Rucho v Common Cause Brief Amici Curiae in Support of Appellees

    Nos. 18-422,18-726

In the

Supreme (tort of tl]r Hnitsi States

ROBERT A. RUCHO, et al.,

Appellants,

v.

COMMON CAUSE, et al.,

Appellees.

(For Continuation of Caption See Inside Cover)

On A ppeal from the United States D istrict Courts for 
the M iddle D istrict of North Carolina and M aryland

BRIEF OF AMICI CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC.; 

LATINOJUSTICE PRLDEF; ASIAN AMERICANS 
ADVANCING JUSTICE; ASIAN AMERICAN LEGAL 

DEFENSE AND EDUCATION FUND; 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 
L eah C. A den 
NAACP L egal Defense 

& E ducational F und, Inc. 
40 Rector Street, 5th Floor 
New York, New York 10006 
(212) 965-2200

Justin L evitt 
Counsel of Record 

L oyola L aw School*
919 Albany Street 
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) 

March 8,2019_________________________________
287244

mailto:justin.levitt@lls.edu


LINDA H. LAMONE, et al.,

Appellants,

v.

0. JOHN BENISEK, et al.,

Appellees.

Jennifer A. H olmes 
NAACP L egal D efense 

& E ducational F und, Inc. 
700 14th Street N.W., Suite 600 
Washington, DC 20005 
(202) 682-1300

Laura W. Brill 
Nicholas F. Daum 
K endall Brill & K elly LLP  
10100 Santa Monica Blvd., 

Suite 1725
Los Angeles, California 90067 
(310) 556-2700

Counsel for Amici Curiae



TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI......................................... 1

INTRODUCTION AND SUMMARY OF
THE ARGUMENT.......................................................... 1

A. A  Cause of Action for Partisan
Gerrymandering Is Justiciable and 
Requires Proof o f Invidious 
Discrimination Against Voters Based 
on Their Political Party Affiliation.............5

B. A  Properly Structured Claim for 
Partisan Gerrymandering Is 
Consistent with the Voting Rights A ct... 19

C. A  Properly Structured Claim for 
Partisan Gerrymandering W ill Help 
Avoid Detrimental Distortion in Cases 
Brought Under Doctrines Involving
R ace.......................................................................... 23

CONCLUSION.............................................................33

APPENDIX................................................................... la



TABLE OF AUTHORITIES

Page(s)
Federal Cases

Abbott v. Perez, 138 S. Ct. 2305 (2018)..................... 30

Bartlett v. Strickland, 556 U.S. 1 (2009).................. 24

Batson v. Kentucky, 476 U.S. 79 (1986)....................17

Benisek v. Lamone, 138 S. Ct. 1942 (2018).................7

Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 
788 (2017)..........................................................19

City of Greensboro v. Guilford Cnty. Bd. of Elections, 
251 F. Supp. 3d 935 (M.D.N.C. 2017)...... 11, 13

Clarke v. City of Cincinnati, 40 F.3d 807 (6th Cir.
1994).................................................................. 22

Comm, for a Fair & Balanced Map v. III. State Bd. of
Elections, 835 F. Supp. 2d 563 (N.D. 111. 2011) 
(three-judge court)........................................... 28

Cooper v. Harris, 137 S. Ct. 1455 (2017)....... 2, 28, 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)............................................. 24

Davis v. Bandemer, 478 U.S. 109 (1986)..............5, 18

Easley v. Cromartie, 532 U.S. 234 (2001)................. 30

Gaffney v. Cummings, 412 U.S. 735 (1973)........... 6, 8

u



Garza v. Cnty. of Los Angeles, 918 F.2d 763 (9th Cir. 
1990)..............................................................1, 29

Gill v. Whitford, 138 S. Ct. 1916 (2018)......................7

Goosby v. Town of Hempstead, 956 F. Supp. 326
(E.D.N.Y. 1997)................................................. 21

Goosby v. Town of Hempstead, 180 F.3d 476 (2d Cir. 
1999) ..................................................................28

Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 1972) 
(three-judge court), aff'd in part sub nom.
White v. Regester, 412 U.S. 755 (1973)..........25

Harris v. Ariz. Ind. Redistricting Comm’n, 136 S. Ct. 
1301 (2016).................................................12, 22

Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) 
............................................................. ........................6

Hulme v. Madison Cnty., 188 F. Supp. 2d 1041 (S.D. 
111. 2001)..................................................... 11, 13

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).........................................25, 26

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984) ....29

Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) 
(three-judge court), aff’d, 542 U.S. 947 (2004) 
...................................................................... 11, 14

League of United Latin Am. Citizens (“LULAC”) v.
Perry, 548 U.S. 399 (2006)......................passim

iii



Lozman v. City of Riviera Beach, 138 S. Ct. 1945
(2018)................................................................ 14

McCreary Cnty. v. Am. Civil Liberties Union ofKy.,
545 U.S. 844 (2005)............................. 12, 17, 19

McMillan v. Escambia Cnty., Fla., 748 F.2d 1037
(11th Cir. 1984)................................................30

N.C. State Conference of NAACP v. McCrory, 831 
F.3d 204 (4th Cir. 2016), cert, denied, 137 S.
Ct. 1399 (2017).................................................. 29

One Wis. Institute, Inc. v. Thomsen, 198 F. Supp. 3d 
896 (W.D. Wis. 2016), appeal docketed, No. 16- 
3091 (7th Cir. Aug. 3, 2016)............................. 29

Perez v. Abbott, 253 F. Supp. 3d 864 (W.D. Tex. 2017) 
(three-judge court).............................. 27, 30, 31

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256
(1979)..............................................  10, 13, 15, 17

Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of
Elections, 827 F.3d 333 (4th Cir. 2016).... 11, 13

Rodgers v. Lodge, 458 U.S. 613 (1982)....................... 24

Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md.
2016) (three-judge court)................................... 6

Shelby Cnty. v. Holder, 570 U.S. 529 (2013)...... 20, 24

Smith v. Clinton, 687 F.Supp. 1310 (E.D. Ark. 1988) 
(three-judge court)............................................22

IV



Thornburg v. Gingles, 478 U.S. 30
(1986).............................................. 20, 21, 23, 28

United States v. Charleston Cnty., 365 F.3d 341 (4th 
Cir. 2004)...........................................................30

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en
banc), cert, denied, 137 S. Ct. 612 (2017)...... 29

Vieth v. Jubelirer, 541 U.S. 267 (2004)...................3, 8

Vill. of Arlington Heights v. Metro. Hous. Dev’p Corp., 
429 U.S. 252 (1977)............................... 7, 12, 13

White v. Regester, 412 U.S. 755 (1973)................24, 25

White v. Weiser, 412 U.S. 783 (1973).......................... 9

Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis.
2016) (three-judge court), vacated on other 
grounds, 138 S. Ct. 1916 (2018).....................12

Federal Statutes and Legislative Materials

S. Rep. No. 417, 97th Cong., 2d Sess. (1982)........... 20

Voting Rights Act of 1965, 52 U.S.C. § 10301 et seq.
.....................................................................................................................20, 21

State Constitutions

Fla. Const, art. Ill, § 16(c)........................................11

v



State Cases

In re Senate Joint Resolution of Legislative
Apportionment 1176, 83 So.3d 597 (Fla. 2012) 
........................................................................... 11

In re Senate Joint Resolution of Legislative
Apportionment 2-B, 89 So.3d 872 (Fla. 2012) 
........................................................................... 11

League of Women Voters of Fla. v. Detzner, 172 So. 3d 
363 (Fla. 2015)............................................11, 13

League of Women Voters of Fla. v. Detzner, 179 So. 3d 
258 (Fla. 2015)....................................................11

League of Women Voters of Pa. v. Pennsylvania, 178 
A.3d 737 (Pa. 2018)............................................ 11

Other Authorities

Bruce E. Cain & Emily R. Zhang, Blurred Lines:
Conjoined Polarization and Voting Rights, 77 
OHIO St. L.J. 867 (2016)..................................31

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).......... 31

Samuel Issacharoff & Pamela S. Karlan, Where to 
Draw the Line?: Judicial Review of Political 
Gerrymanders, 153 U. PA. L. Rev. 541 (2004) 32

vi



Elena Kagan, Private Speech, Public Purpose: The 
Role of Governmental Motive in First 
Amendment Doctrine, 63 U. Cffl. L. Rev. 413 
(1996)...........................................................10, 18

Michael S. Kang, Gerrymandering and the
Constitutional Norm Against Government 
Partisanship, 116 MlCH. L. Rev. 351 (2017).. 10

Justin Levitt, Intent is Enough: Invidious
Partisanship in Redistricting, 59 Wm. & MARY 
L. REV. 1993 (2018)........................................8, 9

vii



INTEREST OF AMICI CURIAE1

Amici, listed individually in the Appendix to 
this brief, are among the country’s leading civil rights 
organizations. They 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

“[E]lected officials engaged in the single- 
minded pursuit of incumbency can run roughshod 
over the rights of protected minorities.” Garza u. 
Cnty. 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 methodically 
subordinating voters who support an opposing party.

1 Pursuant to Supreme Court Rule 37.3, counsel for amici 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 amici curiae certify that 
no counsel for a party authored this brief, in whole or in part, and 
that no person or entity, other than amici curiae and their 
counsel, made a monetary contribution to its preparation or 
submission.

1



Minority communities have often been pawns 
deployed or sacrificed in the pursuit of this partisan 
entrenchment.

There is no active claim that the maps 
presently before the Court built their partisan 
advantage on the backs of minority voters. But the 
North Carolina plan at issue here is the successor to 
a map that impermissibly packed minority voters to 
achieve similar partisan gains, Cooper v. Harris, 137 
S. Ct. 1455 (2017); Rucho J.S. App. 155, 180-81. 
Jurisdictions in both Maryland and North Carolina— 
among many others—have in the past used racial 
discrimination, provable and less provable, as a tool to 
achieve partisan ends. If the Court withdraws the 
judiciary from policing the boundaries of partisan 
excess manifested by the record in these cases, brazen 
partisan misconduct will follow here and in other 
jurisdictions with unified partisan control of the 
redistricting process. History teaches that minority 
voters will inevitably be caught again in the crossfire.

Amici hope to assist this Court in considering 
the ramifications of the doctrine and practice of 
partisan gerrymandering on minority voters. In 
particular, as amici explain, a partisan 
gerrymandering claim requiring proof of invidious 
intent—driven by the desire to subordinate some 
voters based on their party affiliation and the desire 
to entrench an opposing party in power—will help to 
establish an administrable standard that guards 
against excessive partisanship in the redistricting 
process without undermining critical protections for 
minority voters.

2



When this Court as a whole last meaningfully 
considered the merits of a cause of action for 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); 
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 Appellees make clear, such standards exist, 
and can be fully compatible with federal law 
protecting minority representation and political 
participation. This Court should establish a standard 
for adjudicating claims of partisan gerrymandering 
that ensures that such claims succeed only when 
plaintiffs prove invidious discrimination distinct from 
legitimate political choices. In the instant cases, each 
three-judge court found that the political party 
controlling state government intended to lock in 
partisan dominance of the state’s congressional 
delegation, 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 Rucho 
J.S. App. 155, 222, 286-88, 306; Benisek J.S. App. 12a, 
16a, 23a-24a, 48a, 51a. Indeed, in each case at issue 
here, the intent to use government authority to 
subordinate opposition voters on the basis of their 
political affiliation was plain—and at times, both 
public and proud. See Rucho J.S. App. 156-57, 185; 
Benisek J.S. App. 23a-24a. It is entirely consistent

3



with the Court’s prior jurisprudence to find that such 
extreme conduct entails impermissible 
discrimination, and requires no more than the 
deployment of familiar evidentiary tools. And as the 
Court’s experience already demonstrates, such a 
holding would not likely subject federal courts to a 
flood of insubstantial claims.

Indeed, a viable cause of action addressing 
egregious partisan gerrymandering may assist the 
courts. Causes of action in which race and racial 
discrimination are central to the legal doctrine are 
essential in addressing some of the deepest and most 
pernicious forms of discrimination. That includes 
legislation abusing race as a proxy for party, or 
otherwise targeting minorities for disfavored 
treatment based on other underlying motives, 
including the pursuit of partisan gain. But when both 
race and party play a role in legislators’ pursuit of 
impermissible advantage, real partisan harms may 
accompany very real racial harms; in these instances, 
a claim to root out unconstitutional partisan excesses, 
alongside doctrine tailored to address racial 
discrimination, would ensure the presence of a 
distinct, properly tailored tool to address each distinct 
injury. And at times, we have also observed that 
litigants whose primary concerns are partisan will 
occasionally attempt to misuse unwarranted race- 
based voting claims for their own ends. A properly 
structured cause of action for partisan 
gerrymandering can help courts better distinguish 
and channel claims down the appropriate litigation 
paths, avoiding unwelcome doctrinal distortion and 
providing full redress for invidious discrimination of 
all forms.

4



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 Am. 
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 various 
constitutional theories. Each three-judge court 
correctly determined that invidious intent was an 
essential element of such a standard no matter the 
constitutional clause involved, and found facts 
supporting proof of invidious intent. Rucho J.S. App. 
141-42, 155-87, 227-74, 280-88, 305-13; Benisek J.S. 
App. 42a-43a, 51a, 59a, 61a, 76a n.3. A justiciable 
standard for claims that partisan gerrymandering 
violates the Constitution—drawn from any of several 
textual predicates, and whatever its other elements— 
ought to require proof of invidious intent to 
subordinate voters, driven by a focus on their partisan 
affiliation and with the goal of entrenching an 
opposing political party’s power. And this Court need 
not determine the outer bounds of such a requirement 
to recognize that neither three-judge court clearly 
erred in finding the record in these cases sufficient to 
support a finding of constitutionally invidious action.

5



Requiring proof of this sort of invidious intent 
to subordinate 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) (emphasis added).

This Court has also clearly held that the First 
Amendment prohibits the government from deploying 
state power with an invidious intent to harm on the 
basis of partisan affiliation. A public employer may 
demote an employee for many reasons that do not 
offend the Constitution. But the First 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, 1417-18 (2016). That is, 
“the government’s reason for 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 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 
thus provides a well-understood structure for claims 
challenging the constitutionality of a State’s

6



redistricting legislation—a discernable and
manageable standard.”).

The manifestation of invidious intent also 
played a central role in last year’s oral argument in 
Gill v. Whitford. Justice Kennedy repeatedly asked 
whether a law facially proclaiming the use of all 
legitimate redistricting factors to favor one party (and 
disfavor another) would be constitutional—a 
hypothetical Justice Alito described as incorporating 
a “perfectly manageable standard.” See Transcript of 
Oral Argument at 19-20, 26-27, Gill v. Whitford, 138 
S. Ct. 1916 (2018) (No. 16-1161). The question sets 
aside methods of proof, and highlights instead the 
legal crux of the matter: a driving insistence on using 
state authority to entrench the political power of a 
group of voters favored based on their partisan 
preferences, and to similarly subordinate a group 
singled out as disfavored based on different partisan 
preferences. The attorney representing Wisconsin’s 
legislature correctly acknowledged that such a statute 
would violate both the Equal Protection Clause and 
the First Amendment. Id. at 27; see also Transcript of 
Oral Argument at 46-47, Benisek v. Lamone, 138 S. 
Ct. 1942 (2018) (No. 17-333) (revealing Justice 
Kennedy’s return to the same question, with a similar 
answer).

To be sure, the evidence of unconstitutional 
conduct will not always be as clear as in Justice 
Kennedy’s hypothetical. Some violations will be 
plainly marked and some will be perpetrated under 
pretext, to be smoked out via familiar judicial tools, 
cf., e.g., Vill. of Arlington Heights v. Metro. Hous. 
Dev’p Corp., 429 U.S. 252, 266 (1977). The fact that

7



some plaintiffs will fail to muster the necessary 
evidence to prevail is not reason to deny the existence 
of a cause of action. Justice Kennedy’s questions 
reveal that there is a fundamental and widely 
acknowledged harm at the heart of these cases.

A gerrymandering cause of action that requires 
proof of invidious intent to subordinate voters driven 
by a desire to harm them for 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. There is a distinction between 
proper political contestation and improper partisan 
subordination of voters because of their preferred 
group affiliation. The vast majority of legislation 
involves 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 
that present opportunities for partisan posturing, but 
they do not necessarily 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 . & 
MaryL. Rev. 1993, 2013-18 (2018).

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

8



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 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 about whether to 
protect the relationship of incumbents to their 
constituents, by consistently maintaining the cores of 
prior districts (as distinct from 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 may properly be political and practical 
choices. Prohibiting state action driven by the 
invidious intent to subordinate on the basis of 
partisan affiliation leaves each of these legitimate 
political choices intact. See Levitt, supra, at 2025-27.

A state actor’s invidious intent to methodically 
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 appropriate 
means by which a legislator gains partisan advantage 
is through policy action that increases the legislator’s 
appeal to voters with partisan policy preferences.

9



Such conduct is quite distinct from state action driven 
by a design to lock in a legislator’s electoral success 
not by appealing to voters, but by targeting presumed 
opposing voters for systematic subordination through 
changes to the electoral landscape itself. Cf. Elena 
Kagan, Private Speech, Public Purpose: The Role of 
Governmental Motive in First Amendment Doctrine, 
63 U. CHI. L. Rev. 413, 428-29 (1996) (recognizing 
constitutional limits on government restrictions of 
speech because that speech may threaten incumbent 
self-interest).

Finally, focusing on the invidious intent to 
subordinate does not demand a process blind to 
partisan inputs or partisan outcomes. Neither a 
legislator’s knowledge that certain communities are 
more likely to vote for Democratic or Republican 
candidates, nor that given districts are more likely to 
lean Democratic or Republican, is itself indicative of 
the intent to entrench power at opponents’ expense. 
Michael S. Kang, Gerrymandering and the 
Constitutional Norm Against Government 
Partisanship, 116 MlCH. L. Rev. 351, 352, 368 (2017); 
cf. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 
279 (1979). And this Court has long recognized the 
proper distinction between a legislature’s permissible 
consideration of community characteristics and the 
impermissible intent to subordinate community 
voting power because of those characteristics. See 
LULAC, 548 U.S. at 513-14 (Scalia, J., concurring in 
the judgment in part and dissenting in part).

Both state and federal courts have been able to 
identify legally cognizable invidious intent, distinct 
from the standard rough-and-tumble of other political

10



choices. In Larios v. Cox, 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 to 
subordinate. 300 F. Supp. 2d 1320, 1329-30, 1334 
(N.D. Ga. 2004) (three-judge 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 that the 
districts’ population deviations were driven by the 
invidious partisan intent of the North Carolina state 
legislature. 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, 251 F. Supp. 3d 935, 937, 939, 
943 (M.D.N.C. 2017) (North Carolina state
legislature); Hulme v. Madison Cnty., 188 F. Supp. 2d 
1041, 1050 (S.D. 111. 2001) (Madison County, Illinois, 
county board). Florida and Pennsylvania state courts 
have also examined redistricting plans for invidious 
partisan intent under their respective state 
constitutions. See Fla. CONST, art. Ill, § 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 Fla. v. Detzner, 172 So.3d 363, 378- 
86, 391-93, 402-13 (Fla. 2015); League of Women 
Voters of Fla. v. Detzner, 179 So.3d 258, 271-74, 
279-80, 284 (Fla. 2015); League of Women
Voters of Pa. v. Pennsylvania, 178 A.3d 737, 817-21 
(Pa. 2018). And, of course, the three-judge courts in

11



the instant actions were able to distinguish invidious 
partisan intent to subordinate from the many other 
legitimate political and practical choices involved in 
drawing the particular districts at issue. Rucho J.S. 
App. 155-87, 227-74; Benisek J.S. App. 55a-56a; see 
also Whitford u. Gill, 218 F. Supp. 3d 837, 883-98 
(W.D. Wis. 2016) (three-judge court), vacated on other 
grounds, 138 S. Ct. 1916 (2018) (Wisconsin state 
legislative map).

In other cases, the evidence has not supported 
the allegations of invidious unconstitutional action in 
the redistricting process. For instance, 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). And in the instant North Carolina 
case, the three-judge court rejected a district-specific 
showing of invidious intent with respect to District 5. 
Rucho J.S. App. 243.

All of these courts used familiar tools to test for 
invidious partisan intent in the redistricting process, 
seeking “an understanding of official objective 
emerging] from readily discoverable fact, without any 
judicial psychoanalysis of a drafter’s heart of hearts.” 
McCreary Cnty. v. Am. Civil Liberties Union of Ky., 
545 U.S. 844, 862 (2005). Following this Court’s 
direction for assessing official 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, 429 
U.S. at 266. Particularly when a redistricting plan

12



proved to be a significant outlier, its excessive 
partisan impact occasionally provided “an important 
starting point,” Feeney, 442 U.S. at 279 (quoting Vill. 
of 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 Raleigh Wake 
Citizens Ass’n, 827 F.3d at 346; City of Greensboro, 
251 F. Supp. 3d at 943-49; League of Women Voters of 
Fla., 172 So.3d at 380-86, 390-91; 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, in fact, materially driven not 
by invidious partisan intent to subordinate but by 
legitimate legislative motives. Id.

Courts do not lightly make such 
determinations. Nor do plaintiffs lightly bring such 
cases. Appellants suggest—as defendants in such 
circumstances often do—that once the judicial doors 
are opened they will be torn off in a flood of frivolous 
litigation. Rucho App. Br. 39. Experience indicates 
otherwise. Since at least 2004, federal courts have 
been available to hear claims that invidious 
partisanship impermissibly motivated minor 
variations in district population. Since 2004, there 
have been thousands of state and local legislative 
maps, pre-existing and newly drawn, with a minor

13



population variance. But Larios has been cited only 
seven times by federal appellate courts substantively 
reviewing allegations of improper political motivation 
in the redistricting process.

Still, even if the marginal case posed concerns, 
the records here stand far from the marginal case. 
Lozman v. City of Riviera Beach, 138 S. Ct. 1945 
(2018), just last Term, may provide an apt analogy. 
Lozman concerned the arrest of a civic gadfly at a city 
council meeting, allegedly pursuant to a premeditated 
city policy to intimidate him in retaliation for his 
activism. Id. at 1954. The legality of the arrest 
turned on proof of impermissible motive, and the court 
expressly noted the “risk that the courts will be 
flooded with dubious retaliatory arrest suits.” Id. at 
1953. But in the face of objective evidence of a 
potentially premeditated plan, this Court decided the 
case before it and left the floodgate concerns for the 
future. Id. at 1954. “[Wjhen retaliation against 
protected speech is elevated to the level of official 
policy, there is a compelling need for adequate 
avenues of redress.” Id.

There will likely be no official policy to 
subordinate voters on the basis of partisan affiliation 
clearer than the policy firmly established here — and 
openly acknowledged by the governing political 
parties in North Carolina and Maryland. Each three- 
judge 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 
in question specifically “because o f’ its ability to 
entrench one party in power and subordinate voters 
affiliated with an opposing party. Rucho J.S. App.

14



155; Benisek J.S. App. 48a-51a; see also Feeney, 442 
U.S. at 279. In North Carolina, this purpose was 
officially declared in the formal criteria established by 
the state, and proudly promoted in the public hearings 
of the legislature’s redistricting committee. Rucho 
J.S. App. 156-57, 183. The public record established 
by the North Carolina legislature is, in effect, Justice 
Kennedy’s hypothetical question from the oral 
arguments in Gill and Benisek come to life. Likewise, 
in Maryland, legislators acknowledged in talking 
points and floor speeches their drive to accomplish 
similar partisan entrenchment with respect to the 
district at issue. Benisek J.S. App. 23a-24a.

The three-judge courts also found that in each 
state, the mapmakers’ intent was clear not only from 
express statements, but also from other familiar 
evidentiary sources—such as the redistricting process 
itself, the information relied upon in drawing the map, 
and empirical evidence of the strong partisan 
advantage present in the final maps approved by the 
legislatures. In North Carolina, the Republican Party 
held exclusive control of the map drawing process, 
working with a consultant to finalize the map before 
the bipartisan redistricting committee had even met 
or adopted governing redistricting criteria and before 
public hearings were held. Rucho J.S. App. 156. No 
public input was considered as a part of the map 
drawing process; however, mapmakers relied strongly 
on past election results in their analysis to develop a 
map that “would favor Republicans for the remainder 
of the decade.” Id. at 158. Indeed, in a 50-50 state, 
the map was designed to elect 10 Republicans and 3 
Democrats, only because (as the legislative leadership 
bragged) they did “not believe it[ would be] possible to

15



draw a map with 11 Republicans and 2 Democrats,” 
id. at 183—and the map achieved its primary goal in 
a manner that left it an “extreme statistical outlier,” 
id. at 159-172.

Likewise, in Maryland, the court found that 
“with respect to the mapmakers’ intent, the process 
described in the record admits of no doubt.” Benisek 
J.S. App. 48a. Although the Redistricting Advisory 
Committee held public hearings and was ostensibly 
tasked with recommending a map, privately, 
Democratic representatives retained a consulting firm 
to draw proposed maps with the exclusive goals of 
maximizing Democratic incumbent protection and 
enlarging Democratic congressional power. Id. at 14a. 
Maryland Democratic officials were guided by “a 
narrow focus on diluting the votes of Republicans.” Id. 
at 48a. Accordingly, the mapmakers relied on a 
custom-tailored partisan index to ensure that a 
generic Democratic candidate would win the Sixth 
District, and rejected alternative maps that placed the 
outcome in greater doubt. Id. at 15a-17a. As a result, 
according to analysis by the Cook Political Report, as 
compared to the preexisting map, under the new 
redistricting plan, the Sixth District “experienced the 
single largest [partisan] swing of any district in the 
Nation.” Id. at 24a-25a. The map was approved by 
the Advisory Committee and subsequently, the 
General Assembly, both without a single Republican 
vote. Id. at 20a, 23a.

Amici recognize that neither the North 
Carolina and Maryland legislatures’ partisan 
excesses nor their candor may presently or in the 
future reflect the norm. Absent this Court’s

16



affirmation of the three-judge courts’ decisions, 
however, it is difficult to understand why they would 
not become the new status quo, demonstrating to 
citizens that expressions of political affiliation are not 
constitutionally protected but available grounds for 
punishment by the state. Surely, this Court is capable 
of policing the worst excesses of partisan 
discrimination to preserve the ability of voters to 
express their political views through the ballot box 
without fear of reprisals from the governing political 
party.

Indeed, intervention here is vital even if it 
yields malfeasance less explicit in the future. (If less 
explicit malfeasance is likely to also be a bit less 
excessive, that would be a welcome consequence on its 
own.) Invidious intent cannot be assumed, see Feeney, 
442 U.S. at 278-79, but must instead be proven. The 
standard is a demanding one, and necessarily means 
that a doctrinal requirement to prove the invidious 
intent to subordinate voters based on their partisan 
preference will inevitably leave some invidious 
partisanship unaddressed. Cf. McCreary Cnty., 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, including that 
which is open and notorious on its face. 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).

17



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; Kagan, supra, at 509- 
11. Consistent with this premise, no party in the 
instant cases has requested, no three-judge court has 
proposed, and this Court should not adopt, any single 
quantitative metric as irrebuttable proof of an 
unconstitutional partisan gerrymander. This brief 
takes no position on the comparative merits or 
limitations of any particular quantitative measure in 
providing evidence of constitutional irregularity, or 
even whether such measures, however helpful in 
other cases, are necessary given the records at hand. 
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 to 
subordinate. But as the three-judge courts in these 
cases 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

18



traditional redistricting principles.2 See, e.g., Rucho 
J.S. App. 215-22; Benisek J.S. App. 41a-43a.

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 driven by 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

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 Cnty., 545 
U.S. at 864 (refusing to credit a hypothetically permissible 
purpose that is merely a sham). Particularly in the arena of 
invidious discrimination, jurisdictions should not be permitted to 
rescue actual manifestations of unlawful intent to subordinate 
with hypothetical interests invented for litigation purposes.

19



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. u. Holder, 570 
U.S. 529, 557 (2013). It prohibits any “voting 
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 
VRA’s 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

20



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 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, the voting and 
electoral patterns in a local community. 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. 
Town of Hempstead, 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 with the intent to entrench or subordinate 
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. The VRA is rigorously

21



focused on the distinct preferences of minority 
communities facing discrimination, not on generic 
partisan results. Cf., 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, ‘ [candidates favored 
by blacks can win, but only if the candidates are 
white.’”) (quoting Smith v. Clinton, 687 F.Supp. 1310, 
1318 (E.D. Ark. 1988) (three-judge court)).

This means that while the VRA requires 
attention to local voting patterns, it does not require 
districts drawn for voters because of their partisan 
affiliation. A fortiori, it in no way requires an 
invidious intent to subordinate voters based on their 
partisan affiliation. 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 recently, 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 good- 
faith 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 unconstitutionally invidious partisanship.

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

22



interests of minority voters may be served by efforts 
to keep that community of interest 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 
not inadvertently conflated with illegitimate 
partisanship.

C. A  Properly Structured Claim for Partisan 
Gerrymandering Will Help Avoid 
Detrimental Distortion in 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

23



Carolina); Rodgers v. Lodge, 458 U.S. 613 (1982) 
(finding vote dilution in violation of Fourteenth and 
Fifteenth Amendments with respect to county 
commission in Georgia); White v. Regester, 412 U.S. 
755, 765-70 (1973) (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 this 
Court has 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 v. Strickland, 556 U.S. 1, 25 
(2009) (plurality); see also Shelby Cnty., 570 U.S. at 
536 (“[Vjoting discrimination still exists; no one 
doubts that.”).

Racial discrimination, of course, is morally, 
historically, and legally distinct from partisan 
subordination. Partisan impulses have, however, 
repeatedly provided disturbing incentives for officials 
of both major parties to draw districts that 
disadvantage minority voters. The absence of a 
meaningful partisan gerrymandering doctrine has not 
only fostered this abuse, but also led to further 
detrimental impacts for voters and for the law. 
Jurisdictions in race-based redistricting cases have 
inappropriately and sometimes successfully claimed 
invidious partisan purpose as a defense. And

24



claimants with partisan motives may bring 
inappropriate race-based cases that distort the 
jurisprudence of racial harm. The distinct harms of 
partisan and racial discrimination in redistricting 
merit two distinct causes of action, for the benefit of 
the law and the courts, and voters of all kinds.

History shows that in the absence of a firm 
understanding of the illegality of invidious partisan 
gerrymandering, both major political parties— 
Democratic and Republican—have drawn electoral 
districts in pursuit of their excessive partisan 
interests in ways that have harmed minority voters.

Following the 1970 Census, for example, 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. 
Regester, 412 U.S. at 765-70.

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 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

25



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 
excessive 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 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

26



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, 253 F. Supp. 3d 864, 884 
(W.D. Tex. 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 945. Ultimately, the court found that the state’s 
treatment of minority voters in 2011 amounted to 
multiple violations of Section 2 of the VRA and the 
Constitution. Id. at 908, 938, 962.

And the North Carolina map now before the 
Court is the successor plan to a 2011 map that, in the 
words of its own author, sought to “create as many 
districts as possible” that Republicans would win and 
“to minimize the number of districts in which 
Democrats would have an opportunity to elect a 
Democratic candidate.” Rucho J.S. App. 180. As part 
of its means to this end, the legislature chose an

27



equally impermissible path: intentionally and
unjustifiably overpacking minority voters in two 
specific districts.3 Harris, 137 S. Ct. at 1469-78.

In cases of this type, jurisdictions often seek to 
defend themselves by asserting that the complaints 
turn more substantially on partisanship than they do 
on race. See Comm, for a Fair & Balanced Map v. III. 
State Bd. of Elections, 835 F. Supp. 2d 563, 567, 586 
(N.D. 111. 2011) (three-judge court); Harris, 137 S. Ct. 
at 1473, 1476. The absence of meaningful partisan 
gerrymandering doctrine allows such arguments to 
flourish.

In statutory vote dilution cases, such a defense 
has no purchase. See, e.g., Gingles, 478 U.S. at 63-67, 
74 (plurality); id. at 100 (O’Connor, J., concurring in 
the judgment); Goosby v. Town of Hempstead, 180 
F.3d 476, 492-94, 495-96 (2d Cir. 1999) (rejecting the 
argument that partisan explanations for otherwise 
proven racial vote dilution can defeat a VRA claim).

3 It is not inconsistent to understand that North Carolina 
pursued invidious partisan advantage and that it did so through 
the predominant and unjustified use of race. The particular 
reason why specific individuals were moved within or without 
certain identified districts was predominantly based on their 
race and without adequate legitimate justification. Harris, 137 
S. Ct. at 1469-78. And the underlying reason to move these 
individuals based on their race was the drive to entrench 
Republicans and subordinate Democrats. Rucho J.S. App. 180. 
The legislature employed an impermissible means to obtain an 
unconstitutional objective. See Harris, 137 S. Ct. at 1473 n.7; 
infra at 28-29.

28



Similarly, in constitutional claims, where the 
evidence establishes that voters have been targeted 
based on their race or ethnicity, as a proxy for party, 
such a defense is irrelevant. Courts have repeatedly 
affirmed that the unjustified targeting of minority 
voters for injury based on their race 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 “[ijntentions 
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

29



point. . .  in distinguishing discrimination based on an 
ultimate objective of keeping certain incumbent 
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., Abbott v. 
Perez, 138 S. Ct. 2305 (2018); 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 Cnty., 365 
F.3d 341, 352 (4th Cir. 2004) (Wilkinson, J.) (noting 
evidence that in South Carolina, party affiliation and 
race were “inextricably intertwined”); Perez, 253 F. 
Supp. 3d at 945 (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

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. See, e.g., McMillan v. 
Escambia Cnty., Fla., 748 F.2d 1037, 1044 (11th Cir. 1984).

30



intent—and where the evidence is insufficient to 
distinguish the two, an egregious gerrymander may 
inflict its damage without evidence sufficient to prove 
that voters were specifically targeted because of their 
race or ethnicity. See, e.g., Perez, 253 F. Supp. 3d at 
969-72. Confessing to one misdeed may supply a 
narrow defense to another, but it should not yield 
blanket exculpation. Where the intent to entrench 
favored partisans and subordinate opposing voters 
based on their partisanship works its own material 
harm, doctrines designed to combat racial injustice 
should not provide the exclusive source of relief. In 
these 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 rights of all voters are fully protected. 
See, e.g., Bruce E. Cain & Emily R. Zhang, Blurred 
Lines: Conjoined Polarization and Voting Rights, 77 
O hio  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”).

Finally, in the absence of a legal standard for 
claims of partisan gerrymandering, some partisan 
actors—both Democrats and Republicans—have also 
attempted to bring unwarranted race-based claims to 
address partisan excesses. See, e.g., Samuel 
Issacharoff, Gerrymandering and Political Cartels, 
116 H a k v . L. R e v . 593, 630-31 (2002) (“One of the 
perverse consequences of the absence of any real 
constitutional vigilance over partisan

31



gerrymandering is that litigants must squeeze all 
claims of improper manipulation of redistricting into 
the . . . category of race.”).

As demonstrated above, some circumstances 
raise both partisan and racial harm. But some do not. 
Litigation that stems from partisan and not racial 
discrimination but is brought under race-based causes 
of action raises the risk that courts would tailor 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 legal, moral, 
and historical character, and should be neither 
confused nor conflated. The notion that partisan 
claims may occasionally be merely masquerading as 
race-based causes of action may warp the law and 
generate skepticism around true race-based harms.

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 recognition 
of a distinct litigation framework including a properly

32



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 judgments of the 
three-judge courts should be affirmed.

March 8, 2019

Respectfully Submitted,

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 
(212) 965-2200 
laden@naacpldf.org

Jennifer A. Holmes 
NAACP Legal Defense 

& Educational Fund , Inc . 
700 14th Street N.W. Ste. 600, 
Washington, DC 20005

Justin Levitt 
Counsel of Record 

Loyola Law  School*
919 Albany St.
Los Angeles, California 90015 
(213) 736-7417 
justin.levitt@lls.edu

Laura W. Brill 
Kendall Brill & Kelly LLP 
10100 Santa Monica Blvd., 

Suite 1725
Los Angeles, California 90067 
lbrill@kbkfirm .com

* Institutional affiliation for 
purpose of identification only

Counsel for Amici Curiae

33

mailto:laden@naacpldf.org
mailto:justin.levitt@lls.edu


APPENDIX

List o f Amici Curiae

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 Cnty. u. 
Holder, 570 U.S. 529 (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 u. Ashcroft, 539 U.S. 461 (2003); 
Easley u. Cromartie, 532 U.S. 234 (2001); 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);

la



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).

Latino Justice PRLDEF (“LJP”) champions an 
equitable society by using the power of the law 
together with advocacy and education. Since its 
founding as the Puerto Rican Legal Defense and 
Education Fund, LJP has advocated for and defended 
the constitutional rights and the equal protection of 
all Latinos under the law. LJP has engaged in and 
supported law reform civil rights litigation across the 
country combatting discriminatory policies in 
numerous areas and 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., 
Arcia v. Florida Sec'y of State, 772 F.3d 1335 (11th 
Cir. 2014); Favors v. Cuomo (Favors I), 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).

2a



Asian Americans Advancing Justice 
(“Advancing Justice”) is a national affiliation of five 
independent nonprofit organizations that actively 
works to advocate for the civil and human rights of 
Asian Americans and other underserved communities 
to promote a fair and equitable society for all. The 
Advancing Justice affiliation is comprised of our 
nation’s oldest Asian American legal advocacy center 
located in San Francisco (Advancing Justice -  Asian 
Law Caucus), our nation’s largest legal and civil 
rights organization for Asian Americans, Native 
Hawaiians, and Pacific Islanders located in Los 
Angeles (Advancing Justice — Los Angeles), the 
largest national Asian American policy advocacy 
organization located in Washington D.C. (Advancing 
Justice — AAJC), the leading Midwest Asian American 
advocacy organization (Advancing Justice -  Chicago), 
and the Atlanta-based Asian American advocacy 
organization that serves one of the largest and most 
rapidly growing Asian American communities in the 
South (Advancing Justice -  Atlanta). Collectively, 
Advancing Justice has a long-standing history of 
serving the interests of immigrant and language 
minority communities, and has operated a voting 
rights program for the last several decades that 
ensures equal access to the voting process, language 
assistance in voting for limited-English proficient 
voters, and fair redistricting that empowers Asian 
American communities through engagement and 
representation of Asian Americans during 
redistricting efforts at all levels.

The Asian American Legal Defense and 
Education Fund (“AALDEF”), founded in 1974, is a 
national organization that protects and promotes the

3a



civil rights of Asian Americans. By combining 
litigation, advocacy, education, and organizing, 
AALDEF works with Asian American communities 
across the country to secure human rights for all. 
AALDEF has monitored elections through annual 
multilingual exit poll surveys since 1988. 
Consequently, AALDEF has documented both the use 
of, and the continued need for, protection under the 
Voting Rights Act of 1965. AALDEF has litigated 
cases around the country under the language access 
provisions of the Voting Rights Act, and seeks to 
protect the voting rights of language minority, limited 
English proficient and Asian American voters. 
AALDEF has litigated cases that implicate the ability 
of Asian American communities of interest to elect 
candidates of their choice, including lawsuits 
involving equal protection and constitutional 
challenges to discriminatory redistricting plans. See, 
e.g., Favors v. Cuomo (Favors I), 881 F. Supp. 2d 356 
(E.D.N.Y. 2012); Diaz v. Silver, 978 F.Supp. 96 
(E.D.N.Y. 1997); OCA-Greater Houston v. Texas, No. 
16-51126 (5th Cir. 2017); Alliance of South Asian 
American Labor v. The Board of Elections in the City 
of New York, Civ. No. l:13-CV-03732 (E.D.N.Y. 2013); 
Chinatown Voter Education Alliance v. Ravitz, Civ. 
No. 06-0913 (S.D.N.Y. 2006).

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

4a



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, voting rights, 
and other civil rights principles affecting LGBT 
individuals and members of additional minority 
groups. 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 Gill v. Whitford, 138 S. Ct. 1916, 1933 
(2018) and Evenwel v. Abbott, 136 S. Ct. 1120 (2016).

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.

5a