the meantime. Most of that discovery should be relevant regardless of any new standard announced by the Supreme Court. Although the experts may need to update their reports, the court will give the parties an opportunity to do that before trial as necessary.
It is true that should the Supreme Court determine that partisan gerrymandering claims are not justiciable, the parties’ work will have been for naught. But the court must weigh the interests of both sides. Staying all proceedings until the Supreme Court decides Rucho and Lamone would significantly delay this court’s resolution of these cases, thereby increasing the risk of prejudice to plaintiffs. By allowing discovery to proceed while staying the trial, the court
4

Case: 3:15-cv-00421-jdp Document #: 243 Filed: 01/23/19 Page 5 of 6
hopes to minimize any wasted effort while still allowing the parties to obtain timely Supreme Court review.
A trial beginning on July 22, 2019, would allow the parties to update their expert reports and prepare for trial under the new law. A compressed post-trial briefing schedule would allow the case to be under advisement to this court by early September, and the court will commit to decide the cases as promptly as possible in light of the complexities of the dispute.
Such a schedule would impose only modest delay. Plaintiffs acknowledge that this court could not issue a decision on the merits until the Supreme Court decides Rucho and Lamone and that, at a minimum, supplemental briefing would be required. Dkt. 239, at 5. So even under plaintiffs’ best-case scenario, the case would not be under advisement until late July at the earliest. It makes little sense to expend the additional resources necessary for an early trial for such a small time savings, particularly when the chances of retrial are so significant.
So the court will grant the Assembly’s motion in part and deny it in part. The court will hold a telephone conference with the parties to give them an opportunity to provide input on the proposed July 22 trial date, deadlines for updated expert reports, and a post-trial briefing schedule.
One final point. At the Assembly’s request, the court has delayed further briefing on the Assembly’s motions to dismiss both cases pending a decision on the Assembly’s motion to stay. Dkt. 235. Now that the court has agreed to stay a decision on the merits pending decisions in Rucho and Lamone, the court will deny the motions to dismiss without prejudice to the Assembly’s renewing its motions after the Supreme Court decides those cases.
5

Case: 3:15-cv-00421-jdp Document #: 243 Filed: 01/23/19 Page 6 of 6
ORDER IT IS ORDERED that: 1. The Wisconsin State Assembly’s motion to stay, Dkt. 230, is GRANTED in part
and DENIED in part. The court will allow discovery to proceed but will postpone the trial and a decision on the merits until after the Supreme Court decides Rucho v. Common Cause, No. 18-422 (U.S.), and Lamone v. Benisek, No. 18-726 (U.S.). 2. The Assembly’s motions to dismiss, Dkt. 224 (in Case No. 15-cv-421-jdp) and Dkt. 27 (in Case No. 18-cv-763-jdp), are DENIED without prejudice pending resolution of Rucho and Lamone. 3. The clerk of court is directed to set a telephone conference with the parties to determine a new trial date and related deadlines. Entered January 23, 2019.
BY THE COURT: _/s/_______________________________________ WILLIAM C. GRIESBACH District Judge _/s/_______________________________________ JAMES D. PETERSON District Judge
Judge Ripple respectfully dissents from the part of the order that grants the motion to stay the trial.
_/s/_______________________________________ KENNETH F. RIPPLE Circuit Judge
6

 
 Case: 3:15-cv-00421-jdp Document #: 318 Filed: 07/02/19 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE,
Plaintiffs, v.
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

OPINION and ORDER 15-cv-421-jdp

Both plaintiffs and defendants move to dismiss this case in light of Rucho v. Common Cause, in which the Supreme Court held that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” No. 18-422, slip op. (June 27, 2019), at 30.

Case: 3:15-cv-00421-jdp Document #: 318 Filed: 07/02/19 Page 2 of 3 Two issues remain. First, plaintiffs say that the dismissal should be without prejudice, Dkt. 316; defendants say it should be with prejudice, Dkt. 317. There is no doubt that this case cannot succeed in federal court. But political questions are beyond the jurisdiction of federal courts, Rucho, slip op., at 7, and dismissals for lack of jurisdiction are not decisions on the merits, and thus such dismissals are always without prejudice, Bernstein v. Bankert, 733 F.3d 190, 224 (7th Cir. 2013). Accordingly, this case will be dismissed without prejudice.
Second, defendants express their intent to seek fees or costs. Statutory costs will be awarded to the defendants as the prevailing party and taxed by the clerk as provided under Rule 54(c)(1). Defendants have until July 15, 2019, to file a brief supporting their entitlement to fees (but not the amount). Plaintiffs have until July 29, 2019, to respond. Each side is limited to 20 pages. The court will set a schedule to determine the amount of fees after it decides whether defendants are entitled to them.
2

Case: 3:15-cv-00421-jdp Document #: 318 Filed: 07/02/19 Page 3 of 3
ORDER IT IS ORDERED that: 1. Plaintiffs’ motion to dismiss the case without prejudice, Dkt. 316, is GRANTED.
Defendants’ motion to dismiss the case with prejudice, Dkt. 317, is DENIED. 2. This case is DISMISSED without prejudice. The clerk of court is directed to enter
judgment accordingly. 3. Defendants have until July 15, 2019, to submit a bill of costs to the clerk of court;
plaintiffs may file any opposition to the bill of costs by July 29, 2019. 4. Defendants may have until July 15, 2019, to file a motion for fees. Plaintiffs may
have until July 29, 2019, to respond. Entered July 2, 2019.
BY THE COURT: /s/________________________________________ KENNETH F. RIPPLE Circuit Judge /s/________________________________________ WILLIAM C. GRIESBACH District Judge /s/________________________________________ JAMES D. PETERSON District Judge
3

 
 Case: 3:15-cv-00421-jdp Document #: 347 Filed: 08/22/19 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE,
Plaintiffs,
v.
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN,
Defendants,
and
THE WISCONSIN STATE ASSEMBLY,
Intervenor-Defendant.

OPINION and ORDER 15-cv-421-jdp

Before the court are Defendants Wisconsin Election Commission members’ Bill of Costs as well as Intervenor-Defendant Wisconsin State Assembly’s Bill of Costs and motion for

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attorney’s fees. For the reasons explained below, we deny the Assembly’s motion for attorney’s fees and decline to award costs to either defendant.
BACKGROUND Plaintiffs, registered voters who support the election of Democratic candidates and the implementation of Democratic policies, filed this action against the members of the Wisconsin Election Commission (collectively, “WEC”) asserting that Wisconsin’s Assembly redistricting map constitutes an unconstitutional partisan gerrymander. Plaintiffs claimed that the Republicancontrolled legislature created and enacted a redistricting plan (“Act 43”) that systematically dilutes the voting strength of Democratic voters statewide. After a four-day trial, a majority of the court concluded that the redistricting plan embodied in Act 43 constituted an unconstitutional gerrymander. See Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016). The WEC appealed to the Supreme Court pursuant to 28 U.S.C. § 1253. The Court vacated this court’s judgment and remanded the case to allow the court to address the issue of standing. Gill v. Whitford, 138 S. Ct. 1932 (2018). On remand, the Wisconsin State Assembly moved for, and was granted, leave to intervene as an additional defendant. On January 7, 2019, the defendants requested that the court stay the case pending the resolution of Rucho v. Common Cause, No. 18-422 (U.S.), and Lamone v. Benisek, No. 18-726 (U.S.), two cases pending before the Supreme Court that raised partisan gerrymandering claims. The court denied the stay and allowed discovery to proceed but rescheduled the trial to a date after which it anticipated that the Supreme Court would issue its decisions in Rucho and Lamone. Dkt. No. 42. On June 27, 2019, the Supreme Court held in Rucho v. Common Cause that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” 139 S. Ct. 2484, 2506–07 (2019). The parties thereafter moved to dismiss this case based on the Supreme
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Court’s decision. On July 2, 2019, the court dismissed the suit without prejudice for lack of jurisdiction and entered judgment the following day. On July 15, 2019, the WEC filed a Bill of Costs, requesting a total of $19,308.59 in costs, and the Assembly filed a Bill of Costs requesting $45,043.40 in costs. The Assembly also filed a motion for attorney’s fees.
ANALYSIS A. Bill of Costs
The WEC and the Assembly both request their costs associated with this litigation. The Assembly contends it is entitled to costs as a prevailing party under Rule 54(d)(1) of the Federal Rules of Civil Procedure, which states in pertinent part, “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” The Rule “codifies a venerable presumption that prevailing parties are entitled to costs.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013). Plaintiffs argue, on the other hand, and the WEC concedes, that requests for costs where, as here, a case is dismissed for lack of jurisdiction are controlled by 28 U.S.C. § 1919, which states, “Whenever any action or suit is dismissed in any district court, the Court of International Trade, or the Court of Federal Claims for want of jurisdiction, such court may order the payment of just costs.” The WEC argues that it should be awarded its costs as a matter of justice under § 1919.
We agree with Plaintiffs and the WEC that the award of costs in this case is governed by § 1919. There was no judgment on the merits; the case was dismissed for lack of jurisdiction. By its plain language, § 1919 therefore applies. We also read § 1919, as has every other court to address the issue in a decision brought to our attention, as an exception to the presumption in favor of awarding costs to the prevailing party codified in Rule 54(d)(1). See, e.g., Otay Land Co. v. United Enters. Ltd., 672 F.3d 1152, 1156 (9th Cir. 2012) (“Unlike Rule 54(d)(1), . . . a cost award
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under § 1919 does not turn on prevailing party status and lies within the sound discretion of the district court.”); Hygienics Direct Co. v. Medline Indus., Inc., 33 F. App’x 621, 625 (3d Cir. 2002) (“Because there is a statute, 28 U.S.C. § 1919, that expressly covers the situation here, i.e., dismissal for lack of subject matter jurisdiction, Rule 54(d)(1) is not applicable.”); Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1340 n.8 (10th Cir. 1998) (noting that “there is a fundamental distinction between awarding costs under § 1919, and under § 1920 and Fed. R. Civ. P. 54(d),” because § 1919 is permissive and “unlike costs awarded under Rule 54, costs awarded under § 1919 are not subject to a presumption that they shall be awarded to a prevailing party”); see also, e.g., U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., No. 94-7316, 2007 WL 4270622, at *2 (E.D. Pa. Dec. 3, 2007) (“Section 1919 is an express carve out from Rule 54(d) and § 1920 . . . .”); Ohio Cas. Ins. Co. v. Reed, No. 1:04-cv-2027-DFH-WTL, 2006 WL 3240501, at *1 n.1 (S.D. Ind. Nov. 2, 2006) (noting that “Rule 54(d) cannot serve as the basis for an award of costs because defendants are not ‘prevailing parties’ under Rule 54(d) when the action is dismissed for lack of subject matter jurisdiction” and that § 1919 would apply instead); Ericsson GE Mobile Commcn’s, Inc. v. Motorola Commcn’s & Elecs., Inc., 179 F.R.D. 328, 330 (N.D. Ala. 1998) (“Why is § 1919 controlling? Simply because this case was dismissed for lack of jurisdiction. Section 1919 was expressly and specifically designed to cover such a situation.”); Edward W. Gillen Co. v. Hartford Underwriters Ins. Co., 166 F.R.D. 25, 27 (E.D. Wis. 1996) (“The parties erroneously assert this case is controlled by Rule 54. Rather, it is governed by 28 U.S.C. 1919.”). To hold otherwise would be to read § 1919 out of existence.
Notwithstanding this authority and the plain language of the statute, the Assembly maintains that § 1919 does not displace Rule 54(d)(1) and that it is entitled to costs under Rule 54(d). The Assembly’s argument is predicated almost entirely on Marx v. General Revenue Corp.,
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568 U.S. 371 (2013). In Marx, the Supreme Court addressed the application of Rule 54(d) to the Fair Debt Collection Practices Act’s (“FDCPA”) remedial scheme. There, the district court found that Marx had failed to prove a violation of the FDCPA and awarded costs to the defendant pursuant to Rule 54(d)(1). The plaintiff moved to vacate the award of costs, arguing that § 1692k(a)(3) of the FDCPA set forth the exclusive basis for awarding costs in FDCPA cases. That section provides, in relevant part, “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” § 1692k(a)(3). Because it had not found the action was brought in bad faith, the plaintiff argued the court lacked any basis to award either attorney’s fees or costs to the defendant. The district court denied the motion, finding that § 1692k(a)(3) did not displace its discretion to award costs under Rule 54(d)(1), and the Tenth Circuit affirmed.
The Supreme Court granted certiorari to address “whether a prevailing defendant in an FDCPA case may be awarded costs where the lawsuit was not brought in bad faith and for the purpose of harassment.” 568 U.S. at 376. In other words, the issue in Marx was whether a district court retains discretion to award statutory costs to the prevailing defendant under Rule 54(d)(1), notwithstanding the provision of the FDCPA allowing an award to the defendant of reasonable attorney’s fees, as well as costs, upon a finding that the action was brought in bad faith. That, of course, is not the issue here. There is no dispute in this case that the court has discretion to award costs to the defendants; the issue here is whether Rule 54(d)(1)’s presumption in favor of costs to the prevailing party applies when a case is dismissed for lack of jurisdiction. Marx is silent on that issue. What Marx did say is that “[a] statute may limit a court’s discretion in several ways, and it need not expressly state that it is displacing Rule 54(d)(1) to do so.” Id. at 377. As the above cases
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hold, § 1919, by its plain terms, clearly displaces Rule 54(d)(1) where an action is dismissed for lack of jurisdiction. That is what occurred here. Rule 54(d)(1) thus does not apply.
There remains the question of whether an award of costs to the defendants is just. While the Seventh Circuit has not addressed what constitute “just costs” under § 1919, the Ninth Circuit has instructed that, in awarding “‘just costs’ under [Section] 1919, a district court should consider what is most fair and equitable under the totality of the circumstances.” Otay Land Co., 672 F.3d at 1157. Upon consideration of the totality of the circumstances surrounding the case, we conclude that requiring the individual Plaintiffs to pay the defendants’ costs under § 1919 would not be just. Plaintiffs brought this action to remedy what they in good faith believed was the unconstitutional diminishment of their ability to cast a vote for meaningful representation in the State Assembly. A majority of this court initially ruled in their favor. The Supreme Court vacated the court’s decision and remanded the case to allow Plaintiffs the opportunity to establish standing. Gill, 138 S. Ct. at 1934. But before Plaintiffs had the opportunity to present their evidence of standing, the Court ruled that partisan gerrymandering cases were not justiciable. In so ruling, the Court did not hold that Act 43 was lawful; in fact, the majority acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” Rucho, 139 S. Ct. at 2506, and is “incompatible with democratic principles.” Id. (quoting Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015)). Instead, the Court held that such claims present political questions beyond the reach of the federal courts. Id. at 2506–07.
It was not unreasonable for Plaintiffs to seek redress in the federal courts. Indeed, more than thirty-five years ago, a majority of the Court appeared to have held that such claims were justiciable. See Davis v. Bandemer, 478 U.S. 109 (1986). And even though eighteen years later a plurality rejected the tests for the constitutionality of districting plans that lower courts had
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attempted to apply in the meantime, see Vieth v. Jubelirer, 541 U.S. 267 (2004), the central holding of Bandemer that political gerrymandering claims may be justiciable was not overturned. Instead, interested parties and lower courts were left to continue their search for a judicially discernable and manageable standard for identifying unconstitutional partisan gerrymanders. That is what Plaintiffs sought to accomplish with this lawsuit. When the Court unequivocally held in Rucho that such claims were not justiciable, Plaintiffs immediately agreed to dismissal.
The Assembly argues that Plaintiffs unreasonably opposed the defendants’ request to stay the case after the Supreme Court granted certiorari in Rucho and Lamone and it became clear that the Court’s decision in those cases could dispose of this case too, as it ultimately did. “From that point on,” the Assembly argues, “Plaintiffs bore the risk of forging ahead with costly litigation.” Assembly Mot. for Atty’s Fees at 2, Dkt. No. 326. But this argument ignores the fact that this court, realizing time was of the essence if any remedy were to be possible before the 2020 elections, denied the defendants’ motion to stay the case entirely and instead moved the trial to commence shortly after the Court’s term would end. Plaintiffs cannot be faulted for opposing a stay which would have risked rendering their claims moot, especially where the court likewise concluded that a stay was not warranted.
To be sure, both the WEC and the Assembly incurred substantial costs in defending against Plaintiffs’ action. But Plaintiffs, or those who supported their effort, also incurred significant costs in their attempt to eliminate a practice the Court made clear it did not condone. The Assembly and the members of the WEC, sued in their official capacity and thus entitled to indemnification from the State, are in a better position to absorb those costs than the individual Plaintiffs who brought the action. Under these circumstances, we conclude that justice is best served by leaving each to bear their own costs.
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B. Motion for Attorney’s Fees The Assembly also seeks attorney’s fees pursuant to 42 U.S.C. § 1988. In an action to
enforce civil rights, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of costs . . . .” 42 U.S.C. § 1988(b). To recover attorney’s fees, the defendant must demonstrate that the “plaintiff brought this action in subjective bad faith, or that ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’” Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 227–28 (7th Cir. 1995) (quoting Christiansburg Garmet Co. v. EEOC, 434 U.S. 412, 421 (1978)). A lawsuit is frivolous “if it has no reasonable basis, whether in fact or in law.” Roger Whitmore’s Auto. Servs. v. Lake Cty., Ill., 424 F.3d 659, 675 (7th Cir. 2005) (quoting Tarkowski v. Cty. of Lake, 775 F.2d 173, 176 (7th Cir. 1985)). In this case, the court dismissed the case for lack of jurisdiction based on the Supreme Court’s decision that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Rucho, 139 S. Ct. at 2506–07. It does not follow that, because Plaintiffs’ claims were ultimately nonjusticiable, Plaintiffs’ claims were frivolous at the outset of the litigation. For the reasons explained above, an award of attorney’s fees is not warranted. Accordingly, the court denies the Assembly’s motion for attorney’s fees.
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ORDER IT IS ORDERED that the Assembly’s motion for attorney’s fees, Dkt. 326, is DENIED. The WEC and the Assembly’s requests for an award of costs, Dkt. 328 and Dkt. 330, are DENIED. Entered August 22, 2019.
BY THE COURT: /s/________________________________________ KENNETH F. RIPPLE Circuit Judge /s/________________________________________ WILLIAM C. GRIESBACH District Judge /s/________________________________________ JAMES D. PETERSON District Judge
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 Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 1 of 72
CLOSED,PROTECTIVE_ORDER
U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:15−cv−00421−jdp

Whitford, William et al v. Nichol, Gerald et al Assigned to: District Judge James D. Peterson Referred to: Magistrate Judge Stephen L. Crocker Case in other court: Seventh Circuit Court of Appeals,
19−02066 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 07/08/2015 Date Terminated: 07/03/2019 Jury Demand: None Nature of Suit: 400 State Reapportionment Jurisdiction: Federal Question

William Whitford

represented by Nicholas Odysseas Stephanopoulos University of Chicago Law School 1111 E 60th St Chicago, IL 60637 781−248−8145 Email: nsteph@uchicago.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle Law Office of Peter Earle, LLC 839 North Jefferson Street Suite 300 Milwaukee, WI 53202 414−276−1076 Email: peter@earle−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood Campaign Legal Center 73 W MONROE ST Suite 302 Chicago, IL 60603 202−560−0590 Email: rgreenwood@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless Campaign Legal Center 55 W. Monroe Street, Suite 1925 Chicago, IL 60603 (312) 312−2885 Email: aharless@campaignlegalcenter.org ATTORNEY TO BE NOTICED

Danielle Marie Lang 1411 K Street NW Suite 1400 Washington, DC 20005 202−736−2200 x211 Fax: 202−736−2222 Email: dlang@campaignlegalcenter.org ATTORNEY TO BE NOTICED

Douglas Maynard Poland Rathje & Woodward, LLC 10 East Doty Street, Ste. 507 Madison, WI 53703

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608−960−7430 Fax: (608) 441−5707 Email: dpoland@rathjewoodward.com ATTORNEY TO BE NOTICED

J. Gerald Hebert U.S. DEPARTMENT OF JUSTICE WASHINGTON, DC 20035−6128 (202) 514−6153 Email: ghebert@campaignlegalcenter.org ATTORNEY TO BE NOTICED

Lester A. Pines Pines Bach LLP 122 W. Washington Avenue, Ste. 900 Madison, WI 53703−9500 608−251−0101 Fax: 608−251−2883 Email: lpines@pinesbach.com ATTORNEY TO BE NOTICED

Mark P. Gaber Campaign Legal Center 1411 K Street NW Suite 1400 Washington, DC 20005 202−736−2200 Fax: 202−736−2222 Email: mgaber@campaignlegal.org ATTORNEY TO BE NOTICED

Michele Louise Odorizzi Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 312−701−7309 Fax: 312−706−8508 Email: modorizzi@mayerbrown.com ATTORNEY TO BE NOTICED

Paul Strauss Chicago Lawyers' Committee for Civil Rights Under Law 100 N. LaSalle St., Suite 600 Chicago, IL 60602 312−202−3649 Fax: 312−630−1127 Email: pstrauss@clccrul.org ATTORNEY TO BE NOTICED

Plaintiff Roger Anclam

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 3 of 72

ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Emily Bunting

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 4 of 72

ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Lynne Donohue

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 5 of 72

ATTORNEY TO BE NOTICED

Plaintiff Helen Harris

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Wayne Jensen

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 6 of 72

ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Wendy Sue Johnson

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 7 of 72

ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Janet Mitchell

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 8 of 72

ATTORNEY TO BE NOTICED

Plaintiff Allison Seaton

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Seaton

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 9 of 72

ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jerome Wallace

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 10 of 72

ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Donald Winter

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 11 of 72

ATTORNEY TO BE NOTICED

Plaintiff Graham Adsit

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Warren Braun

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 12 of 72

ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Hans Breitenmoser

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 13 of 72

ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Judith Brey

represented by Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brent Brigson

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 14 of 72

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sandra Carlson−Kaye

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 15 of 72

Plaintiff Guy Costello

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Timothy B. Daley

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 16 of 72

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Margaret Leslie DeMuth

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 17 of 72

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Daniel Dieterich

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 18 of 72

Plaintiff Leah Dudley

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jennifer Estrada

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 19 of 72

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barbara Flom

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 20 of 72

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gail Hohenstein

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Lecker

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 21 of 72

ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elizabeth Lentini

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 22 of 72

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Norah McCue

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 23 of 72

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deborah Patel

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jane Pedersen

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 24 of 72

ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nancy Petulla

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 25 of 72

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert Pfundheller

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 26 of 72

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sara Ramaker

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rosalie Schnick

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 27 of 72

ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ann E. Stevning−Roe

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 28 of 72

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Linea Sundstrom

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 29 of 72

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Switzenbaum

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Edward Wohl

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 30 of 72

ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED

Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED

J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED

Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED

Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED

Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED

Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ann Wolfe

represented by Nicholas Odysseas Stephanopoulos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Guyon Earle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ruth Merewyn Greenwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Annabelle Elizabeth Harless (See above for address) ATTORNEY TO BE NOTICED

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 31 of 72
Danielle Marie Lang (See above for address) ATTORNEY TO BE NOTICED
Douglas Maynard Poland (See above for address) ATTORNEY TO BE NOTICED
J. Gerald Hebert (See above for address) ATTORNEY TO BE NOTICED
Lester A. Pines (See above for address) ATTORNEY TO BE NOTICED
Mark P. Gaber (See above for address) ATTORNEY TO BE NOTICED
Michele Louise Odorizzi (See above for address) ATTORNEY TO BE NOTICED
Paul Strauss (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Gerald C. Nichol TERMINATED: 01/27/2017
Defendant Thomas Barland TERMINATED: 01/27/2017
Defendant

represented by Brian P. Keenan Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707 608−266−0020 Fax: 608−267−2223 Email: keenanbp@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony David Russomanno Wisconsin Department of Justice 17 W Main ST, PO Box 7857 Madison, WI 53707 608−267−2238 Fax: 608−267−8906 Email: russomannoad@doj.state.wi.us TERMINATED: 04/30/2019
represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019
represented by

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 32 of 72

John Franke TERMINATED: 01/27/2017

Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Defendant
Harold V. Froehlich TERMINATED: 01/27/2017

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Defendant
Kevin J. Kennedy TERMINATED: 01/27/2017

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Defendant
Elsa Lamelas TERMINATED: 01/27/2017

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Defendant
Timothy Vocke TERMINATED: 01/27/2017

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Defendant Beverly R. Gill

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Clayton P. Kawski Wisconsin Department of Justice 17 W. Main Street

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 33 of 72

P.O. Box 7857 Madison, WI 53707−7857 (608) 266−7477 Fax: (608) 267−2223 Email: kawskicp@doj.state.wi.us ATTORNEY TO BE NOTICED

Karla Z. Keckhaver Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707−7857 608−264−6365 Fax: 608−267−8906 Email: keckhaverkz@doj.state.wi.us ATTORNEY TO BE NOTICED

Defendant Julie M. Glancey

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Clayton P. Kawski (See above for address) ATTORNEY TO BE NOTICED

Karla Z. Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Defendant Ann S. Jacobs

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Clayton P. Kawski (See above for address) ATTORNEY TO BE NOTICED

Karla Z. Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Defendant
Steve King TERMINATED: 01/23/2019

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 34 of 72

Karla Z. Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Defendant
Don Millis TERMINATED: 01/23/2019

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Karla Z. Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Defendant Mark L. Thomsen

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony David Russomanno (See above for address) TERMINATED: 04/30/2019

Clayton P. Kawski (See above for address) ATTORNEY TO BE NOTICED

Karla Z. Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Defendant Jodi Jensen

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clayton P. Kawski (See above for address) ATTORNEY TO BE NOTICED

Defendant Dean Knudson

represented by Brian P. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clayton P. Kawski (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Defendant Wisconsin State Assembly

represented by Kevin Michael St. John Bell Giftos St. John LLC

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 35 of 72

5325 Wall Street Suite 2200 Madison, WI 53718 608−216−7995 Fax: 608−216−7999 Email: kstjohn@BellGiftos.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Mortara Bartlit Beck LLP 54 W. Hubbard Street Suite 300 Chicago, IL 60654 312−494−4400 Fax: 312−494−4440 Email: adam.mortara@bartlit−beck.com ATTORNEY TO BE NOTICED

Joshua Ackerman Barlit Beck LLP 54 W. Hubbard St. Chicago, IL 60654 312−494−4400 Fax: 312−494−4440 Email: joshua.ackerman@bartlit−beck.com ATTORNEY TO BE NOTICED

Taylor A. R. Meehan Bartlit Beck LLP 54 W. Hubbard Street Suite 300 Chicago, IL 60654 312−494−4400 Fax: 312−494−4440 Email: taylor.meehan@bartlitbeck.com ATTORNEY TO BE NOTICED

Third Party Defendant
Robin J. Vos Speaker

represented by Adam Mortara (See above for address) ATTORNEY TO BE NOTICED

Amicus Jowei Chen

represented by Theodore Reed Boehm Hoover Hull Turner, LLP 111 Monument Circle Suite 4400 Indianapolis, IN 46204 317−822−4400 x104 Fax: 317−822−0234 Email: tboehm@hooverhullturner.com TERMINATED: 11/16/2018

Amicus
The League of Women Voters of Wisconsin

represented by Diane Mary Welsh Pines Bach LLP 122 West Washington Avenue Ste. 900 Madison, WI 53703 608−251−0101 Fax: 608−251−2883 Email: dwelsh@pinesbach.com

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 36 of 72

TERMINATED: 09/18/2018 ATTORNEY TO BE NOTICED

Susan M. Crawford Cullen Weston Pines & Bach LLP 122 W. Washington Ave Suite 900 Madison, WI 53703 Email: scrawford@pinesbach.com TERMINATED: 10/11/2018

Amicus Stephen J. Schulhofer

represented by Stephen J. Schulhofer NYU Law School Stephen J. Schulhofer NYU Law School 40 Washington Square South New York, NY 10012 212−998−6260 Email: stephen.schulhofer@nyu.edu ATTORNEY TO BE NOTICED

Date Filed 07/08/2015
07/08/2015 07/08/2015 07/09/2015
07/09/2015 07/10/2015 07/10/2015
07/10/2015

# Docket Text
1 COMPLAINT against All Defendants. Service to be completed by Waiver of Service of Summons. ( Filing fee $ 400 receipt number 0758−1588911.), filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Illustrative Maps, # 2 Exhibit 2 − K Mayer Report, # 3 Exhibit 3 − S Jackman Report, # 4 Exhibit 4 − Secrecy Agreements) (Earle, Peter) Modified on 7/8/2015. (lak) (Additional attachment(s) added on 7/8/2015: # 5 JS−44 Civil Cover Sheet) (lak). (Entered: 07/08/2015)
Case randomly assigned to District Judge Barbara B. Crabb and Magistrate Judge Stephen L. Crocker. (voc) (Entered: 07/08/2015)
Standard attachments for Judge Barbara B. Crabb required to be served on all parties with summons or waiver of service: NORTC, Corporate Disclosure Statement, Order on Dispositive Motions. (voc) (Entered: 07/08/2015)
2 Motion to Admit Ruth Merewyn Greenwood Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1590066.) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Greenwood, Ruth) (Entered: 07/09/2015)
3 Disregard. See 5 . Modified on 7/10/2015. (lak) (Entered: 07/09/2015)
4 ** TEXT ONLY ORDER ** ORDER granting 2 Motion to Admit Ruth Merewyn Greenwood Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 7/10/2015. (lak) (Entered: 07/10/2015)
5 Motion to Admit Paul Strauss Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1590354.) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Strauss, Paul) (Entered: 07/10/2015)
6 Request for Issuance of Summons by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Request for Summons to Barland,

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 37 of 72

07/10/2015
07/10/2015 07/10/2015
07/10/2015 07/16/2015 07/20/2015 07/20/2015 07/20/2015 07/20/2015 07/20/2015 07/20/2015 07/20/2015 07/22/2015
07/24/2015 07/24/2015 08/03/2015

# 2 Request for Summons to Franke, # 3 Request for Summons to Froehlich, # 4 Request for Summons to Kennedy, # 5 Request for Summons to Lamelas, # 6 Request for Summons to Vocke) (Greenwood, Ruth) Modified on 7/13/2015. (lak) (Entered: 07/10/2015)
7 Corporate Disclosure Statement by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 07/10/2015)
8 ** TEXT ONLY ORDER ** ORDER granting 5 Motion to Admit Paul Strauss Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 7/10/2015. (kwf) (Entered: 07/10/2015)
9 Summons Issued as to Gerald C. Nichol, (Attachments: # 1 Summons Issued as to Thomas Barland, # 2 Summons Issued as to John Franke, # 3 Summons Issued as to Harold V. Froehlich, # 4 Summons Issued as to Kevin J. Kennedy, # 5 Summons Issued as to Elsa Lamelas, # 6 Summons Issued as to Timothy Vocke) (kwf) (Entered: 07/10/2015)
10 Letter from the Court to USCA Chief Judge Wood regarding three−judge court pursuant to 28 U.S.C. § 2284. (kwf) (Additional attachment added on 7/13/2015: # 1 Copy of the Complaint) (kwf) (Entered: 07/10/2015)
11 Letter from USCA Chief Judge Diane P. Wood to District Judge Barbara B. Crabb regarding three−judge court pursuant to 28 U.S.C. § 2284. (voc) (Entered: 07/16/2015)
12 Affidavit of Service by Plaintiff. Elsa Lamelas served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
13 Affidavit of Service by Plaintiff. Gerald C. Nichol served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
14 Affidavit of Service by Plaintiff. Harold V. Froehlich served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
15 Affidavit of Service by Plaintiff. John Franke served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
16 Affidavit of Service by Plaintiff. Kevin J. Kennedy served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
17 Affidavit of Service by Plaintiff. Thomas Barland served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
18 Affidavit of Service by Plaintiff. Timothy Vocke served on 7/14/2015, answer due 8/4/2015. (Strauss, Paul) (Entered: 07/20/2015)
19 Notice of Appearance filed by Michele Louise Odorizzi for Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Odorizzi, Michele) (Entered: 07/22/2015)
20 Notice of Appearance filed by Anthony David Russomanno for Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Russomanno, Anthony) (Entered: 07/24/2015)
21 Notice of Appearance filed by Brian P. Keenan for Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 07/24/2015)
22 Stipulation for Extension of Time to respond to complaint by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Attachments: # 1 Text of Proposed Order) (Keenan, Brian) (Entered: 08/03/2015)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 38 of 72

08/05/2015 08/18/2015 08/18/2015 08/19/2015 08/19/2015 08/19/2015
08/21/2015
09/08/2015 09/11/2015 09/11/2015
09/29/2015 09/29/2015 09/29/2015
10/06/2015

23 ORDER granting 22 Motion for Extension of Time to Answer. Defendants answer due 8/18/2015. Signed by District Judge Barbara B. Crabb on 8/5/2015. (voc) (Entered: 08/05/2015)
24 Notice of Motion and MOTION TO DISMISS by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) Modified on 8/18/2015. (kwf) (Entered: 08/18/2015)
25 Brief in Support of 24 Motion to Dismiss by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 08/18/2015)
Set Briefing Deadlines as to 24 Motion to Dismiss. Brief in Opposition due 9/8/2015. Brief in Reply due 9/18/2015. (kwf) (Entered: 08/19/2015)
Set Telephone Pretrial Conference: Telephone Pretrial Conference set for 9/11/2015 at 02:30 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. [Standing Order Governing Preliminary Pretrial Conference attached] (voc) (Entered: 08/19/2015)
26 Stipulated Motion to Amend Briefing Schedule on Motion to Dismiss 24 by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Attachments: # 1 Text of Proposed Order) (Earle, Peter) (Entered: 08/19/2015)
27 ** TEXT ONLY ORDER ** ORDER granting 26 Motion to Amend Briefing Schedule. The parties should not expect additional extensions of these briefing deadlines. Brief in Opposition due 9/29/2015. Brief in Reply due 10/9/2015. Signed by Magistrate Judge Stephen L. Crocker on 8/21/2015. (voc) (Entered: 08/21/2015)
28 Joint Report of Rule 26(f) Planning Meeting. (Keenan, Brian) (Entered: 09/08/2015)
Minute Entry for proceedings held before Magistrate Judge Stephen L. Crocker: Telephone Preliminary Pretrial Conference held on 9/11/2015 [:15] (skv) (Entered: 09/11/2015)
29 ** TEXT ONLY ORDER ** At a September 11, 2015 telephonic preliminary pretrial conference, the court advised the parties that it will not set a firm schedule until the three judge panel has been named. The court did, however, provide preliminary indications of the dates and deadlines it has in mind. The court will schedule a follow−up telephonic conference as soon as it is in a position to set a firm schedule. Signed by Magistrate Judge Stephen L. Crocker on 9/11/15. (jat) (Entered: 09/11/2015)
30 ORDER appointing Circuit Judge Kenneth F. Ripple and Chief District Judge William C. Griesbach, of the Eastern District of Wisconsin, as additional members of the three−judge court. Signed by District Judge Diane P. Wood, Chief Judge USCA for the seventh circuit on 9/23/2015. (voc) (Entered: 09/29/2015)
Set Telephone Hearing: Telephone Scheduling Conference set for 10/20/2015 at 02:30 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. (voc) (Entered: 09/29/2015)
31 Brief in Opposition by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 24 Motion to Dismiss filed by Gerald C. Nichol, Harold V. Froehlich, Timothy Vocke, John Franke, Elsa Lamelas, Kevin J. Kennedy, Thomas Barland. (Odorizzi, Michele) (Entered: 09/29/2015)
Telephone Scheduling Conference rescheduled from 10/20/2015 to 10/13/2015 at 02:00 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. (voc) (Entered: 10/06/2015)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 39 of 72

10/06/2015 10/09/2015 10/15/2015
10/20/2015
10/20/2015 11/04/2015
11/13/2015 11/17/2015 11/23/2015 11/23/2015 11/30/2015 11/30/2015 12/17/2015

Set/Reset Trial Deadlines/Hearings: Court Trial set for 5/23/2016 at 9:00 AM. (voc) Modified on 10/6/2015. (arw) (Entered: 10/06/2015)
32 Brief in Reply by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke in Support of 24 Motion to Dismiss. (Keenan, Brian) (Entered: 10/09/2015)
33 Pretrial Conference Order − Oral Argument on Motion to Dismiss 24 set for 11/4/2015 at 01:30 PM before the Three Judge Panel. Dispositive Motions due 1/4/2016. Final Pretrial Submissions due 4/25/2016. Joint Pretrial Statement and Each Party's Statement of Facts with Proposed Special Verdict Form due 5/9/2016. Trial Brief and Five Complete sets of Pre−marked Trial Exhibits due 5/16/2016. Court Trial set for 5/23/2016 at 09:00 AM before the Three Judge Panel. Signed by Magistrate Judge Stephen L. Crocker on 10/15/15. (jat) (Entered: 10/15/2015)
34 Motion to Admit Annabelle Elizabeth Harless Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1667806.) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Harless, Annabelle) (Entered: 10/20/2015)
35 ** TEXT ONLY ORDER ** ORDER granting 34 Motion to Admit Annabelle Elizabeth Harless Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 10/20/2015. (lak) (Entered: 10/20/2015)
36 Minute Entry for proceedings held before District Judge Barbara B. Crabb, Circuit Judge Kenneth F. Ripple and Chief District Judge William C. Griesbach: Oral Argument Hearing held on 11/4/2015 re 24 MOTION TO DISMISS filed by defendants Gerald C. Nichol, Harold V. Froehlich, Timothy Vocke, John Franke, Elsa Lamelas, Kevin J. Kennedy, Thomas Barland [1:02] (Court Reporter LS.) (voc) (Entered: 11/04/2015)
37 Transcript of Motion Hearing, held 11/4/2015 before Judge Kenneth Ripple, Judge Barbara B. Crabb and Judge William Griesbach. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (voc) (Entered: 11/13/2015)
38 ORDER: Parties may have until November 23, 2015, to file supplemental, simultaneous briefs on the question of standing. They may have until November 30, 2015, to file responses to the other side's brief. Signed by District Judge Barbara B. Crabb, District Judge William C. Griesbach, and Circuit Judge Kenneth F. Ripple on 11/17/15. (jat) (Entered: 11/17/2015)
39 Defendant's Supplement to 24 Motion to Dismiss filed by Gerald C. Nichol, Harold V. Froehlich, Timothy Vocke, John Franke, Elsa Lamelas, Kevin J. Kennedy, Thomas Barland. (Russomanno, Anthony) Modified on 11/23/2015. (lak) (Entered: 11/23/2015)
40 Plaintiff's Supplement to 24 Motion to Dismiss filed by Gerald C. Nichol, Harold V. Froehlich, Timothy Vocke, John Franke, Elsa Lamelas, Kevin J. Kennedy, Thomas Barland. (Odorizzi, Michele) Modified on 11/24/2015. (lak) (Entered: 11/23/2015)
41 Reply by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 24 Motion to Dismiss. (Plaintiffs' Reply to Defendants' Supplemental Brief on Standing.) (Odorizzi, Michele) Modified on 12/1/2015. (lak) (Entered: 11/30/2015)
42 Reply by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 24 Motion to Dismiss. (Response Brief on Standing.) (Keenan, Brian) Modified on 12/1/2015. (lak) (Entered: 11/30/2015)
43 ORDER denying 24 Motion to Dismiss by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 40 of 72

12/30/2015 01/04/2016 01/04/2016 01/04/2016 01/04/2016 01/04/2016
01/04/2016 01/05/2016 01/05/2016 01/05/2016 01/05/2016

Vocke. Signed by District Judge Barbara B. Crabb on 12/17/2015. (voc) (Entered: 12/17/2015)
44 ANSWER by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 12/30/2015)
45 MOTION FOR SUMMARY JUDGMENT by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. Brief in Opposition due 1/25/2016. Brief in Reply due 2/4/2016. (Keenan, Brian) (Entered: 01/04/2016)
46 Brief in Support of 45 Motion for Summary Judgment, by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 01/04/2016)
47 Proposed Findings of Fact filed by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 45 Motion for Summary Judgment. (Keenan, Brian) (Entered: 01/04/2016)
48 Disregard. See 55 . Modified on 1/5/2016. (lak) (Entered: 01/04/2016)
49 Declaration of Brian Keenan filed by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 45 Motion for Summary Judgment, (Attachments: # 1 Exhibit 100 − Mayer Deposition Transcript (Also see 52 .), # 2 Exhibit 101 − Jackman Deposition Transcript (Also see 53 .), # 3 Exhibit 102 − GAB 2012 Fall General Election Results, # 4 Exhibit 103 − Mayer Deposition Exhibit 5, # 5 Exhibit 104 − Mayer Deposition Exhibit 7, # 6 Exhibit 105 − Mayer Deposition Exhibit 8, # 7 Exhibit 106 − GAB 2014 Fall General Election Results, # 8 Exhibit 107 − Mayer Deposition Exhibit 10, # 9 Exhibit 108 − GAB 2008 Fall General Election Results, # 10 Exhibit 109 − GAB 2010 Fall General Election Results, # 11 Exhibit 110 − GAB 2012 Recall Election Results, # 12 Exhibit 111 − Expert Report of K. Mayer (Also see 54 .), # 13 Exhibit 112 − Chen and Rodden article, # 14 Exhibit 113 − Page 203 from Michael J. Dubin book) (Keenan, Brian) Modified on 1/5/2016. (lak) (Entered: 01/04/2016)
50 Declaration of Nicholas Goedert filed by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 45 Motion for Summary Judgment, (Attachments: # 1 Exhibit − Goedert Expert Report & CV (Also see 51 . (Keenan, Brian) Modified on 1/5/2016. (lak) (Entered: 01/04/2016)
51 Expert Report of Nicholas Goedert by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke, (Attachments: # 1 Exhibit − Goedert CV) (Keenan, Brian) Modified on 1/5/2016. (lak) (Entered: 01/05/2016)
52 Deposition of Kenneth Mayer taken on 11/9/15. (Attachments: # 1 Exhibit 5 of Mayer Deposition, # 2 Exhibit 7 of Mayer Deposition, # 3 Exhibit 8 of Mayer Deposition, # 4 Exhibit 10 of Mayer Deposition) (Keenan, Brian) (Entered: 01/05/2016)
53 Deposition of Simon Jackman taken on 11/20/15. (Keenan, Brian) (Entered: 01/05/2016)
54 Expert Report of Kenneth Mayer by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) Modified on 1/5/2016: Exhibits/Annex are not attached separately. (lak) (Entered: 01/05/2016)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 41 of 72

01/05/2016
01/15/2016 01/22/2016 01/22/2016
01/22/2016

55 Declaration of Sean Trende filed by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 45 Motion for Summary Judgment, (Attachments: # 1 Exhibit 1 − CV, # 2 Exhibit 2 − Sources, # 3 Exhibit 3 − Alabama 1952, # 4 Exhibit 4 − Los Angeles 1958, # 5 Exhibit 5 − Georgia 1992, # 6 Exhibit 6 − Illinois 1946, # 7 Exhibit 7 − North Carolina 1790, # 8 Exhibit 8 − North Carolina 1992, # 9 Exhibit 9 − Dallas 1992, # 10 Exhibit 10 − Wisconsin 1854, # 11 Exhibit 11 − Wisconsin 1900, # 12 Exhibit 12 − Wisconsin 2002) (Keenan, Brian) Modified on 1/5/2016. (lak) (Entered: 01/05/2016)
56 AMENDED ANSWER by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) Modified on 1/18/2016. (lak) (Entered: 01/15/2016)
57 Declaration of Peter Guyon Earle filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment, (Attachments: # 1 Exhibit A − Stephanopoulos Electoral Exceptionalism, # 2 Exhibit B − Katz Documenting Discrimination in Voting− Judicial Findings Under Sec (Part 1 of 2), # 3 Exhibit B − Katz Documenting Discrimination in Voting− Judicial Findings Under Sec (Part 2 of 2), # 4 Exhibit C − GOP redistricting maps make dramatic changes, # 5 Exhibit D − Issacharoff Political Cartels, # 6 Exhibit E − Pildes Political Competition, # 7 Exhibit F − Stein and Marley book, # 8 Exhibit G − Trende dataset2 csv) (Odorizzi, Michele) Modified on 1/25/2016: Clarified exhibit descriptions. (lak) (Entered: 01/22/2016)
58 Declaration of Simon David Jackman filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment, (Attachments: # 1 Exhibit A − S. Jackman Report July 7 2015 (Also see 62 .), # 2 Exhibit B − Jackman Vita, # 3 Exhibit C − Jackman Rebuttal Report (Also see 63 .), # 4 Exhibit D − Sensitivity Testing Reliance Material, # 5 Exhibit E − Excerpted Klarner Data, # 6 Exhibit F − Party Control Data, # 7 Exhibit G − McGhee Measuring Partisan Bias, # 8 Exhibit H − Fifield Automated Redistricting, # 9 Exhibit I − Gelman and King Estimating the Consequences, # 10 Exhibit J − Cox and Katz Salamander, # 11 Exhibit K − Cain Assessing Partisan Bias) (Odorizzi, Michele) Modified on 1/25/2016: Clarified exhibit descriptions. (lak) (Entered: 01/22/2016)
59 Declaration of Kenneth Mayer filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment, (Attachments: # 1 Exhibit A − Mayer CV, # 2 Exhibit B − Mayer Rebuttal Report (Also see 64 .), # 3 Exhibit C − Glaeser Myths and Realities, # 4 Exhibit D − Glaeser and Vigdor Segregated Century, # 5 Exhibit E − Chung Racial Ethnic Sorting) (Odorizzi, Michele) Modified on 1/25/2016: Clarified exhibit descriptions. (lak) (Entered: 01/22/2016)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 42 of 72

01/22/2016 01/22/2016 01/25/2016 01/25/2016 01/25/2016 01/25/2016
01/25/2016 01/25/2016 01/25/2016
01/25/2016 01/26/2016 01/26/2016 01/26/2016

60 Disregard. See 65 for condensed version. Modified on 1/26/2016. (lak) (Entered: 01/22/2016)
61 Disregard. See 66 for condensed version. Modified on 1/26/2016. (lak) (Entered: 01/22/2016)
62 Expert Report of Simon David Jackman by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Odorizzi, Michele) (Entered: 01/25/2016)
63 Expert Report of Simon David Jackman (Rebuttal) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Odorizzi, Michele) (Entered: 01/25/2016)
64 Expert Report of Kenneth Mayer (Rebuttal) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Odorizzi, Michele) (Entered: 01/25/2016)
65 Deposition of Nicholas Goedert taken on 12/15/15, (Attachments: # 1 Exhibit − Fryer & Holden Measuring Compactness, article attached, # 2 Exhibit − Goedert, Gerrymandering or Geography, # 3 Exhibit − Goedert, Case of Disappearing Bias, # 4 Exhibit − Keith Gaddie April 17, 2011 Memo) (Odorizzi, Michele) (Entered: 01/25/2016)
66 Deposition of Sean P. Trende taken on 12/14/15. (Odorizzi, Michele) (Entered: 01/25/2016)
67 Response to Proposed Findings of Fact filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment. (Odorizzi, Michele) Modified on 1/26/2016. (lak) (Entered: 01/25/2016)
68 Brief in Opposition by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment, filed by Gerald C. Nichol, Harold V. Froehlich, Timothy Vocke, John Franke, Elsa Lamelas, Kevin J. Kennedy, Thomas Barland. (Odorizzi, Michele) (Entered: 01/25/2016)
69 Additional Proposed Findings of Fact filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment. (Odorizzi, Michele) Modified on 1/26/2016. (lak) (Entered: 01/25/2016)
70 Motion in Limine to Exclude The Testimony of Sean P. Trende by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Odorizzi, Michele) (Entered: 01/26/2016)
71 Brief in Support of 70 Motion in Limine to Exclude The Testimony of Sean P. Trende by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Odorizzi, Michele) (Entered: 01/26/2016)
72 Declaration of Annabelle Elizabeth Harless filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 70 Motion in Limine, (Attachments: # 1 Exhibit A − D.M. Smith & W.N. Venables, Introduction to R, # 2 Exhibit B − Trende "Wisconsin_clustering_computation.R" file, # 3 Exhibit C − Gelman & King, Unified Method,

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02/03/2016 02/04/2016 02/04/2016 02/04/2016 02/04/2016 02/05/2016 02/10/2016 02/16/2016
02/16/2016
02/22/2016 03/17/2016 03/17/2016 03/17/2016

# 4 Exhibit D − Friedman & Holden, Optimal Gerrymandering, # 5 Exhibit E − Anselin, Local Indicators of Spatial Association, # 6 Exhibit F − Tam Cho, Contagion Effects, # 7 Exhibit G − Reardon & O'Sullivan, Measures of Spatial Segregation, # 8 Exhibit H − Denton & Massey, Hypersegregation) (Odorizzi, Michele) (Entered: 01/26/2016)
Set Briefing Deadline as to 70 Motion in Limine to Exclude The Testimony of Sean P. Trende. Brief in Opposition due 2/16/2016. Brief in Reply due 2/22/2016. (voc) (Entered: 02/03/2016)
73 Brief in Reply by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke in Support of 45 Motion for Summary Judgment. (Keenan, Brian) (Entered: 02/04/2016)
74 Reply in Support of Proposed Findings of Fact filed by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 45 Motion for Summary Judgment. (Keenan, Brian) (Entered: 02/04/2016)
75 Disregard. See 76 . Modified on 2/5/2016. (lak) (Entered: 02/04/2016)
76 Response to Proposed Findings of Fact filed by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 45 Motion for Summary Judgment. (Keenan, Brian) Modified on 2/5/2016. (lak) (Entered: 02/04/2016)
Set Oral Argument: Oral Argument on 45 Motion for Summary Judgment and 70 Motion in Limine to Exclude The Testimony of Sean P. Trende set for 3/23/2016 at 9:30 AM in Courtroom 250 before the Three Judge Panel. (kwf) (Entered: 02/05/2016)
77 Notice of Appearance filed by Douglas Maynard Poland for Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Poland, Douglas) (Entered: 02/10/2016)
78 Brief in Opposition by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 70 Motion in Limine, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, William Whitford, Janet Mitchell, Wendy Sue Johnson, Mary Lynn Donohue, Roger Anclam (Keenan, Brian) (Entered: 02/16/2016)
79 Reply in Support of Proposed Findings of Fact filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 45 Motion for Summary Judgment. (Reply to Defendants' Response to Plaintiffs' Additional Proposed Findings of Fact in Opposition to Defendants' Motion For Summary Judgment, Document #76.) (Odorizzi, Michele) Modified on 2/17/2016. (lak) (Entered: 02/16/2016)
80 Brief in Reply by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter in Support of 70 Motion in Limine. (Odorizzi, Michele) (Entered: 02/22/2016)
81 Motion to Admit Theodore Reed Boehm Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1769797.) by Amicus Jowei Chen. Motions referred to Magistrate Judge Stephen L. Crocker. (Boehm, Theodore) (Entered: 03/17/2016)
82 Motion for Leave to File Amicus Brief by Amicus Jowei Chen, (Attachments: # 1 Jowei Chen Proposed Amicus Brief (See 84 for Amended Brief.), # 2 Exhibit A − Jowei Chen Analysis) (Boehm, Theodore) Modified on 3/17/2016. (lak) (Entered: 03/17/2016)
83 ** TEXT ONLY ORDER ** ORDER granting 81 Motion to Admit Theodore Reed Boehm Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 3/17/2016. (lak) (Entered: 03/17/2016)

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03/17/2016 03/17/2016 03/23/2016 03/24/2016 03/25/2016 03/25/2016 03/28/2016
03/29/2016 03/29/2016
03/30/2016 04/07/2016
04/18/2016 04/19/2016

84 Exhibit (Amended Proposed Amicus Brief) to 82 Motion for Leave to File filed by Jowei Chen. (Boehm, Theodore) Modified on 3/17/2016. (lak) (Entered: 03/17/2016)
85 ORDER denying 82 Motion for Leave to File Amicus Brief by Amicus Jowei Chen. Signed by District Judge Barbara B. Crabb on 3/17/2016. (voc) (Entered: 03/17/2016)
86 Minute Entry for proceedings held before District Judge Barbara B. Crabb, Circuit Judge Kenneth F. Ripple and Chief District Judge William C. Griesbach: Oral Argument Hearing held on 3/23/2016 re 45 Motion for Summary Judgement by defendants. [2:12] (Court Reporter LS.) (voc) (Entered: 03/23/2016)
87 Notice of Change of Address by Annabelle Elizabeth Harless. (Harless, Annabelle) (Entered: 03/24/2016)
88 Notice of Change of Address by Ruth Merewyn Greenwood. (Greenwood, Ruth) (Entered: 03/25/2016)
89 Transcript of Motion Hearing, held 3/23/2016 before Judge Kenneth Ripple, Judge Barbara B. Crabb and Judge William Griesbach. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (voc) (Entered: 03/25/2016)
90 Motion to Admit Danielle Marie Lang Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1777935.) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Lang, Danielle) (Entered: 03/28/2016)
91 ** TEXT ONLY ORDER ** ORDER granting 90 Motion to Admit Danielle Marie Lang Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 3/29/2016. (lak) (Entered: 03/29/2016)
92 Motion to Admit J. Gerald Hebert Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1779009.) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Hebert, J. Gerald) (Entered: 03/29/2016)
93 ** TEXT ONLY ORDER ** ORDER granting 92 Motion to Admit J. Gerald Hebert Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 3/30/2016. (lak) (Entered: 03/30/2016)
94 ORDER: IT IS ORDERED that The motion for summary judgment filed by defendants Gerald C. Nichol, Thomas Barland, John Franke, Harold V. Froehlich, Elsa Lamelas, Timothy Vocke and Kevin J. Kennedy, dkt. # 45 , is DENIED. The motion filed by plaintiffs William Whitford, Roger Anclam, Emily Bunting,Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, James Seaton, Allison Seaton, Jerome Wallace and Don Winter to exclude the opinions of Sean Trende, dkt. # 70 , is DENIED WITHOUT PREJUDICE to plaintiffs' refiling it at the conclusion of trial. Trial will begin on Tuesday, May, 24, 2016 and should be completed by Friday, May 27, 2016. If the parties believe that is not a sufficient amount of time, they should explain their concerns in writing no later than April 18, 2016. Signed by Circuit Judge Kenneth F. Ripple, District Judge Barbara B. Crabb and District Judge William C. Griesbach on 4/7/2016. (voc) (Entered: 04/07/2016)
95 Amended Expert Report of Kenneth Mayer (Rebuttal), Updated March 31, 2016, by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 04/18/2016)
96 Stipulation Regarding Authenticity of Documents Recovered from Three Legislative Redistricting Computers by Mark Lanterman of CFS as Part of Stipulation Regarding 30(b)(6) Depositions of the Legislative Technology Services Bureau, Wisconsin State Senate, and Wisconsin State Assembly by Plaintiffs Roger Anclam, Emily Bunting,

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04/19/2016 04/19/2016
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Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Harless, Annabelle) Modified on 4/20/2016: Clarified docket text, etc. (lak) (Entered: 04/19/2016)
97 Declaration of Mark Lanterman filed by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter re: 96 Stipulation, (Attachments: # 1 Exhibit A − CV for Mark Lanterman, # 2 Exhibit B and Exhibit C − DVD of files referenced by Mark Lanterman. Hard copy will be hand−delivered to the clerk.) (Greenwood, Ruth) Modified on 4/20/2016. (lak) (Entered: 04/19/2016)
98 Second Deposition of Simon Jackman taken on 3/16/16. (Attachments: # 1 Exhibit − Jackman Rebuttal Report (Also see 63 .), # 2 Exhibit − Dataset email from Mr. Stephanopolous, # 3 Exhibit − Datasets, # 4 Exhibit − Fifield et al Article, # 5 Exhibit − Fryer and Holden Article, # 6 Exhibit − Email from Mr. Stephanopolous, # 7 Exhibit − Uniform Swing, # 8 Exhibit − Invoice) (Keenan, Brian) Modified on 4/20/2016: Attachment 4 replaced on 4/20/2016 so that pages 24 and 26 were right side up. (lak) (Entered: 04/19/2016)
99 Second Deposition of Kenneth Mayer taken on 3/30/16. (Attachments: # 1 Exhibit − Professor Mayer Rebuttal Report (Also see 64 .), # 2 Exhibit − Email from Mr. Stephanopolous, # 3 Exhibit − Myths and Realities of American Political Geography, # 4 Exhibit − Chart Labeled Act 43, # 5 Exhibit − Chart Labeled Inc Calcs My Plan, # 6 Exhibit − Chart Labeled EG act 43 With Inc, # 7 Exhibit − Chart Labeled EG With Inc, # 8 Exhibit − Chart Labeled Incumbents, # 9 Exhibit − Invoices) (Keenan, Brian) Modified on 4/20/2016. (lak) (Entered: 04/19/2016)
100 Rule 26(a)(3) Pretrial Disclosures by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 04/25/2016)
101 Rule 26(a)(3) Pretrial Disclosures by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Exhibit 1 − Deposition Designations, # 2 Exhibit 2 − Exhibit List (To be refiled on the court's form.), # 3 Exhibit 3 − Exhibit List) (Harless, Annabelle) Modified on 4/26/2016. (lak) (Entered: 04/25/2016)
102 Exhibit List by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Harless, Annabelle) (Entered: 04/26/2016)
103 Exhibit List by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 04/28/2016)
104 Motion to Allow Witness Trial Testimony in Open Court by Contemporaneous Transmission from a Different Location by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Poland, Douglas) (Entered: 05/02/2016)
105 Deposition of Jeffrey Ylvisaker taken on April 29, 2013. (Attachments: # 1 Exhibit 1 − Subpoena for Wisconsin State Senate,

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# 2 Exhibit 2 − Computer chart created by the witness, # 3 Exhibit 3 − Subpoena for the Wisconsin State Assembly, # 4 Exhibit 4 − Subpoena for the Legislative Technology Services Bureau, # 5 Exhibit 5A − Documents brought by the witness (1 of 3), # 6 Exhibit 5B − Documents brought by the witness (2 of 3), # 7 Exhibit 5C − Documents brought by the witness (3 of 3), # 8 Exhibit 6 − Declaration of Jeffrey Ylvisaker, # 9 Exhibit 7 − Email from Peter Earle to Eric McLeod, Daniel Kelly) (Harless, Annabelle) (Entered: 05/02/2016)
106 Deposition of Jeffrey Ylvisaker taken on March 11, 2016. (Attachments: # 1 Exhibit 46 − Subpoena, # 2 Exhibit 49 − Email dated 4/10/12, # 3 Exhibit 50 − Chart created by the witness, # 4 Exhibit 50 − LTSB configuration item (Page 12 is upside down.), # 5 Exhibit 51 − Privilege log, # 6 Exhibit 53 − WRK32586 Responsive spreadsheets file detail report, # 7 Exhibit 54 − WRK32586 External HD Responsive spreadsheets file detail report, # 8 Exhibit 55A − WRK32587 Responsive spreadsheets file detail report (1 of 3), # 9 Exhibit 55B − WRK32587 Responsive spreadsheets file detail report (2 of 3), # 10 Exhibit 55C − WRK32587 Responsive spreadsheets file detail report (3 of 3)) (Harless, Annabelle) Modified on 5/3/2016: Corrected typo, etc. (lak) (Entered: 05/02/2016)
107 Deposition of Ronald Keith Gaddie taken on January 20, 2012. (Attachments: # 1 Exhibit 56 − Subpoena, # 2 Exhibit 57 − Flash drive produced by Professor Gaddie, # 3 Exhibit 58 − Rebuttal report of Professor Gaddie, 1/13/12, # 4 Exhibit 59 − Defendants Answer to Plaintiffs Complaint in Baldus, # 5 Exhibit 60 − Rule 26 expert rebuttal report of Professor Ken Mayer, # 6 Exhibit 61 − Sealed documents printed from original flash drive produced at deposition by Professor Gaddie, # 7 Exhibit 62 − Email chain between Professor Gaddie and Jim Troupis re: Gaddie this week and next, # 8 Exhibit 63 − Professor Gaddie's notes, # 9 Exhibit 64 − Email chain between Joe Handrick and Jim Troupis re: Memo, # 10 Exhibit 65 − Email chain between Professor Gaddie and Jim Troupis re: Current address, # 11 Exhibit 66 − Letter/consulting services agreement from Eric McLeod to Professor Gaddie, # 12 Exhibit 67 − Email chain between Professor Gaddie and Joe Handrick re: Milwaukee County elections, # 13 Exhibit 68 − Email from Professor Gaddie to Eric McLeod with invoice 5/8/11, # 14 Exhibit 69 − Email from Professor Gaddie to Eric McLeod 5/9/11, # 15 Exhibit 70 − Email from Professor Gaddie to Eric McLeod with invoice 6/3/11, # 16 Exhibit 71 − Emails between Adam Foltz, Professor Gaddie, Jim Troupis, Eric McLeod, Tad Ottman, Joe Handrick, # 17 Exhibit 72 − Chart labeled "Milwaukee_Gaddie_4_16_11_V1_B", # 18 Exhibit 73 − Email chain between Adam Foltz, Tad Ottman, Eric McLeod, Jim Troupis, Raymond Taffora re: Wisconsin Hispanic Districts, # 19 Exhibit 74 − Email chain between Professor Gaddie and Jim Troupis re: Must talk today if possible, # 20 Exhibit 75 − Emails between Professor Gaddie and Jim Troupis and Professor Gaddie and Tad Ottman re: revised timing, # 21 Exhibit 76 − Emails between Professor Gaddie and Jim Troupis, Tad Ottman re: revised timing with attached documents, # 22 Exhibit 77 − Email chain between Professor Gaddie and Jim Troupis re: revised timing, # 23 Exhibit 78 − Email from Professor Gaddie to Eric McLeod with invoice 7/29/11, # 24 Exhibit 79 − 11/10/11 Memo − Census blocks conflicting with municipal boundaries, # 25 Exhibit 80 − 1/13/12 Memo − Redistricting anomalies, # 26 Exhibit 81 − Facebook exchanges between Professor Gaddie and Joe Handrick) (Harless, Annabelle) Modified on 5/3/2016. (lak) (Entered: 05/02/2016)

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108 Deposition of Ronald Keith Gaddie taken on March 9, 2016. (Attachments: # 1 Exhibit 30 − Notice of deposition, # 2 Exhibit 31 − Flash drive produced by Professor Gaddie, # 3 Exhibit 35 − Gaddie retention letter 4/11/11, # 4 Exhibit 36 − Memo written by Professor Gaddie, # 5 Exhibit 38 − Photos of three legislative computer hard drives, # 6 Exhibit 39 − Plan comparisons spreadsheets, # 7 Exhibit 40 − MILWAUKEE_GADDIE_4_16_11_V1_B, # 8 Exhibit 41 − MILWAUKEE_GADDIE_4_16_11_V1_B, # 9 Exhibit 42 − Email chain between Professor Gaddie and Joe Handrick, forwarded to Adam Foltz and Tad Ottman, # 10 Exhibit 43 − Team map spreadsheet) (Harless, Annabelle) Modified on 5/3/2016. (lak) (Entered: 05/02/2016)
109 Deposition of Adam Foltz taken on December 21, 2011. (Attachments: # 1 Exhibit 23 − Subpoena, # 2 Exhibit 24 − Documents produced by Adam Foltz in response to subpoena, # 3 Exhibit 25 − Document produced by Adam Foltz, # 4 Exhibit 26 − DVD produced by Adam Foltz with documents responsive to subpoena, # 5 Exhibit 27 − DVD identified by Adam Foltz as statewide database, # 6 Exhibit 28 − Order dated December 8, 2011, # 7 Exhibit 29 − Order dated December 20, 2011, # 8 Exhibit 30 − 12/13/11 expert report of Professor Gaddie, # 9 Exhibit 31 − Expert report of John Diez/Magellan Strategies, 12/14/11) (Harless, Annabelle) (Entered: 05/02/2016)
110 Deposition of Adam Foltz taken on February 1, 2012. (Attachments: # 1 Exhibit 100 − Memo to Representative Gary Bies, # 2 Exhibit 101 − Breakdown of regions, # 3 Exhibit 102 − Email from Andy Speth 6/14/11, # 4 Exhibit 103 − Email from Andy Speth 6/15/11, # 5 Exhibit 104 − Email from Andy Speth 6/21/11, # 6 Exhibit 105 − Foltz 001043 − 001044, # 7 Exhibit 106 − Email from Andrew Welhouse, # 8 Exhibit 107 − Foltz 001046 − 001047, # 9 Exhibit 110 − Packet of emails, # 10 Exhibit 111 − Comparison of Assembly districts, # 11 Exhibit 112 − Census data and partisan information, # 12 Exhibit 113 − General talking points, # 13 Exhibit 114 − Metadata document) (Harless, Annabelle) (Entered: 05/02/2016)
111 Deposition of Adam Foltz taken on April 30, 2013(30(b)(6) deposition). (Attachments: # 1 Exhibit 29 − Third declaration of Mark Lanterman) (Harless, Annabelle) (Entered: 05/02/2016)
112 Deposition of Adam Foltz taken on April 30, 2013. (Attachments: # 1 Exhibit 1 − Subpoena, # 2 Exhibit 2 − Declaration of Adam Foltz, # 3 Exhibit 3 − Supplemental Declaration) (Harless, Annabelle) Modified on 5/3/2016. (lak) (Entered: 05/02/2016)
113 Deposition of Adam Foltz taken on March 31, 2016. (Attachments: # 1 Exhibit 73 − Subpoena, # 2 Exhibit 74 − Flash drive produced by Adam Foltz, # 3 Exhibit 78 − Defendants Rule 26(a)(1) disclosures, # 4 Exhibit 79 − Baldus opinion 3/22/12, # 5 Exhibit 80 − Transcript of 3/26/16 motion hearing, # 6 Exhibit 81 − Memo prepared by Professor Gaddie, # 7 Exhibit 82 − Email chain between Professor Gaddie and Joe Handrick, forwarded to Tad Ottman and Adam Foltz 4/20/11, # 8 Exhibit 83 − Lanterman amended declaration and DVD) (Harless, Annabelle) (Entered: 05/02/2016)
114 Deposition of Tad Ottman taken on December 22, 2011. (Attachments: # 1 Exhibit 33 − Documents produced in response to subpoena/privilege log,

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# 2 Exhibit 33A − Documents produced by the witness, # 3 Exhibit 34 − DVD identified by Tad Ottman as responsive to subpoena, # 4 Exhibit 35 − Letter dated 12/13/11 from Douglas Poland to Tad Ottman with enclosures, # 5 Exhibit 36 − Email from Tad Ottman to Ray Taffora, Adam Foltz, Eric McLeod) (Harless, Annabelle) (Entered: 05/02/2016)
115 Deposition of Tad Ottman taken on February 2, 2012. (Attachments: # 1 Exhibit 117 − Ottman 000095 − 000096, # 2 Exhibit 118 − Ottman 000117 − 000120, # 3 Exhibit 119 − Email from Leah Vukmir, # 4 Exhibit 120 − Ottman 000144, # 5 Exhibit 121− Talking points memo, # 6 Exhibit 122 − Ottman 000145 − 000161, # 7 Exhibit 123 − Confidentiality Agreement with Republican State Senators, # 8 Exhibit 124 − Confidentiality agreement with Republican Assembly members, # 9 Exhibit 128 − Outline for Tad Ottman testimony) (Harless, Annabelle) (Entered: 05/02/2016)
116 Deposition of Tad Ottman taken on April 29 and 30, 2013. (Attachments: # 1 Exhibit 8 − List of paid staff of Senator Fitzgerald, # 2 Exhibit 9 − June 6 and 7, 2011 emails, # 3 Exhibit 10 − Confidentiality and nondisclosure document, # 4 Exhibit 11A − Emails produced 10/16/12 (1 of 4), # 5 Exhibit 11B − Emails produced 10/16/12 (2 of 4), # 6 Exhibit 11C − Emails produced 10/16/12 (3 of 4), # 7 Exhibit 11D − Emails produced 10/16/12 (4 of 4), # 8 Exhibit 12A − Documents related to SB 150 (1 of 3), # 9 Exhibit 12B − Documents related to SB 150 (2 of 3), # 10 Exhibit 12C − Documents related to SB 150 (3 of 3), # 11 Exhibit 13 − January 10, 2012 letter with attachments, # 12 Exhibit 14 − January 11, 2012 letter, # 13 Exhibit 15 − June 30, 2011 emails, # 14 Exhibit 16 − July 5, 2011 email with attachment, # 15 Exhibit 17 − July 8, 2011 emails, # 16 Exhibit 20 − October 7 and 10, 2011 emails, # 17 Exhibit 21 − March 1, 2012 letter with attachment, # 18 Exhibit 22 − March 5, 2012 letter with attachment, # 19 Exhibit 23 − March 8, 2012 letter, # 20 Exhibit 24 − March 13, 2012 letter with attachment, # 21 Exhibit 25 − March 15, 2012 letter, # 22 Exhibit 26 − March 16 and 17, 2012 emails, # 23 Exhibit 27 − June 13, 2012 letter, # 24 Exhibit 28 − July 27, 2010 letter) (Harless, Annabelle) (Entered: 05/02/2016)
117 Deposition of Tad Ottman taken on April 30, 2013. (Attachments: # 1 Exhibit 1 − Subpoena, # 2 Exhibit 2 − Declaration of Tad Ottman) (Harless, Annabelle) (Entered: 05/02/2016)
118 Deposition of Tad Ottman taken on March 31, 2016. (Attachments: # 1 Exhibit 84 − Subpoena, # 2 Exhibit 85 − Flash drive and DVD produced by Tad Ottman, # 3 Exhibit 89 − GOP Seats Senate.docx) (Harless, Annabelle) (Entered: 05/02/2016)
119 Deposition of Joseph Handrick taken on December 20, 2011. (Attachments: # 1 Exhibit 1 − 12/13/11 letter to Joseph Hanadrick from Doug Poland with subpoena, # 2 Exhibit 2 − Packet of documents produced by Joseph Handrick, # 3 Exhibit 2A − Population totals, # 4 Exhibit 3 − DVD labeled "Joe Handrick Draft Maps − Block Assignments", # 5 Exhibit 4 − 2/15/11 letter to Don M. Millis anad Joseph Handrick from Eric McLeod, # 6 Exhibit 5 − 2/17/11 letter to Eric McLeod from Don Millis, # 7 Exhibit 6 − 2/18/11 letter to Eric McLeod from Don Millis, # 8 Exhibit 7 − Bio of Joseph Handrick, # 9 Exhibit 8 − Joe Handrick lobbyist license,

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# 10 Exhibit 9 − Excerpts from the book Born to Run by Keith Gaddie, # 11 Exhibit 10 − Defendants Amended Initial Rule 26(a)(1) dislcosures, # 12 Exhibit 14 − Chapter 801.17, Commencement of action and venue, # 13 Exhibit 15 − Chapter 751, Supreme Court, # 14 Exhibit 18 − Letter to Kathleen Madden from Joseph Louis Olson with attached summons and complaint, # 15 Exhibit 19 − Transcript of joint public hearing on redidstricting 7/13/11) (Harless, Annabelle) (Entered: 05/02/2016)
120 Deposition of Joseph Handrick taken on February 1, 2012. (Attachments: # 1 Exhibit 88 − Letter dated 1/10/12, # 2 Exhibit 89 − Letter dated 1/11/12, # 3 Exhibit 90 − Summary core constituency report, # 4 Exhibit 91 − Series of emails between Joseph Handrick and Jim Troupis, # 5 Exhibit 92 − Series of emails between Jim Troupis and Joseph Handrick, # 6 Exhibit 93 − Series of emails between Joseph Handrick and Tad Ottman, # 7 Exhibit 94 − Emails between Joe Handrick and Jim Troupis re: retention, # 8 Exhibit 95 − Emails between Joseph Handrick and Tad Ottman re: contract, # 9 Exhibit 98 − Printout of a menu disk, # 10 Exhibit 99 − Email series re: In case you missed this) (Harless, Annabelle) (Entered: 05/02/2016)
121 Deposition of Joseph Handrick taken on April 30, 2013. (Attachments: # 1 Exhibit 1 − Subpoena) (Harless, Annabelle) (Entered: 05/02/2016)
122 ** TEXT ONLY ORDER ** Plaintiffs' 104 motion to allow its witness to provide trial testimony by live video at the trial in this matter is GRANTED. Plaintiffs' counsel should consult with the clerk of court about the technical arrangements. Signed by District Judge Barbara B. Crabb on 5/9/2016. (voc) (Entered: 05/09/2016)
123 Proposed Special Verdict − Liability by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 05/09/2016)
124 Proposed Findings of Fact by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 05/09/2016)
125 Joint Final Pretrial Conference Report by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) Modified on 5/10/2016: Requested exhibit lists and deposition designations be filed as separate docket entries. Exhibit lists also filed at 102 and 103 . (lak) (Entered: 05/09/2016)
126 Proposed Special Verdict − Liability by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 05/09/2016)
127 Proposed Findings of Fact by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 05/09/2016)
128 Exhibit List by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) Modified on 5/17/2016: See 132 for Amended Exhibit List. (lak) (Entered: 05/10/2016)
129 Deposition Designations by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 05/10/2016)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 50 of 72

05/10/2016 05/10/2016 05/13/2016 05/16/2016 05/16/2016 05/16/2016 05/19/2016 05/19/2016 05/20/2016
05/23/2016
05/23/2016
05/23/2016
05/24/2016 05/25/2016

130 Exhibit List by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 05/10/2016)
131 Deposition Designations by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 05/10/2016)
Notice to Counsel: The court requests that the parties submit copies of pre−marked trial exhibits on CD−ROM or flash drive, not paper, as originally directed. Please provide the court with three complete sets by Monday, 5/16/2016. Trial briefs may be filed electronically. (arw) (Entered: 05/13/2016)
132 Amended Exhibit List by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 05/16/2016)
133 Trial Brief by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 05/16/2016)
134 Trial Brief by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 05/16/2016)
135 Supplement to 127 Proposed Findings of Fact, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, William Whitford, Janet Mitchell, Wendy Sue Johnson, Mary Lynn Donohue, Roger Anclam. (Greenwood, Ruth) (Entered: 05/19/2016)
136 Disregard. See 137 for signed version. Modified on 5/20/2016. (lak) (Entered: 05/19/2016)
137 Amended Document by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Amendment to 127 Proposed Findings of Fact to Include Trial Exhibit Numbers. (Greenwood, Ruth) Modified on 5/20/2016. (lak) (Entered: 05/20/2016)
138 Stipulation to the admissibility of Exhibit 225 and withdrawal of Mark Lanterman as a testifying witness for plaintiffs by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Harless, Annabelle) (Entered: 05/23/2016)
139 Amended Exhibit List Number 2 by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Cover Letter Describing Changes to Exhibits) (Poland, Douglas) Modified on 5/24/2016: Removed duplicate text; See 140 for an Amended Cover Letter. (lak) (Entered: 05/23/2016)
140 Amended Document by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Amendment to 139 Exhibit List. Amended Cover Letter. (Poland, Douglas) Modified on 5/24/2016. (lak) (Entered: 05/23/2016)
Set/Reset Trial Date: Second Day of Court Trial set for 5/25/2016 at 9:00 AM. (arw) (Entered: 05/24/2016)
141 Minute Entry for proceedings held before Circuit Judge Kenneth F. Ripple, District Judge Barbara B. Crabb and District Judge William C. Griesbach: First Day of Court Trial held on 5/24/2016. Evidence entered, trial continues. [6:45] (Court Reporter LS) (arw) (Entered: 05/25/2016)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 51 of 72

05/25/2016 05/26/2016 05/26/2016 05/26/2016 05/27/2016
05/27/2016 05/27/2016 05/27/2016 05/31/2016 06/08/2016
06/08/2016
06/08/2016
06/10/2016
06/10/2016
06/10/2016

Set/Reset Trial Date: Third Day of Court Trial set for 5/26/2016 at 9:00 AM. (arw) (Entered: 05/25/2016)
142 Minute Entry for proceedings held before Circuit Judge Kenneth F. Ripple, District Judge Barbara B. Crabb and District Judge William C. Griesbach: Second Day of Court Trial held on 5/25/2016. Evidence entered, trial continues. [6:57] (Court Reporter LS) (arw) (Entered: 05/26/2016)
Set/Reset Trial Date: Fourth Day of Court Trial set for 5/27/2016 at 8:30 AM. (arw) (Entered: 05/26/2016)
143 Minute Entry for proceedings held before Circuit Judge Kenneth F. Ripple, District Judge Barbara B. Crabb and District Judge William C. Griesbach: Third Day of Court Trial held on 5/26/2016. Evidence entered, trial continues. [7:08] (Court Reporter LS) (Entered: 05/26/2016)
144 Stipulation Regarding Descriptions of the Legislative Technology Services Bureau and the Government Accountability Board by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) Modified on 5/30/2016. (lak) (Entered: 05/27/2016)
145 Minute Entry for proceedings held before Circuit Judge Kenneth F. Ripple, District Judge Barbara B. Crabb and District Judge William C. Griesbach: Fourth Day of Court Trial held on 5/27/2016. Trial completed, briefing set: Post−trial briefs due 6/10/2016, Replies due 6/20/2016. [6:35] (Court Reporter LS) (arw) (Entered: 05/27/2016)
146 Court Trial Exhibit List. (arw) (Entered: 05/27/2016)
Post−trial briefs due 6/10/2016, replies due 6/20/2016. (arw) (Entered: 05/27/2016)
Notice to Counsel: Plaintiffs' Trial Exhibits 485, 488, 493 and 497 maintained in Clerk's Office Exhibit Room. (arw) (Entered: 05/31/2016)
147 Transcript of First Day of Court Trial, held 5/24/2016 before Judge Barbara B. Crabb. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (voc) (Entered: 06/08/2016)
148 Transcript of Second Day of Jury Trial, held 5/25/2016 before Judge Barbara B. Crabb. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (voc) (Entered: 06/08/2016)
149 Transcript of Third Day of Jury Trial, held 5/26/2016 before Judge Barbara B. Crabb. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (voc) (Entered: 06/08/2016)
150 Transcript of Fourth Day of Court Trial, held 5/27/16 before Judge Barbara B. Crabb, Judge Kenneth Ripple, and Judge William Griesbach. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (jat) (Entered: 06/10/2016)
151 Motion to Admit Certain Trial Exhibits and Statements from Learned Treatises Into Evidence by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Response due 6/17/2016. (Lang, Danielle) Modified on 6/13/2016. (lak) (Entered: 06/10/2016)
152 Unopposed Stipulation Regarding 2008 and 2012 Presidential Vote Totals by Ward by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Exhibit − 2008 Election Data by Ward,

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 52 of 72

06/10/2016 06/10/2016 06/10/2016 06/13/2016 06/20/2016 06/20/2016 06/23/2016 06/23/2016
06/23/2016 06/30/2016 06/30/2016

# 2 Exhibit − LTSB 2012 Election Data, # 3 Exhibit − 2008 Fall Election President Ward by Ward, # 4 Exhibit − Ward by Ward Canvass Results for President with Congressional, State Senate, and Assembly Districts) (Harless, Annabelle) Modified on 6/13/2016. (lak) (Entered: 06/10/2016)
153 Post Trial Brief by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 06/10/2016)
154 Motion for Leave to File Second Declaration of Dr. Kenneth Mayer by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Second Declaration of Dr. Kenneth Mayer) (Harless, Annabelle) (Entered: 06/10/2016)
155 Post Trial Brief by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Greenwood, Ruth) (Entered: 06/10/2016)
Briefing Deadlines set as to 151 Motion to Admit Certain Trial Exhibits and Statements from Learned Treatises Into Evidence by Plaintiffs and 154 Motion for Leave to File Second Declaration of Dr. Kenneth Mayer by Plaintiffs. Brief in Opposition due 6/23/2016. Brief in Reply due 6/30/2016. (voc/sv) (Entered: 06/13/2016)
156 Post Trial Brief by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) (Entered: 06/20/2016)
157 Post Trial Brief (Reply) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Harless, Annabelle) (Entered: 06/20/2016)
158 Stipulated Motion to Substitute Party by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Exhibit − 2015 Wisconsin Act 118 Proposed Implementation Plan) (Harless, Annabelle) (Entered: 06/23/2016)
159 Brief in Opposition by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 151 Motion to Admit Certain Trial Exhibits and Statements from Learned Treatises Into Evidence, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, William Whitford, Janet Mitchell, Wendy Sue Johnson, Mary Lynn Donohue, Roger Anclam. (Keenan, Brian) Modified on 6/23/2016. (lak) (Entered: 06/23/2016)
160 Brief in Opposition by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 154 Motion for Leave to File, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, William Whitford, Janet Mitchell, Wendy Sue Johnson, Mary Lynn Donohue, Roger Anclam. (Keenan, Brian) (Entered: 06/23/2016)
161 Brief in Reply by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter in Support of 151 Motion to Admit Certain Trial Exhibits and Statements from Learned Treatises Into Evidence. (Harless, Annabelle) Modified on 7/1/2016. (lak) (Entered: 06/30/2016)
162 Brief in Reply by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton,

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 53 of 72

08/01/2016
11/14/2016 11/17/2016 11/21/2016 11/21/2016 12/09/2016
12/16/2016
12/21/2016 12/21/2016
01/04/2017 01/04/2017 01/05/2017

James Seaton, Jerome Wallace, William Whitford, Donald Winter in Support of 154 Motion for Leave to File the Second Declaration of Dr. Kenneth Mayer. (Harless, Annabelle) (Entered: 06/30/2016)
163 Notice of Supplemental Authority by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Exhibit − One Wisconsin Institute v. Mark L. Thomsen, et al.) (Lang, Danielle) Modified on 8/1/2016. (lak) (Entered: 08/01/2016)
164 Motion to Supplement the Record by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Poland, Douglas) Modified on 11/14/2016. (lak) (Entered: 11/14/2016)
165 ** TEXT ONLY ORDER ** ORDER denying 164 Motion to Supplement the Record by plaintiffs. Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach on 11/17/2016. (voc) (Entered: 11/17/2016)
166 OPINION and ORDER. Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach. Signed by District Judge Barbara B. Crabb on 11/21/2016. (voc) (Entered: 11/21/2016)
Briefing set re: 1− Act 43, 2− Redistricting Plan, 3− Preparation and Consent of the nomination or election of members of the State Assembly. Brief in Support due 12/21/2016. Brief in Opposition due 1/5/2017. (voc) (Entered: 11/21/2016)
167 Motion for Clarification re: 166 Order on Motion for Miscellaneous Relief, Order on Stipulation, Order on Motion for Leave to File, Order on Motion to Substitute Party by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Response due 12/16/2016. (Harless, Annabelle) (Entered: 12/09/2016)
168 Brief in Opposition by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 167 Motion for Clarification, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, William Whitford, Janet Mitchell, Wendy Sue Johnson, Mary Lynn Donohue, Roger Anclam. (Keenan, Brian) Modified on 12/16/2016. (lak) (Entered: 12/16/2016)
169 Response re: 166 OPINION and ORDER. Brief on Remedy by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) Modified on 12/22/2016. (lak) (Entered: 12/21/2016)
170 Response re: 166 OPINION and ORDER. Brief on Remedies by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter, (Attachments: # 1 Exhibit A − Brief from Baldus, # 2 Exhibit B − Transcript Vol III from Baldus) (Greenwood, Ruth) Modified on 12/22/2016. (lak) (Entered: 12/21/2016)
171 Letter from David Nir. (voc/ck) (Entered: 01/04/2017)
172 ORDER Re: 167 Motion for Clarification. Signed by Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach on 1/4/2017. (voc) (Entered: 01/04/2017)
173 Response re: 166 OPINION and ORDER. Response Brief on Remedies by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke. (Keenan, Brian) Modified on 1/5/2017. (lak) (Entered: 01/05/2017)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 54 of 72

01/05/2017
01/05/2017 01/05/2017 01/07/2017 01/09/2017 01/12/2017
01/26/2017 01/26/2017
01/27/2017 01/27/2017 01/27/2017
02/06/2017
02/08/2017 02/14/2017

174 Response re: 166 OPINION and ORDER. Response Brief on Remedies by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Harless, Annabelle) Modified on 1/6/2017. (lak) (Entered: 01/05/2017)
175 Motion for Leave to File Brief of Amicus Curiae by Amicus The League of Women Voters of Wisconsin. (Attachments: # 1 Brief of Amicus Curiae) (Crawford, Susan) (Entered: 01/05/2017)
176 Corporate Disclosure Statement by Amicus The League of Women Voters of Wisconsin. (Crawford, Susan) (Entered: 01/05/2017)
177 Motion to Admit Stephen J. Schulhofer Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758−1947603.) by Amicus Stephen J. Schulhofer. Motions referred to Magistrate Judge Stephen L. Crocker. (Schulhofer, Stephen) (Entered: 01/07/2017)
178 ** TEXT ONLY ORDER ** ORDER granting 177 Motion to Admit Stephen J. Schulhofer Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 1/9/2017. (lak) (Entered: 01/09/2017)
179 Notice of Supplemental Authority by Defendants Thomas Barland, John Franke, Harold V. Froehlich, Kevin J. Kennedy, Elsa Lamelas, Gerald C. Nichol, Timothy Vocke re: 173 Response to Order, 174 Response to Order, (Attachments: # 1 Order issued in Covington v. North Carolina) (Keenan, Brian) (Entered: 01/12/2017)
180 ORDER granting 175 Motion for Leave to File Brief of Amicus Curiae by Amicus The League of Women Voters of Wisconsin. Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach 1/26/2017. (voc) (Entered: 01/26/2017)
181 Consent Motion for Extension of Time to Move for Attorney's Fees and Costs by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. Motions referred to Magistrate Judge Stephen L. Crocker. (Poland, Douglas) Modified on 1/27/2017. (lak) (Entered: 01/26/2017)
182 OPINION and ORDER. Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach on 1/27/2017. (voc) (Entered: 01/27/2017)
183 JUDGMENT entered in favor of Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter dismissing the case. (voc) (Entered: 01/27/2017)
184 ** TEXT ONLY ORDER ** Plaintiffs' unopposed motion (dkt. 181 ) to extend their time in which to move for attorneys fees and costs is GRANTED. The new deadline is 30 days after any Supreme Court resolution of this case, or, if neither side files a notice of appeal, 30 days after the date on which such a notice is due. Signed by Magistrate Judge Stephen L. Crocker on 1/27/2017. (voc) (Entered: 01/27/2017)
185 Motion to Alter or Amend Judgment to Retain Jurisdiction Regarding Remedy by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Attachments: # 1 Text of Proposed Order) (Poland, Douglas) (Entered: 02/06/2017)
186 Letter from the Court. (voc) (Entered: 02/08/2017)
187 Brief in Opposition by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Don Millis, Mark L. Thomsen re: 185 Motion to Alter or Amend Judgment, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, William Whitford, Janet Mitchell, Wendy Sue Johnson, Mary Lynn Donohue, Roger Anclam. (Keenan, Brian) (Entered: 02/14/2017)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 55 of 72

02/16/2017 02/22/2017 02/22/2017 02/24/2017 03/15/2017 03/20/2017 08/03/2017 07/25/2018 07/31/2018
08/01/2018 08/02/2018 08/15/2018 08/16/2018

188 Brief in Reply by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter in Support of 185 Motion to Alter or Amend Judgment. (Harless, Annabelle) (Entered: 02/16/2017)
189 ORDER granting 185 Motion to Alter or Amend Judgment to Retain Jurisdiction Regarding Remedy. Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach on 2/22/2016. (voc) (Entered: 02/22/2017)
190 AMENDED JUDGMENT entered in favor of Plaintiffs Roger Anclam, Emily Bunting, Mary Lynne Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter dismissing the case. (voc) (Entered: 02/22/2017)
191 NOTICE OF APPEAL by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Don Millis, Mark L. Thomsen as to 182 Order, 190 Judgment. Filing fee of $ 505, receipt number 0758−1977883 paid. No Docketing Statement filed. (Keenan, Brian) (Entered: 02/24/2017)
192 Judgment Corrected Pursuant to Rule 60(a) to correct the inadvertent omission of court approval of form as required by Rule 58(b)(2) (BBC /PAO). (voc) (Entered: 03/15/2017)
193 AMENDED NOTICE OF APPEAL by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Don Millis, Mark L. Thomsen as to 190 Judgment, 192 Judgment, 183 Judgment. Filing fee of $ 505, receipt number 0758−1977883 paid. No Docketing Statement filed. (Keenan, Brian) (Entered: 03/20/2017)
194 Certified and Transmitted Record on Appeal to United States Supreme Court, (Attachments: # 1 Certification, # 2 Supreme Court Letter Requesting Record) (lak) (Entered: 08/03/2017)
195 Notice: Certified Copy of Judgment from Supreme Court of the United States. (Attachments: # 1 Cover Letter) (voc) (Entered: 07/25/2018)
196 ORDER: Now that the United States Supreme Court has certified the judgment in this case, the court will provide the parties an opportunity to submit memoranda stating their position on further proceedings consistent with the opinion of the Court. Accordingly, IT IS ORDERED that the parties may have until August 17, 2018 in which to file and serve such memoranda. They may have until August 31, 2018 in which to file and serve reply memoranda. Signed by Judges Kenneth F. Ripple, Barbara B. Crabb and William C. Griesbach on 7/31/2018. (voc) (Entered: 07/31/2018)
Briefing set re: Memoranda stating their position on further proceedings. Brief in Support due 8/17/2018. Brief in Opposition due 8/31/2018. (voc) Modified on 9/26/2018 (voc). (Entered: 08/01/2018)
197 ORDER of Withdrawal. District Judge Barbara B. Crabb withdrawn. Case randomly reassigned to District Judge James D. Peterson for all further proceedings. Signed by District Judge Barbara B. Crabb on 8/2/2018. (voc) Modified on 8/2/2018. (arw) (Entered: 08/02/2018)
198 Status Report (Joint Memorandum Stating the Parties' Positions on Further Proceedings) by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Poland, Douglas) Modified on 8/16/2018 (voc). (Entered: 08/15/2018)
199 ORDER accepting in part 198 Status Report (Joint Memorandum Stating the Parties' Positions on Further Proceedings). It is Ordered that: 1. The August 17 and 27 memoranda deadlines are struck. 2. Plaintiffs have until September 14, 2018, to file an amended complaint. 3. The parties will update their initial disclosures by September 28. 4. Plaintiffs must serve any new expert reports by October 15. 5. The parties must submit a joint preliminary pretrial report by October 5, 2018. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 8/16/2018. (voc)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 56 of 72

08/20/2018 08/27/2018 09/07/2018 09/14/2018 09/14/2018 09/17/2018 09/18/2018 09/18/2018
09/26/2018
09/28/2018 10/04/2018 10/04/2018 10/04/2018
10/04/2018

(Entered: 08/16/2018)
Set Telephone Pretrial Conference: Telephone Pretrial Conference set for 10/16/2018 at 01:00 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. [Standing Order Governing Preliminary Pretrial Conference attached] (voc) (Entered: 08/20/2018)
200 Notice of Appearance filed by Karla Z. Keckhaver for Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Don Millis, Mark L. Thomsen. (Keckhaver, Karla) (Entered: 08/27/2018)
Appeal Record Returned. (voc) (Entered: 09/07/2018)
201 AMENDED COMPLAINT against All Defendants, filed by All Plaintiffs. (Poland, Douglas) (Entered: 09/14/2018)
202 Notice by Amicus The League of Women Voters of Wisconsin of Substitution of Counsel. (Welsh, Diane) Modified on 9/19/2018. (lak) (Entered: 09/14/2018)
203 Notice of Withdrawal of Counsel by Diane Mary Welsh re: Amicus The League of Women Voters of Wisconsin (Welsh, Diane) (Entered: 09/17/2018)
204 Motion to Consolidate Cases by Plaintiffs Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jensen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, William Whitford, Donald Winter. (Pines, Lester) (jls) (Entered: 09/18/2018)
205 ** TEXT ONLY ORDER ** The Wisconsin Assembly Democratic Campaign Committee has filed a new lawsuit challenging the constitutionality of the Wisconsin State Assembly district plan. No. 18−cv−763−jdp. The Committee seeks to consolidate its case with No. 15−cv−421−jdp. Defendants in No. 18−cv−763−jdp and any party in No. 15−cv−421−jdp who wishes to be heard may have until October 1, 2018, to respond to the motion. The Committee may have until October 9, 2018, to file a reply. Signed by District Judge James D. Peterson on 9/18/2018. (jls) (Entered: 09/18/2018)
206 Response Stating No Opposition by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Steve King, Dean Knudson, Don Millis, Mark L. Thomsen re: 204 Motion to Consolidate Cases, filed by Jerome Wallace, Allison Seaton, Helen Harris, Donald Winter, James Seaton, Emily Bunting, Wayne Jensen, Mary Lynne Donohue, William Whitford, Janet Mitchell, Wendy Sue Johnson, Roger Anclam. (Keenan, Brian) (Entered: 09/26/2018)
207 ANSWER to Amended Complaint by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen. (Keenan, Brian) Modified on 10/1/2018: Per Answer, added Dean Knudson and Jodi Jensen to docket text, removed Steve King and Don Millis from docket text. (lak) (Entered: 09/28/2018)
208 Notice of Appearance filed by Kevin Michael St. John for Intervenor Defendant Wisconsin State Assembly. (St. John, Kevin) (Entered: 10/04/2018)
209 Motion to Intervene by Intervenor Defendant Wisconsin State Assembly. Response due 10/11/2018. (St. John, Kevin) Modified on 10/5/2018: If this motion is granted, they request that the Court file their attachments. (lak) (Entered: 10/04/2018)
210 Brief in Support of 209 Motion to Intervene by Intervenor Defendant Wisconsin State Assembly, (Attachments: # 1 Attachment 1 − Proposed Motion to Dismiss, # 2 Attachment 2 − Proposed Brief in Support of Motion to Dismiss, # 3 Attachment 3 − Proposed Answer to Amended Complaint, # 4 Attachment 4 − LMV of Michigan v. Johnson, # 5 Attachment 5 − Baumgart v. Wendelberger) (St. John, Kevin) Modified on 10/5/2018. (lak) (Entered: 10/04/2018)
211 Corporate Disclosure Statement by Intervenor Defendant Wisconsin State Assembly. (St. John, Kevin) (Entered: 10/04/2018)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 57 of 72

10/05/2018
10/05/2018 10/05/2018
10/11/2018 10/15/2018 10/17/2018 10/17/2018 10/18/2018 10/19/2018 10/19/2018

212 ORDER that the motion filed by the Wisconsin Assembly Democratic Campaign Committee to consolidate No. 18−cv−763−jdp with No. 15−cv−421−jdp is GRANTED for the limited purpose of scheduling. After the October 16, 2018 preliminary pretrial conference, the court will revisit the issue of consolidation if it becomes apparent that individual issues predominate or if consolidation is otherwise impractical. The committee may have until to October 10, 2018, to file any objections to the joint preliminary pretrial report submitted by the parties in No. 15−cv−421−jdp. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 10/5/2018. (voc) (Entered: 10/05/2018)
Set Briefing Deadlines as to 209 Motion to Intervene . Brief in Opposition due 10/19/2018. Brief in Reply due 10/26/2018. (voc/sv) (Entered: 10/05/2018)
213 Joint Preliminary Pretrial Conference Report by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. (Poland, Douglas) Modified on 10/8/2018: This is captioned for case 18−cv−763 but was not filed in that case. (lak) Modified on 10/9/2018: Cases are consolidated for the limited purpose of scheduling. No other consolidation has been made. Text/events are not spreading. (lak) (Entered: 10/05/2018)
Set/Reset Telephone Pretrial Conference: Telephone Pretrial Conference set for 10/16/2018 at 01:00 PM before Judge James D. Peterson. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5504. (voc/jdp/sv) (Entered: 10/11/2018)
Notice to Counsel: The Preliminary Pretrial Conference on 10/16/2018 will take place via teleconference. Please dial (888) 557−8511 to join the conference call. Please enter access code 2955378 when prompted. (arw/skv) (Entered: 10/15/2018)
Minute Entry for proceedings held before District Judge James D. Peterson: Preliminary Pretrial Conference held on 10/16/2018. [:38] (Court Reporter JD) (arw) (Entered: 10/17/2018)
214 Pretrial Conference Order − Preliminary Pretrial Packet in cases assigned to District Judge James D. Peterson attached. Rule 26(a)(3) disclosures due 3/1/2019. Motions in Limine and objections to Rule 26(a)(3) disclosures due 3/15/2019. Responses to Motions in limine due 3/29/2019. Statement of stipulated facts and trial briefs due 4/12/2019. Court Trial set for 4/23/2019 at 09:00 AM. Signed by District Judge James D. Peterson on 10/17/2018. (jls) (Entered: 10/17/2018)
215 Transcript of Preliminary Pretrial Conference, held 10/16/2018 before Judge James D. Peterson. Court Reporter: JD. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. (voc) (Entered: 10/18/2018)
216 Response Stating No Opposition by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Steve King, Dean Knudson, Don Millis, Mark L. Thomsen re: 209 Motion to Intervene filed by Wisconsin State Assembly. (Keenan, Brian) (Entered: 10/19/2018)
217 Brief in Opposition by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 209 Motion to Intervene filed

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 58 of 72

10/25/2018 10/25/2018 10/26/2018 10/26/2018
10/26/2018 11/13/2018 11/13/2018 11/13/2018 11/15/2018

by Wisconsin State Assembly. (Harless, Annabelle) (Entered: 10/19/2018)
218 Notice of Appearance filed by Adam Mortara for Intervenor Defendant Wisconsin State Assembly. (Mortara, Adam) (Entered: 10/25/2018)
219 Notice of Appearance filed by Joshua Ackerman for Intervenor Defendant Wisconsin State Assembly. (Ackerman, Joshua) (Entered: 10/25/2018)
220 Brief in Reply by Intervenor Defendant Wisconsin State Assembly in Support of 209 Motion to Intervene, (Attachments: # 1 Expert Report of Jowei Chen, Ph.D. (See 221 .), # 2 Expert Report of Kenneth R. Mayer, Ph.D. (See 222 .)) (Mortara, Adam) Modified on 10/26/2018: Expert reports to be filed separately. (lak) (Entered: 10/26/2018)
221 Expert Report of Jowei Chen, Ph.D. by Intervenor Defendant Wisconsin State Assembly (Attachments: # 1 Table 1 − Comparison of Chen Composite Measure to Exhibit 172 Partisan Measure, # 2 Table 2 − Comparison of Act 43 Map and Computer−Simulated 43995 Map, # 3 Table 3 − District−Level Characteristics of the Act 43 Enacted Assembly Map, # 4 Table 4 − District−Level Characteristics of Computer−Simulated Map 43995, # 5 Table 5 − List of 67 Municipalities Split into Multiple District in Enacted Act 43 Plan, # 6 Table 6 − List of 58 Counties Split into Multiple Districts in Enacted Act 43 Plan, # 7 Table 7 − List of 53 Municipalities Split into Multiple Districts in Simulated Plan 43995, # 8 Table 8 − List of 43 Counties Split into Multiple Districts in Simulated Plan 43995, # 9 Table 9 − Incumbent Representatives as of November 2012, # 10 Table 10 − Act 43 Districts and Simulated Plan 43995 Districts in which 31 Plaintiffs Reside, # 11 Figure 1 − Comparison of Chen Composite Measure, # 12 Figure 2a − Act 43 Assembly District−Level Republican Vote Share, # 13 Figure 2b − Act 43 Map District−Level Republican Vote Share, # 14 Figure 3a − Simulated Plan 43995 District−Level Republican Vote Share, # 15 Figure 3b − Simulated Plan 43995 District−Level Republican Vote Share, # 16 Figure 4a − Ward−Level Republican Vote Share, # 17 Figure 4b − Ward−Level Republican Vote Share And Act 43 District Boundaries, # 18 Figure 5a − Ward−Level Republican Vote Share, # 19 Figure 5b − Ward−Level Republican Vote Share And Simulated Plan 43995 District Boundaries, # 20 Figure 6 − Efficiency Gap of Simulated Plan 34995 with Different Uniform Swings, # 21 Exhibit − Plaintiffs' Maps) (Mortara, Adam) Modified on 10/29/2018: Added exhibit descriptions. (lak) (Entered: 10/26/2018)
222 Expert Report of Kenneth R. Mayer, Ph.D. (With Sources Attached) by Intervenor Defendant Wisconsin State Assembly. (Mortara, Adam) Modified on 10/29/2018. (lak) (Entered: 10/26/2018)
223 ORDER granting Wisconsin State Assembly's 209 Motion to Intervene; setting deadlines on the Assembly's motions to dismiss. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 11/13/2018. (jls) (Entered: 11/13/2018)
224 MOTION TO DISMISS by Intervenor Defendant Wisconsin State Assembly. Brief in Opposition due 12/21/2018. Brief in Reply due 1/11/2019. (jls) (Entered: 11/13/2018)
225 Brief in Support of 224 Motion to Dismiss by Intervenor Defendant Wisconsin State Assembly. (jls) (Entered: 11/13/2018)
226 Motion to Withdraw as Attorney by Amicus Jowei Chen. Response due 11/23/2018. (Attachments: # 1 Text of Proposed Order) (Boehm, Theodore) (Entered: 11/15/2018)

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11/16/2018 12/21/2018
12/21/2018
01/07/2019 01/07/2019
01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/08/2019 01/09/2019 01/09/2019

227 ** TEXT ONLY ORDER ** ORDER granting 226 Motion to Withdraw as Attorney. Attorney Theodore Reed Boehm withdrawn from the case. Signed by Magistrate Judge Stephen L. Crocker on 11/16/2018. (voc) (Entered: 11/16/2018)
228 Declaration of Ruth Merewyn Greenwood filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 224 Motion to Dismiss, (Attachments: # 1 Exhibit A − Complaints Redline) (Greenwood, Ruth) (Entered: 12/21/2018)
229 Brief in Opposition by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 224 Motion to Dismiss filed by Wisconsin State Assembly. (Stephanopoulos, Nicholas) (Entered: 12/21/2018)
230 Emergency Motion to Stay by Intervenor Defendant Wisconsin State Assembly. Response due 1/14/2019. (Mortara, Adam) (Entered: 01/07/2019)
231 Brief in Support of 230 Motion to Stay by Intervenor Defendant Wisconsin State Assembly, (Attachments: # 1 Exhibit A − Supreme Court Order List, # 2 Exhibit B − Jurisdictional Statement in Rucho v Common Cause, # 3 Exhibit C − Jurisdiction Statement in Lamone v Benisek) (Mortara, Adam) Modified on 1/8/2019. (lak) (Entered: 01/07/2019)
232 Declaration of Joshua P. Ackerman filed by Intervenor Defendant Wisconsin State Assembly in Support re: 230 Motion to Stay. (Mortara, Adam) (Entered: 01/07/2019)
233 Unopposed Motion for Extension of Time to file its Reply Brief in Support of The Assembly's Motion to Dismiss by Intervenor Defendant Wisconsin State Assembly. Motions referred to Magistrate Judge Stephen L. Crocker. (Mortara, Adam) (Entered: 01/07/2019)
234 Declaration of Joshua P. Ackerman filed by Intervenor Defendant Wisconsin State Assembly re: 233 MOTION for Extension of Time. (Mortara, Adam) (Entered: 01/07/2019)
Set/Reset Deadlines as to 230 Emergency Motion to Stay . Brief in Opposition due 1/14/2019. Brief in Reply due 1/17/2019. (voc) (Entered: 01/07/2019)
235 ** TEXT ONLY ORDER ** ORDER granting 233 Motion for Extension of Time. Signed by District Judge James D. Peterson on 1/7/2019. (voc) (Entered: 01/07/2019)
236 Motion to Admit Taylor A. R. Meehan Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758−2388577.) by Intervenor Defendant Wisconsin State Assembly. Motions referred to Magistrate Judge Stephen L. Crocker. (Meehan, Taylor) (Entered: 01/08/2019)
237 ** TEXT ONLY ORDER ** ORDER granting 236 Motion to Admit Taylor A. R. Meehan Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 1/9/2019. (lak) (Entered: 01/09/2019)
238 ** TEXT ONLY ORDER ** Because the court has provisionally consolidated these cases, all further docketing for

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01/14/2019
01/14/2019 01/16/2019 01/17/2019 01/23/2019 01/23/2019 01/24/2019 01/25/2019 01/29/2019
01/29/2019 02/01/2019 02/01/2019

both cases will appear in Case No. 15−cv−421−jdp until further order of the court. Signed by District Judge James D. Peterson on 1/9/2019. (voc) (Entered: 01/09/2019)
239 Brief in Opposition by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 230 Motion to Stay filed by Wisconsin State Assembly. (Harless, Annabelle) (Entered: 01/14/2019)
240 Response Stating No Opposition by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Steve King, Dean Knudson, Don Millis, Mark L. Thomsen re: 230 Motion to Stay filed by Wisconsin State Assembly. (Russomanno, Anthony) (Entered: 01/14/2019)
241 Disregard. See 242 . Modified on 1/18/2019. (lak) (Entered: 01/16/2019)
242 Corrected Brief in Reply by Intervenor Defendant Wisconsin State Assembly in Support of 230 Motion to Stay. (Ackerman, Joshua) (Entered: 01/17/2019)
243 ORDER denying without prejudice 224 Motion to Dismiss and 27 Motion to Dismiss; granting in part and denying in part 230 Motion to Stay. Signed by Judges William C. Griesbach, James D. Peterson and Kenneth F. Ripple on 1/23/2019. Associated Cases: 3:15−cv−00421−jdp, 3:18−cv−00763−jdp. (voc) (Entered: 01/23/2019)
Set Telephone Hearing: Telephone Scheduling Conference set for 2/1/2019 at 09:00 AM before Judge James D. Peterson. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5504. Associated Cases: 3:15−cv−00421−jdp, 3:18−cv−00763−jdp (voc/sv/jdp) (Entered: 01/23/2019)
Notice to Counsel: The Telephone Scheduling Conference on 2/1/2019 will take place via teleconference. Please dial (888) 557−8511 to join the conference call. Please enter access code 2955378 when prompted. AssociatedCases: 3:15−cv−00421−jdp, 3:18−cv−00763−jdp (voc) (Entered: 01/24/2019)
244 Unopposed Motion to Dismiss the Complaint of The Wisconsin Assembly Democratic Campaign Committee, filed by plaintiff The Wisconsin Assembly Democratic Campaign Committee. Associated Cases: 3:18−cv−00763−jdp, 3:15−cv−00421−jdp. (Pines, Lester) (Entered: 01/25/2019)
245 Status Report Letter from Plaintiffs' Counsel Regarding Counsel's Availability for July 22, 2019 Trial Date by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Associated Cases: 3:15−cv−00421−jdp, 3:18−cv−00763−jdp. (Poland, Douglas) (Entered: 01/29/2019)
246 ** TEXT ONLY ORDER ** ORDER granting (244) Stipulation of Dismissal in case 3:15−cv−00421−jdp; Granting (43) Motion to Dismiss in case 3:18−cv−00763−jdp. Signed by Judges William C. Griesbach, Kenneth F. Ripple and James D. Peterson on 1/29/2019. Associated Cases: 3:15−cv−00421−jdp, 3:18−cv−00763−jdp (voc) (Entered: 01/29/2019)
247 Minute Entry for proceedings held before District Judge James D. Peterson: Scheduling Conference held on 2/1/2019. [:41] (Court Reporter CS.) (jls) (Entered: 02/01/2019)
248 Scheduling Order: Court Trial set for 7/15/2019 − 7/18/2019 at 09:00 AM. Signed by District Judge James D. Peterson on 2/1/2019. (voc) (Entered: 02/01/2019)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 61 of 72

02/04/2019
02/04/2019 02/12/2019
02/12/2019 03/15/2019 03/15/2019
03/15/2019

249 Expert Report, Sources and CV of James Gimpel by Intervenor Defendant Wisconsin State Assembly, (Attachments: # 1 Appendix A − Act 43 Core Retention Report, # 2 Appendix B − Chen 43995 Core Retention Report, # 3 Appendix C − Chen 43995 Incumbent Pairing Report, # 4 Appendix D − Act 43 Composite Election Percentages, # 5 Appendix E − Plan 43995 Composite Election Percentages, # 6 Appendix F − 2016 President and US Senate Election Performance on Chen 43995, # 7 Appendix G − 2018 Election Results) (Mortara, Adam) Modified on 2/4/2019: Signature, etc. (lak) (Entered: 02/04/2019)
250 Expert Report, Data Sources and Other References of Brian J. Gaines by Intervenor Defendant Wisconsin State Assembly. (Mortara, Adam) Modified on 2/4/2019: Signature, etc. (lak) (Entered: 02/04/2019)
251 Motion to Admit Mark P. Gaber Pro Hac Vice. ( Pro Hac Vice fee $ 100 receipt number 0758−2407850.) by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Motions referred to Magistrate Judge Stephen L. Crocker. (Gaber, Mark) (Entered: 02/12/2019)
252 ** TEXT ONLY ORDER ** ORDER granting 251 Motion to Admit Mark P. Gaber Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 2/12/2019. (lak) (Entered: 02/12/2019)
253 Motion for Protective Order by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. (Poland, Douglas) (Entered: 03/15/2019)
254 Declaration of Annabelle E. Harless filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 253 Motion for Protective Order, (Sealed Document) (Attachments: # 1 Exhibit 1 − Proposed Protective Order, # 2 Exhibit 2 − Lentini Deposition Transcript, # 3 Exhibit 3 − Patel Deposition Transcript, # 4 Exhibit 4 − Seaton Deposition Transcript) (Poland, Douglas) Modified on 3/15/2019. (lak) (Entered: 03/15/2019)
255 Redaction to 254 Declaration of Annabelle E. Harless, (Attachments: # 1 Exhibit 1 − Proposed Protective Order, # 2 Exhibit 2 − Lentini Deposition Transcript, # 3 Exhibit 3 − Patel Deposition Transcript, # 4 Exhibit 4 − Seaton Deposition Transcript) (Poland, Douglas) Modified on 3/15/2019. (lak) (Entered: 03/15/2019)

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03/15/2019 03/15/2019 03/19/2019 03/19/2019 03/19/2019
03/20/2019

256 Motion to Seal Document 254 Declaration, by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Motions referred to Magistrate Judge Stephen L. Crocker. (Poland, Douglas) (Entered: 03/15/2019)
Set Deadlines as to 253 Motion for Protective Order. Response due 3/25/2019. No Reply. (jat) (Entered: 03/15/2019)
257 Motion to Compel Deposition and Production of Documents by Robin J. Vos by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Motions referred to Magistrate Judge Stephen L. Crocker. Response due 3/26/2019. (Greenwood, Ruth) (Entered: 03/19/2019)
258 Brief in Support of 257 Motion to Compel Deposition and Production of Documents by Robin J. Vos by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. (Greenwood, Ruth) (Entered: 03/19/2019)
259 Declaration of Ruth Merewyn Greenwood filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 257 Motion to Compel, (Attachments: # 1 Exhibit 1 − Subpoena to Testify at a Deposition, # 2 Exhibit 2 − Letter dated February 13, 2019 with Attachments, # 3 Exhibit 3 − Notice of Subpoena, # 4 Exhibit 4 − Letter dated February 20, 2019, # 5 Exhibit 5 − Letter dated February 27, 2019, # 6 Exhibit 6 − Letter dated March 5, 2019, # 7 Exhibit 7 − Letter dated February 13, 2019 with Attachments, # 8 Exhibit 8 − Response to Requests for Production, # 9 Exhibit 9 − E−mail dated January 21, 2013, # 10 Exhibit 10 − See 260 ., # 11 Exhibit 11 − Proof of Service) (Greenwood, Ruth) Modified on 3/20/2019: Removed duplicate text. Added exhibit descriptions. E−mail sent to counsel. (lak) (Entered: 03/19/2019)
Set/Reset Briefing Deadlines as to 257 Motion to Compel Deposition and Production of Documents by Robin J. Vos. Brief in Opposition due 4/3/2019. Brief in Reply due 4/10/2019. (voc/slc) (Entered: 03/20/2019)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 63 of 72

03/20/2019 03/25/2019 03/29/2019 04/03/2019 04/03/2019 04/03/2019

260 Exhibit to 259 Declaration, filed by Helen Harris, Leah Dudley, Margaret Leslie DeMuth, Emily Bunting, Wayne Jensen, Sandra Carlson−Kaye, Allison Seaton, Norah McCue, Michael Switzenbaum, Donald Winter, Judith Brey, Ann E. Stevning−Roe, Nancy Petulla, Graham Adsit, Warren Braun, William Whitford, Guy Costello, Jerome Wallace, Timothy B. Daley, Deborah Patel, Robert Pfundheller, Michael Lecker, Jennifer Estrada, Daniel Dieterich, Janet Mitchell, Rosalie Schnick, Barbara Flom, Roger Anclam, Elizabeth Lentini, Sara Ramaker, James Seaton, Gail Hohenstein, Edward Wohl, Ann Wolfe, Linea Sundstrom, Jane Pedersen, Mary Lynne Donohue, Hans Breitenmoser, Wendy Sue Johnson, Brent Brigson. Corrected Exhibit 10 − Letter dated March 18, 2019 and Attachments. (Greenwood, Ruth) Modified on 3/20/2019: Linked to the pending motion. (lak) (Entered: 03/20/2019)
261 Notice of Withdrawal of Motion re: 253 Motion for Protective Order by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. (Poland, Douglas) Modified on 3/26/2019. (lak) (Entered: 03/25/2019)
262 Stipulated Motion for Protective Order by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe, (Attachments: # 1 Text of Proposed Order) (Poland, Douglas) Modified on 4/1/2019. (lak) (Entered: 03/29/2019)
263 Brief in Opposition by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen re: 257 Motion to Compel, filed by Helen Harris, Leah Dudley, Margaret Leslie DeMuth, Emily Bunting, Wayne Jensen, Sandra Carlson−Kaye, Allison Seaton, Norah McCue, Michael Switzenbaum, Donald Winter, Judith Brey, Ann E. Stevning−Roe, Nancy Petulla, Graham Adsit, Warren Braun, William Whitford, Guy Costello, Jerome Wallace, Timothy B. Daley, Deborah Patel, Robert Pfundheller, Michael Lecker, Jennifer Estrada, Daniel Dieterich, Janet Mitchell, Rosalie Schnick, Barbara Flom, Roger Anclam, Elizabeth Lentini, Sara Ramaker, James Seaton, Gail Hohenstein, Edward Wohl, Ann Wolfe, Linea Sundstrom, Jane Pedersen, Mary Lynne Donohue, Hans Breitenmoser, Wendy Sue Johnson, Brent Brigson. (Keenan, Brian) (Entered: 04/03/2019)
264 ** TEXT ONLY ORDER ** The parties' proposed protective order, Dkt. 262 , is APPROVED. For clarity, documents that meet the definition of "confidential" in the protective order may be filed under seal without a further motion, in accordance with Administrative Order No. 337. As always, any filing under seal is subject to review of the court. Signed by District Judge James D. Peterson on 4/3/2019. (voc) (Entered: 04/03/2019)
265 Brief in Opposition by Third Party Defendant Robin J. Vos re: 257 Motion to Compel, filed by Helen Harris, Leah Dudley, Margaret Leslie DeMuth, Emily Bunting, Wayne Jensen, Sandra Carlson−Kaye, Allison Seaton, Norah McCue, Michael Switzenbaum, Donald Winter, Judith Brey, Ann E. Stevning−Roe, Nancy Petulla, Graham Adsit, Warren Braun, William Whitford, Guy Costello, Jerome Wallace, Timothy B. Daley, Deborah Patel, Robert Pfundheller, Michael Lecker, Jennifer Estrada, Daniel Dieterich, Janet Mitchell, Rosalie Schnick, Barbara Flom, Roger Anclam, Elizabeth Lentini, Sara Ramaker, James Seaton, Gail Hohenstein, Edward Wohl, Ann Wolfe, Linea Sundstrom, Jane Pedersen, Mary Lynne Donohue, Hans Breitenmoser, Wendy Sue Johnson, Brent Brigson. (Mortara, Adam) (Entered: 04/03/2019)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 64 of 72

04/03/2019
04/10/2019 04/10/2019
04/10/2019
04/24/2019 04/26/2019 04/26/2019 04/30/2019

266 Brief in Opposition by Intervenor Defendant Wisconsin State Assembly re: 257 Motion to Compel, filed by Helen Harris, Leah Dudley, Margaret Leslie DeMuth, Emily Bunting, Wayne Jensen, Sandra Carlson−Kaye, Allison Seaton, Norah McCue, Michael Switzenbaum, Donald Winter, Judith Brey, Ann E. Stevning−Roe, Nancy Petulla, Graham Adsit, Warren Braun, William Whitford, Guy Costello, Jerome Wallace, Timothy B. Daley, Deborah Patel, Robert Pfundheller, Michael Lecker, Jennifer Estrada, Daniel Dieterich, Janet Mitchell, Rosalie Schnick, Barbara Flom, Roger Anclam, Elizabeth Lentini, Sara Ramaker, James Seaton, Gail Hohenstein, Edward Wohl, Ann Wolfe, Linea Sundstrom, Jane Pedersen, Mary Lynne Donohue, Hans Breitenmoser, Wendy Sue Johnson, Brent Brigson. (Mortara, Adam) (Entered: 04/03/2019)
267 Deposition of Patrick E. Fuller taken on March 29, 2019. (Greenwood, Ruth) (Entered: 04/10/2019)
268 Brief in Reply by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of 257 Motion to Compel. (Greenwood, Ruth) (Entered: 04/10/2019)
269 Second Declaration of Ruth M. Greenwood filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 257 Motion to Compel, (Attachments: # 1 Exhibit 1 − Order from Benisek v. Lamone, Mar. 16, 2017, # 2 Exhibit 2 − Order from LWVMI v Johnson, May 23, 2018, # 3 Exhibit 3 − Order from Benisek v. Lamone, Jan. 31, 2017) (Greenwood, Ruth) Modified on 4/11/2019. (lak) (Entered: 04/10/2019)
270 Transcript of Scheduling Conference, held 2/1/2019 before Judge James D. Peterson. Court Reporter: CS. Please review the court's new policy regarding electronic transcripts of court proceedings: see Electronic Transcript Instructions. (voc) (Entered: 04/24/2019)
271 Notice of Appearance and Notice of Substitution filed by Clayton P. Kawski for Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen. (Kawski, Clayton) (Entered: 04/26/2019)
272 Notice by Intervenor Defendant Wisconsin State Assembly re: 257 Motion to Compel, (Attachments: # 1 Exhibit 1 − Foltz Subpoena, # 2 Exhibit 2 − Ottman Subpoena) (Mortara, Adam) Modified on 4/29/2019: Linked to the pending motion instead of the brief. (lak) (Entered: 04/26/2019)
273 Supplemental Brief in Reply by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of 257 Motion to Compel. (Greenwood, Ruth) (Entered: 04/30/2019)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 65 of 72

04/30/2019
05/03/2019 05/10/2019 05/10/2019 05/10/2019 05/10/2019 05/13/2019 05/20/2019 05/31/2019 05/31/2019 05/31/2019
06/03/2019 06/05/2019 06/05/2019

274 Third Declaration of Ruth Merewyn Greenwood filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 257 Motion to Compel, (Attachments: # 1 Exhibit 1 − Assembly's Initial Disclosures dated 12.13.2018) (Greenwood, Ruth) Modified on 5/1/2019. (lak) (Entered: 04/30/2019)
275 ORDER: It is ordered that plaintiffs' motion to compel discovery, Dkt. 257 , is granted as to the deposition of Robin Vos and requests for production nos. 1−3, 6−9, and 15. The motion is otherwise denied. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 5/3/2019. (voc) (Entered: 05/03/2019)
276 Emergency Motion to Stay Enforcement of this Court's May 3, 2019 Order by Third Party Defendant Robin J. Vos. Response due 5/17/2019. (Mortara, Adam) (Entered: 05/10/2019)
277 Brief in Support of 276 Emergency Motion to Stay Enforcement of this Court's May 3, 2019 Order by Third Party Defendant Robin J. Vos. (Mortara, Adam) (Entered: 05/10/2019)
278 Declaration of Joshua P. Ackerman filed by Third Party Defendant Robin J. Vos re: 276 Emergency Motion to Stay, (Attachments: # 1 Exhibit A − Letter from Ruth Greenwood, # 2 Exhibit B − Vos Subpoena) (Mortara, Adam) (Entered: 05/10/2019)
279 Notice by Third Party Defendant Robin J. Vos of Filing Petition for Writ of Mandamus, (Attachments: # 1 Exhibit A − Petition for Writ of Mandamus) (Mortara, Adam) (Entered: 05/10/2019)
280 ORDER denying 276 Motion to Stay by Third Party Defendant Robin J. Vos. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 5/13/2019. (voc) (Entered: 05/13/2019)
281 ORDER from USCA staying 275 Order on Motion to Compel. (voc) Modified on 5/21/2019. (arw) (Entered: 05/20/2019)
282 Joint Motion to Strike Plaintiffs' Supplemental Disclosures by Intervenor Defendant Wisconsin State Assembly. Brief in Opposition due 6/14/2019. Brief in Reply due 6/21/2019. (Mortara, Adam) Modified on 5/31/2019. (lak) (Entered: 05/31/2019)
283 Disregard. See 284 . Modified on 6/3/2019. (lak) (Entered: 05/31/2019)
284 Declaration of Taylor A. R. Meehan filed by Intervenor Defendant Wisconsin State Assembly re: 282 Joint Motion to Strike, (Attachments: # 1 Exhibit 1 − Plaintiffs' Amended Disclosures dated May 15, 2019, # 2 Exhibit 2 − Plaintiffs' Rule 26(a)(1) Initial Disclosures dated October 7, 2015, # 3 Exhibit 3 − Certain Plaintiffs' Supplemental Disclosures dated September 28, 2018, # 4 Exhibit 4 − Certain Plaintiffs' Rule 26(a)(1) Initial Disclosures dated September 28, 2018) (Mortara, Adam) (Entered: 05/31/2019)
Set/Reset Briefing Deadlines as to 282 Joint Motion to Strike Plaintiffs' Supplemental Disclosures. Brief in Opposition due 6/10/2019. Brief in Reply due 6/13/2019. (voc/JMM) (Entered: 06/03/2019)
285 NOTICE OF APPEAL by Robin J. Vos as to 275 Order on Motion to Compel. (Attachments: # 1 Certified Copy of USCA Order) (lak) (Entered: 06/05/2019)
286 Appeal Information Packet. (lak) (Entered: 06/05/2019)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 66 of 72

06/05/2019 06/05/2019 06/10/2019 06/10/2019 06/10/2019 06/10/2019 06/10/2019 06/10/2019 06/10/2019
06/10/2019
06/13/2019 06/14/2019 06/14/2019

287 Transmission of Notice of Appeal, Order and Docket Sheet to Seventh Circuit Court of Appeals re: 285 Notice of Appeal, (Attachments: # 1 Order, # 2 Docket Sheet) (lak) (Entered: 06/05/2019)
USCA Case Number 19−2066 for 285 Notice of Appeal filed by Robin J. Vos. (voc) (Entered: 06/05/2019)
288 Deposition of Daniel John Dieterich taken on 4/9/19. (Gaber, Mark) (Entered: 06/10/2019)
289 Deposition of Roger Anclam taken on 2/8/19. (Gaber, Mark) (Entered: 06/10/2019)
290 Deposition of Guy Costello taken on 1/31/19. (Gaber, Mark) (Entered: 06/10/2019)
291 Deposition of Michael Switzenbaum taken on 1/15/19. (Gaber, Mark) (Entered: 06/10/2019)
292 Deposition of Linea Sundstrom taken on 1/18/19. (Gaber, Mark) (Entered: 06/10/2019)
293 Deposition of Ann Stevning−Roe taken on 1/23/19. (Gaber, Mark) (Entered: 06/10/2019)
294 Brief in Opposition by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 282 Motion to Strike filed by Wisconsin State Assembly. (Gaber, Mark) (Entered: 06/10/2019)
295 Declaration of Mark P. Gaber filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe In Support of Plaintiffs' Opposition re: 282 Motion to Strike (Attachments: # 1 Exhibit 1 − Switzenbaum Interrogatory Responses, # 2 Exhibit 2 − Lentini Interrogatory Responses, # 3 Exhibit 3 − Stevning−Roe Interrogatory Responses, # 4 Exhibit 4 − Dieterich Interrogatory Responses, # 5 Exhibit 5 − Anclam Interrogatory Responses, # 6 Exhibit 6 − Sean P. Trende Expert Report (This has not been filed separately as an Expert Report.), # 7 Exhibit 7 − Adam Mortara June 7, 2019 Email) (Gaber, Mark) Modified on 6/11/2019. (lak) (Entered: 06/10/2019)
296 Joint Brief in Reply by Intervenor Defendant Wisconsin State Assembly in Support of 282 Joint Motion to Strike Plaintiffs' Supplemental Disclosures. (Mortara, Adam) (Entered: 06/13/2019)
Briefing set re: Plaintiffs' claims under the First Amendment right of association fall within the scope of the Supreme Court's mandate. Brief in Support due 6/14/2019. Brief in Opposition due 6/28/2019. (voc) (Entered: 06/14/2019)
297 Brief in Support of Issue being briefed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker,

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 67 of 72

06/14/2019 06/14/2019 06/14/2019 06/14/2019
06/14/2019
06/14/2019

Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe (Greenwood, Ruth) (Entered: 06/14/2019)
298 Rule 26(a)(3) Pretrial Disclosures by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen (Keenan, Brian) (Entered: 06/14/2019)
299 Rule 26(a)(3) Pretrial Disclosures by Intervenor Defendant Wisconsin State Assembly (Attachments: # 1 Exhibit A − Deposition Designations) (Mortara, Adam) (Entered: 06/14/2019)
300 Exhibit List by Intervenor Defendant Wisconsin State Assembly. (Mortara, Adam) (Entered: 06/14/2019)
301 Rule 26(a)(3) Pretrial Disclosures by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe (Attachments: # 1 Exhibit 1 − Plaintiffs' Deposition Designations, # 2 Exhibit 2 − Plaintiffs' Exhibit List) (Greenwood, Ruth) Modified on 6/17/2019. (kwf) (Entered: 06/14/2019)
302 Motion to Admit in Evidence Testimony by Deposition Designations of Any Plaintiff Who Does Not Testify Live at Trial by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Response due 6/21/2019. (Greenwood, Ruth) (Entered: 06/14/2019)
303 Declaration of Ruth Merewyn Greenwood filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 302 Motion to Admit in Evidence Testimony by Deposition Designations of Any Plaintiff Who Does Not Testify Live at Trial. (Attachments: # 1 Exhibit 1 Email from B Keenan to Whitford Counsel dated June 13, 2019, # 2 Exhibit 2 Email from A Mortara to Whitford counsel dated June 12, 2019, # 3 Exhibit 3 Order re: Parties Partial Stipulations and Report, League of Women Voters of Michigan v. Benson, 2:17−cv−14148 (E.D. Mich. 2019), ECF No. 234, # 4 Exhibit 4 Final Pretrial Order, Ohio A. Philip Randolph Institute v. Householder, 1:18−cv−357 (S.D. Ohio 2019), ECF No. 234, # 5 Exhibit 5 Bench Trial Transcript, Vol I of IV, League of Women Voters of North Carolina v. Rucho, 1:16−cv−1164 (M.D.N.C. 2017), ECF No. 103, # 6 Exhibit 6 Stenographic Transcript of Telephonic Scheduling Conference Held Before Chief Judge James D. Peterson, dated February 1, 2019) (Greenwood, Ruth) (Entered: 06/14/2019)

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 68 of 72

06/18/2019 06/19/2019 06/19/2019 06/21/2019 06/21/2019 06/21/2019 06/21/2019 06/21/2019 06/21/2019
06/21/2019 06/21/2019
06/25/2019

Set/Reset Briefing Deadlines as to 302 Motion to Admit in Evidence Testimony by Deposition Designations of Any Plaintiff Who Does Not Testify Live at Trial. Brief in Opposition due 6/21/2019. Brief in Reply due 6/25/2019. (voc/jmm) (Entered: 06/18/2019)
304 Transcript Request Form by Third Party Defendant Robin J. Vos re 285 Notice of Appeal (Mortara, Adam) (Entered: 06/19/2019)
305 Court Reporter Certification of Seventh Circuit Transcript Information Sheet re 285 Notice of Appeal. (voc) (Entered: 06/19/2019)
306 ORDER denying 282 Motion to Strike Plaintiffs' Supplemental Disclosures by Intervenor Defendant Wisconsin State Assembly. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson 6/21/2019. (voc) (Entered: 06/21/2019)
307 Deposition of Kenneth R. Mayer, Ph.D. taken on April 10, 2019. (Mortara, Adam) (Entered: 06/21/2019)
308 Expert Report of Kenneth R. Mayer, Ph.D. (Rebuttal Report) by Intervenor Defendant Wisconsin State Assembly. (Mortara, Adam) Modified on 6/24/2019: Sources are attached. (lak) (Entered: 06/21/2019)
309 Motion in Limine to Exclude Testimony From Kenneth R. Mayer Regarding Legislative Intent by Intervenor Defendant Wisconsin State Assembly. (Mortara, Adam) (Entered: 06/21/2019)
310 Objection to Rule 26(a)(3) Designations by Intervenor Defendant Wisconsin State Assembly (Attachments: # 1 Exhibit 1 − Objections to Plaintiffs Trial Exhibits) (Mortara, Adam) (Entered: 06/21/2019)
311 Joint Brief in Opposition by Intervenor Defendant Wisconsin State Assembly re: 302 Motion to Admit in Evidence Testimony by Deposition Designations of Any Plaintiff Who Does Not Testify Live at Trial, filed by Helen Harris, Leah Dudley, Margaret Leslie DeMuth, Emily Bunting, Wayne Jensen, Sandra Carlson−Kaye, Allison Seaton, Norah McCue, Michael Switzenbaum, Donald Winter, Judith Brey, Ann E. Stevning−Roe, Nancy Petulla, Graham Adsit, Warren Braun, William Whitford, Guy Costello, Jerome Wallace, Timothy B. Daley, Deborah Patel, Robert Pfundheller, Michael Lecker, Jennifer Estrada, Daniel Dieterich, Janet Mitchell, Rosalie Schnick, Barbara Flom, Roger Anclam, Elizabeth Lentini, Sara Ramaker, James Seaton, Gail Hohenstein, Edward Wohl, Ann Wolfe, Linea Sundstrom, Jane Pedersen, Mary Lynne Donohue, Hans Breitenmoser, Wendy Sue Johnson, Brent Brigson. Defendants Response In Opposition To Plaintiffs' Motion To Admit In Evidence Testimony By Deposition Of Any Plaintiff Who Does Not Testify Live At Trial. (Mortara, Adam) Modified on 6/24/2019. (lak) (Entered: 06/21/2019)
312 Objection to Rule 26(a)(3) Designations by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen, (Attachments: # 1 Exhibit 1 − Objections to Plaintiffs Trial Exhibits) (Keenan, Brian) (Entered: 06/21/2019)
313 Objections to Trial Exhibits by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. (Harless, Annabelle) (Entered: 06/21/2019)
314 Brief in Reply by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini,

Case: 3:15-cv-421 As of: 08/05/2020 11:53 AM CDT 69 of 72

06/25/2019
06/28/2019
06/28/2019 07/02/2019 07/03/2019 07/03/2019
07/09/2019

Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of 302 Motion to Admit in Evidence Testimony by Deposition Designations of Any Plaintiff Who Does Not Testify Live at Trial. (Greenwood, Ruth) Modified on 6/26/2019. (lak) (Entered: 06/25/2019)
315 Second Declaration of Ruth Merewyn Greenwood filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 302 Motion to Admit in Evidence Testimony by Deposition Designations of Any Plaintiff Who Does Not Testify Live at Trial, (Attachments: # 1 Exhibit 1 − Defendants' Response to Plaintiffs' First Set of Requests for Admission to Defendants Gill et al.) (Greenwood, Ruth) Modified on 6/26/2019. (lak) (Entered: 06/25/2019)
316 MOTION TO DISMISS For Lack Of Jurisdiction by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Brief in Opposition due 7/19/2019. Brief in Reply due 7/29/2019. (Poland, Douglas) (Entered: 06/28/2019)
317 Joint MOTION TO DISMISS by Intervenor Defendant Wisconsin State Assembly. Brief in Opposition due 7/19/2019. Brief in Reply due 7/29/2019. (Mortara, Adam) (Entered: 06/28/2019)
318 ORDER granting 316 Plaintiffs' Motion to Dismiss the case without prejudice; Denying 317 Defendants' motion to dismiss the case with prejudice. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 7/2/2019. (voc) (Entered: 07/02/2019)
319 JUDGMENT dismissing this case without prejudice for lack of jurisdiction. (voc) (Entered: 07/03/2019)
320 Motion to Defer Question of Entitlement to Costs and Expand Page Limitation for Briefing on Costs by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe. Response due 7/10/2019. (Gaber, Mark) (Entered: 07/03/2019)
321 ** TEXT ONLY ORDER ** Plaintiffs have filed a motion in which they ask the court to do two things: (1) defer a decision on whether defendants are entitled to costs; and (2) expand the page limitation for briefs on costs and fees to 35 pages. Dkt. 320 . The motion is GRANTED. Defendants should accompany their bill of costs with a brief addressing the question whether they are entitled to costs. In their response, plaintiffs may object to both the reasonableness of defendants' costs and their entitlement to costs. If defendants wish to

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file a reply brief, they may have until August 5, 2019, to do so. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 7/9/2019. (voc) (Entered: 07/09/2019)
322 Deposition of Wendy Sue Johnson taken on 1/24/2019. (Mortara, Adam) (Entered: 07/15/2019)
323 Deposition of William Curtis Whitford taken on 2/5/2019. (Mortara, Adam) (Entered: 07/15/2019)
324 Deposition of Janet Mitchell taken on 1/16/2019. (Mortara, Adam) (Entered: 07/15/2019)
325 Deposition of Brent Joseph Brigson taken on 1/24/2019. (Mortara, Adam) (Entered: 07/15/2019)
326 Motion for Attorney Fees by Intervenor Defendant Wisconsin State Assembly. Brief in Opposition due 8/5/2019. Brief in Reply due 8/15/2019. (Mortara, Adam) (Entered: 07/15/2019)
327 Declaration of Taylor A.R. Meehan filed by Intervenor Defendant Wisconsin State Assembly re: 326 Motion for Attorney Fees, (Attachments: # 1 Exhibit 1 − Jan. 2019 Correspondence Regarding Stay, # 2 Exhibit 2 − Plaintiffs' First Set of Request for Admission, # 3 Exhibit 3 − Plaintiffs' First Set of Interrogatories, # 4 Exhibit 4 − Mar. 2019 Letter Regarding 30(b)(6) Deposition, # 5 Exhibit 5 − Assembly's Response to Plaintiffs' Request for Production) (Mortara, Adam) Modified on 7/16/2019. (lak) (Entered: 07/15/2019)
328 Bill of Costs by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen. Motions referred to Peter A. Oppeneer, Clerk of Court. Objection to Bill of Costs due 7/25/2019. Brief in Support to Bill of Costs due 8/5/2019. Brief in Reply in Opposition to Bill of Costs due 8/9/2019. (Attachments: # 1 Exhibit − Invoice Examples) (Keenan, Brian) (Entered: 07/15/2019)
329 Brief in Support of 328 Bill of Costs, by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen. (Keenan, Brian) (Entered: 07/15/2019)
330 Bill of Costs by Intervenor Defendant Wisconsin State Assembly. Motions referred to Peter A. Oppeneer, Clerk of Court. Objection to Bill of Costs due 7/25/2019. Brief in Support to Bill of Costs due 8/5/2019. Brief in Reply in Opposition to Bill of Costs due 8/9/2019. (Mortara, Adam) (Entered: 07/15/2019)
331 Brief in Support of Bill of Costs by Intervenor Defendant Wisconsin State Assembly re: 330 Bill of Costs filed by Wisconsin State Assembly. (Mortara, Adam) (Entered: 07/15/2019)
332 Declaration of Taylor A.R. Meehan filed by Intervenor Defendant Wisconsin State Assembly re: 330 Bill of Costs, (Attachments: # 1 Exhibit A − Copy of Assembly's Bill of Costs, # 2 Exhibit B − Plaintiffs' First Set of Request for Admission, # 3 Exhibit C − Plaintiffs' First Set of Interrogatories, # 4 Exhibit D − Fees of the Clerk, # 5 Exhibit E − Fees of the Marshal, # 6 Exhibit F − Deposition Invoices, # 7 Exhibit G − Transcription Invoices, # 8 Exhibit H − Collection Invoice, # 9 Exhibit I − Mar. 2019 Correspondence Regarding Depositions, # 10 Exhibit J − Dec. 2018 Correspondence Regarding Depositions, # 11 Exhibit K − Expert Witness Travel and Lodging Invoices, # 12 Exhibit L − Record of Expert's Madison Flight) (Mortara, Adam) Modified on 7/16/2019. (lak) (Entered: 07/15/2019)
Per Dkt. # 318 Set/Reset Briefing Deadlines as to 326 Motion for Attorney Fees by Intervenor Defendant Wisconsin State Assembly, 330 Bill of Costs by Intervenor Defendant Wisconsin State Assembly , 328 Bill of Costs by Defendants Beverly R.

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Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen . Brief in Opposition due 7/29/2019. (voc/aw) (Entered: 07/16/2019)
333 Brief in Opposition by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 330 Bill of Costs, filed by Wisconsin State Assembly, 328 Bill of Costs, filed by Dean Knudson, Julie M. Glancey, Mark L. Thomsen, Beverly R. Gill, Ann S. Jacobs, Jodi Jensen. (Gaber, Mark) (Entered: 07/29/2019)
334 Declaration of Mark P. Gaber filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of Plaintiffs' Opposition re: 330 Bill of Costs, 328 Bill of Costs, (Attachments: # 1 Exhibit 1 − WEC Categorically Nontaxable Costs, # 2 Exhibit 2 − Assembly Categorically Nontaxable Costs) (Gaber, Mark) Modified on 7/30/2019. (lak) (Entered: 07/29/2019)
335 Declaration of Jeffrey A. Mandell filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of Plaintiffs' Opposition re: 330 Bill of Costs, 328 Bill of Costs, (Attachments: # 1 Exhibit A − 7/2/19 Emails, # 2 Exhibit B − 7/22/19 Emails) (Gaber, Mark) Modified on 7/30/2019. (lak) (Entered: 07/29/2019)
336 Declaration of Amy Sue Vruwink filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of Plaintiffs' Opposition re: 330 Bill of Costs, 328 Bill of Costs. (Gaber, Mark) (Entered: 07/29/2019)
337 Declaration of Dr. Brittany Keyes filed by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe in Support of Plaintiffs' Opposition re: 330 Bill of Costs, 328 Bill of Costs, (Gaber, Mark) (Entered:

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338 Brief in Opposition by Plaintiffs Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson−Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning−Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, William Whitford, Donald Winter, Edward Wohl, Ann Wolfe re: 326 Motion for Attorney Fees filed by Wisconsin State Assembly. (Gaber, Mark) (Entered: 07/29/2019)
339 ORDER from USCA dismissing appeal as to 285 Notice of Appeal filed by Robin J. Vos No record to be returned. (Attachments: # 1 Notice of Issuance of Mandate) (voc) (Entered: 08/02/2019)
340 Brief in Reply by Intervenor Defendant Wisconsin State Assembly in Support of 326 Motion for Attorney Fees. (Mortara, Adam) (Entered: 08/05/2019)
341 Declaration of Kevin M. St. John filed by Intervenor Defendant Wisconsin State Assembly re: 326 Motion for Attorney Fees, (Attachments: # 1 Exhibit 1 − May 6, 2019 Correspondence, # 2 Exhibit 2 − May 16, 2019 Correspondence, # 3 Exhibit 3 − Foltz's Responses & Objections, # 4 Exhibit 4 − Ottman's Response & Objections) (Mortara, Adam) (Entered: 08/05/2019)
342 Brief in Reply by Intervenor Defendant Wisconsin State Assembly in Support of 330 Bill of Costs. (Mortara, Adam) (Entered: 08/05/2019)
343 Disregard. See 346 . Modified on 8/6/2019. (lak) (Entered: 08/05/2019)
344 Declaration of Taylor A.R. Meehan filed by Intervenor Defendant Wisconsin State Assembly re: 330 Bill of Costs. (Mortara, Adam) (Entered: 08/05/2019)
345 Declaration of Jonathan Bobb filed by Intervenor Defendant Wisconsin State Assembly re: 330 Bill of Costs. (Mortara, Adam) (Entered: 08/05/2019)
346 Brief in Reply by Defendants Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, Mark L. Thomsen in Support of 328 Bill of Costs, (Keenan, Brian) (Entered: 08/06/2019)
347 ORDER: It is ordered that the Assembly's motion for attorney's fees, Dkt. 326 , is denied. The WEC and the Assembly's requests for an award of costs, Dkt. 328 and Dkt. 330 , are denied. Signed by Judges Kenneth F. Ripple, William C. Griesbach and James D. Peterson on 8/22/2019. (voc) (Entered: 08/22/2019)