Davis, John, Dr., undated - 3 of 14

    No. 16-1161

In  the

upretne Court of tfje ®rriteb il>tate£

B everly  R. G il l , et  a l .,
Appellants,

W illiam  W h itfo r d , et  a l .,
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 

J anai S. Nelson 
Samuel Spital 
Leah C. Aden 
NAACP Legal Defense  

& Educational Fund , In c .
40 Rector Street, 5th Floor 
New York, New York 10006

Counsel for /  
(Additional Counsel L

J ustin  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 
nici Curiae 
sted on Inside Cover)

September 1, 2017

mailto:justin.levitt@lls.edu


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

Suite 1725
Los Angeles, California 90067



1

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Page

.......ii

INTEREST OF THE A M IC I....................................... 1

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

ARGUMENT 9

A. A Cause o f A ction  for P artisan
G errym andering Is Ju stic iab le  And 
R equires P roof o f Invidious  
D iscrim ination  A gainst Voters Based on 
Their P o litica l Party A ffilia tion ...................9

B. A Properly Structured Claim for P artisan
G errym andering Is C onsistent w ith  the  
V oting R ights A ct............................................. 19

C. A Properly Structured Claim for Partisan
G errym andering W ould Help Protect 
A gainst the M anipulation o f M inority  
V o te rs .................   25

D. A Properly Structured Claim for Partisan  
G errym andering Will Help Avoid  
D etrim ental Spillover to Cases Brought 
U nder D octrines Involving R a c e ...............33

CONCLUSION ............................................................... 36



11

TABLE OF AUTHORITIES

Page(s)
Federal Cases

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 u. 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)...........................................................   i s

Bush v. Vera, 517 U.S. 952 (1996)............   2

Chisom v. Roemer, 501 U.S. 380 (1991)........................ 2

City o f 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



I l l

Comm, for a Fair & Balanced Map v. III. State Bd. of 
Elections, 835 F. Supp. 2d 563 (N.D. 111. 2011) 
(three-judge court)................................. ...........30, 35

Cooper u. Harris, 137 S. Ct. 1455 (2017).................. 30

Covington v. North Carolina, 316 F.R.D. 117 
(M.D.N.C. 2016) (three-judge court), a ff’d, 137 S. 
Ct. 2211 (2017)......................................................... 34

Cox v. Larios, 300 F. Supp. 2d 1320 (N.D. Ga. 2004) 
(three-judge court), a ff’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 o f Paterson, 136 S. Ct. 1412 (2016) 
............................................................................................. 10

Houston Lawyers’ A ss’n v. Attorney Gen. o f Texas, 501 
U.S. 419 (1991)................   .....2

Hulme v. Madison Cnty., 188 F. Supp. 2d 1041 (S.D
HI. 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), a ff’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. o f 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 o f Florida v. Detzner, 179 
So.3d 258 (Fla. 2015)...............................................14

League of Women Voters of Florida u. Detzner, 172 
So.3d 363 (Fla. 2015)............................................... 14

Lee v. Va. State Bd. o f Elections, 188 F. Supp. 3d 577 
(E.D. Va. 2016), a ff’d, 843 F.3d 592 (4th Cir. 2016) 
..................................    35

McCreary County, Ky. u. American Civil Liberties 
Union ofKy., 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. 16- 
3091 (7th Cir. Aug. 3, 2016)....................................31

Perez v. A bbo tt,__F. Supp. 3d __, 2017 WL 1787454
(W.D. Tex. May 2, 2017) (three-judge court) 
.................................................................. 27, 29, 32, 33



V I

Personnel A d m ’r of Mass. v. Feeney, 442 U.S. 256, 279 
(1979).........................................................................  15

Raleigh Wake Citizens A ss’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)

Sm ith  v. Allwright, 321 U.S. 649 (1944)...................... 2

Sm ith  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



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. o f Arlington Heights v. Metro. Hous. Dev’p  Corp., 
429 U.S. 252 (1977)................................................. 15

Voinovich u. 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. Ill, § 16(c)............................................. 14

Other Authorities

Appellees’ Br....................................................................  17

H eather Gerken et al. Amicus B r......................   17

vii



V l l l

Bernard Grofman & Ronald Keith Gaddie Amici Br. 
......................  ...17

Eric McGhee Amicus Br...................................................17

N at’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 & Pam ela 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/minority- 
representation-fair-m aps..........................................23

https://www.brennancenter.org/analysis/minority-representation-fair-maps
https://www.brennancenter.org/analysis/minority-representation-fair-maps


IX

Glenn M agpantay, 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 elim inating 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 u. 
Alaba?na, 135 S. Ct. 1257 (2015); Shelby County, Ala. 
u. 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 P u rsu an t to Suprem e Court Rule 37.3, counsel for amicus 
curiae certify th a t all p arties  have consented to the  filing of th is 
brief through le tte rs  from the  parties  on file w ith  the  Court. 
P u rsu an t to Suprem e Court Rule 37.6, counsel for amicus 
curiae certify th a t no counsel for a p arty  au thored  th is brief, in 
whole or in  part, and  th a t  no person or entity , o ther th an  
amicus curiae and  th e ir  counsel, m ade a m onetary contribution 
to its  p repara tion  or subm ission.



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’ A ss’n v. Attorney Gen. o f 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); Sm ith  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 pan- 
Latino 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 u. 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 tha t seeks to 
promote a fair and equitable society for all by 
working for civil and hum an 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 m aintained a strong 
interest in the voting rights of AANHPIs and strives 
to protect AANHPPs 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 
im m igrant and language minority communities, and 
is very concerned with issues of discrimination tha t 
might face them.

Asian Americans Advancing Justice - Asian 
Law Caucus, founded in 1972, is the nation’s first 
legal and civil rights organization serving low- 
income 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 
tha t ensures equal access to voter registration,



4

language assistance in voting for limited-English 
proficient voters, and fair redistricting th a t 
empowers Asian American communities. Based on 
th is commitment to protecting the voting rights of 
m arginalized communities, Advancing Justice - ALC 
has a strong in terest 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 harm s 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 F irst 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 o f 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 
Hum an Rights (“The Leadership Conference”) is a 
diverse coalition of more than  200 national 
organizations charged with promoting and protecting 
the civil and hum an rights of all persons in the 
United States. It is the nation’s largest and most 
diverse civil and hum an rights coalition. For more 
than  half a century, The Leadership Conference, 
based in Washington, D.C., has led the fight for civil 
and hum an rights by advocating for federal 
legislation and policy, securing passage of every 
major civil rights statu te  since the Civil Rights Act of 
1957. The Leadership Conference works to build an 
America tha t is inclusive and as good as its ideals. 
Towards tha t end, we have participated as an amicus 
party in cases of great public importance th a t 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 in terest 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 single- 
minded 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 a t the expense of minority voting rights.

Although there are sizable minority 
communities in parts of Wisconsin, the instan t case 
does not appear to rest on the m anipulation 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 m erits in this 
case may have wide-reaching implications for 
minority voters. Amici write in the hope th a t we 
may assist this Court in considering the 
ramifications of the doctrine and practice of partisan 
gerrym andering on minority voters beyond the 
in stan t case. In particular, amici explain how a 
properly structured partisan gerrymandering claim 
th a t requires a showing of in tent to subordinate 
voters because of their party affiliation assists in 
establishing an administrable standard tha t guards 
against invidious partisanship in the redistricting 
process without underm ining critical protections for 
minority voters.



7

When this Court as a whole last meaningfully 
considered the doctrine of partisan gerrymandering, 
all nine Justices recognized th a t “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. a t 312, 316-17 (Kennedy, 
J., concurring in the judgment); id. a t 318, 326 
(Stevens, J., dissenting); id. at 343-44 (Souter, J., 
and Ginsburg, J., dissenting); id. a t 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 th a t the Court 
is inclined to set a justiciable standard for 
adjudicating claims of partisan gerrymandering, it 
should ensure th a t such claims succeed only when 
plaintiffs prove invidious discrimination distinct 
from legitimate political choices. In this case, the 
three-judge court found tha t 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 m anipulating 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 tha t 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 dem onstrated 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 
gerrym andering may in some cases protect minority 
voters from improper m anipulation by elected 
officials, including where existing causes of action 
afford no other remedy in practice. In certain 
contexts, a properly structured partisan 
gerrym andering 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 th a t causes of action in which race and racial 
discrimination rem ain a central doctrinal concern 
are essential in addressing some of the deepest and 
most pernicious forms of discrimination. But we 
have also observed th a t actors whose primary 
concerns are partisan will occasionally attem pt to 
misuse race-based voting claims for their own ends, 
tw isting facts or law in the process. A properly 
structured cause of action for partisan 
gerrym andering 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 o f A ction for P artisan  
G errym andering Is Ju stic iab le  and  
R equires P roof o f Invidious  
D iscrim ination  A gainst Voters Based on 
Their P olitica l Party A ffiliation

This Court has previously determined claims 
of unconstitutional partisan gerrymandering to be 
justiciable. See, e.g., League of United Latin 
American Citizens (“LU LAC”) 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 tha t invidious intent was an essential 
element of such a standard, and found facts 
supporting proof of invidious intent. J.S. App. 109a- 
145a. 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 th a t 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 requirem ent 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 th a t 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. a t 751 (internal quotation m arks 
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 tha t do not offend the 
Constitution. But just last Term, this Court clarified 
tha t 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, 1417- 
18 (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 well- 
established F irst Amendment jurisprudence, the 
fundam ental principle th a t the government may not 
penalize citizens because of how they have exercised 
their F irst Amendment rights thus provides a well- 
understood structure for claims challenging the 
constitutionality of a S tate’s redistricting 
legislation—a discernable and manageable 
standard.”).

A gerrymandering cause of action tha t 
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 m atter of politics.” Vieth, 541 
U.S. a t 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 attem pt to 
subordinate voters on the basis of their political 
affiliation. Legislatures frequently make choices 
tha t 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 . R e v ., at *23-24 (forthcoming 2017), 
https://ssrn.com/abstract=3011062.

https://ssrn.com/abstract=3011062


12

Beyond the requirem ents of federal and state 
law, including those tha t 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 bu t 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, a t least in the sense of 
consistently protecting the relationship of 
incumbents to their constituents by m aintaining the 
cores of prior districts, ra ther than  selectively 
protecting incumbents from their constituents by- 
siphoning off opposing partisans. See LULAC, 548 
U.S. a t 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, 
a t *30-34.



13

A state actor’s invidious intent to subordinate 
voters on the basis of their partisan  affiliation is also 
distinct from the natu ra l 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 tha t population disparities tha t would 
not otherwise have raised prim a 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) (three- 
judge court). This Court summarily affirmed tha t 
decision. 542 U.S. 947 (2004). Similarly, the Fourth 
Circuit recently invalidated a county redistricting 
plan tha t would otherwise have passed muster, 
based on proof of the invidious partisan intent 
driving the districts’ population deviations. Raleigh 
Wake Citizens A ss’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. 111. 2001). Florida 
state courts have also examined redistricting plans



14

for invidious partisan  in tent under their state 
constitution. 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 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 three- 
judge court in the instan t 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 in tent 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 fam iliar tools to test 
for invidious partisan in tent in the redistricting 
process, seeking “an understanding of official 
objective em erging] 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 
circum stantial and direct evidence of in tent 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 im portant starting  point,” Personnel 
A d m ’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 tha t 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: 
statem ents 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 A ss’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, 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 th a t 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 in tent is 
not facile. Plaintiffs m ust 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. a t 279. Courts do not 
lightly make such determinations. Here, the court 
found th a t plaintiffs proved not merely th a t the 
legislature had partisan  information or was aware of 
a partisan impact, but tha t 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. a t 279.

In other words, the court, properly, did not 
allow plaintiffs to merely assume tha t the legislature 
operated with invidious intent. The standard is a 
demanding one, and necessarily means th a t a 
doctrinal requirem ent to prove invidious partisan 
in tent will inevitably leave some invidious 
partisanship unaddressed. Cf. McCreary County, 
545 U.S. a t 863 (recognizing tha t 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 th a t 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 th a t illegitimate 
peremptory challenges beyond the doctrine’s reach 
are inevitable).

Even though a doctrinal requirem ent to prove 
invidious partisan intent leaves some invidious 
partisanship unaddressed, the requirem ent is 
necessary to a manageable constitutional claim. See, 
e.g., Bandemer, 478 U.S. a t 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, tha t 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 legitim ate choices to a 
standard difficult to locate in the Constitution. And 
whatever the other elements of a manageable 
partisan gerrymandering claim, a requirem ent to 
show invidious partisan  in tent 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 
instan t 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; H eather Gerken et al. Amicus 
Br. 13-25. This brief takes no position on the 
comparative merits or lim itations 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 unrem arkable. Extreme 
“scores,” on any of several of these quantitative 
measures, may indicate partisan results sufficiently 
anomalous to constitute, inter alia, circum stantial 
evidence of invidious partisan intent. But as the 
three-judge court in this case emphasized, a 
jurisdiction should always have the opportunity to 
demonstrate tha t 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 th is  Court recently  em phasized in  a different red istric ting  
context, th is  inquiry  into legislative in ten t tu rn s  on “th e  actual 
considerations th a t provided the  essen tial basis for the  lines 
draw n, not post hoc justifications the legislature in  theory  could 
have used bu t in  reality  did not.” Bethune-Hill v. Va. State Bd. 
of Elections, 137 S. Ct. 788, 799 (2017); cf. McCreary County, 
545 U.S. a t 864 (refusing to credit a hypothetically perm issible 
purpose th a t is m erely a sham); J.S . App. 120a-122a (refusing 
to insu late  an  invidious p a rtisan  gerrym ander ju s t because the 
outcome also happens to be consistent w ith the  hypothetical 
application of trad itiona l red istric ting  principles).

Bethune-Hill concerned a claim based on the 
im perm issible use of race in redistricting, following Shaw v. 
Reno, 509 U.S. 630 (1993). W hile Shaw  claim s are “analytically  
d istinct” from claims prem ised on racially d iscrim inatory 
in ten t, LULAC, 548 U.S. a t 513-14 (Scalia, J., concurring in  the



19

B. A Properly Structured Claim for Partisan  
G errym andering Is C onsistent w ith  the  
V oting R ights Act

A properly structured partisan 
gerrymandering claim—one tha t requires proof of 
invidious in tent 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 gerrym ander from judicial 
scrutiny. Legislatures might produce maps tha t 
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 “perm anent, nationwide ban on racial 
discrimination in voting.” Shelby Cnty. v. Holder, 
133 S. Ct. 2612, 2631 (2013). It prohibits any “voting

judgm ent in p a r t and  dissenting in part), the  leg islature’s 
actual m otivation is even more pivotal in  a discrim ination case. 
W hether th a t  d iscrim ination involves im perm issible racial 
discrim ination or the invidious in ten t to subord inate  voters 
based on p a rtisan  affiliation, jurisdictions should not be 
perm itted  to w hitew ash actual m anifestations of d iscrim ination 
w ith hypothetical in te rests  invented for litigation purposes.



20

qualification or prerequisite to voting or standard, 
practice, or procedure” tha t “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 tha t 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 in tent by 
drawing district lines without the intent to harm  
voters based on their race or ethnicity. It is obvious 
th a t 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 th a t the surrounding 
electorate would otherwise usually prevent the 
minority community from electing a candidate of 
choice, jurisdictions have an obligation to ensure tha t 
districts, in the totality of circumstances, do not



21

create a discriminatory abridgement of electoral 
opportunity. Gingles, 478 U.S. a t 44-45, 50-51.

Compliance with Section 2 of the VRA will 
thus often require attention to, inter alia, local 
political preferences. Id. a t 45 (recognizing tha t 
“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. a t 79 (noting th a t 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 tha t is drawn favoring 
Democrats or favoring Republicans but th a t 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,
‘[candidates favored by blacks can win, but only if 
the candidates are white.’”) (quoting Sm ith u.



22

Clinton, 687 F.Supp. 1310, 1318 (E.D. Ark. 1988) 
(three-judge court)).

This means th a t 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 in tent to harm  voters based on their 
partisan  affiliation, much less an in tent 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 intim ating 
th a t 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 
in tent when the facts instead supported the 
conclusion th a t the disparities were driven by good- 
faith efforts to comply with the VRA. Harris, 136 S. 
Ct. a t 1309-10. That is, this Court recognized tha t 
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 in tent in a properly structured partisan 
gerrym andering claim. The National Republican 
Congressional Committee (“NRCC”), for example, 
argues as amicus th a t the “efficiency gap” 
quantitative measure creates a potential conflict 
between a partisan gerrymandering claim and 
Section 2 of the VRA. N at’l Republican Cong. Comm.



23

Amicus Br. 39-41. The NRCC posits th a t 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. a t 40. Historical practice 
suggests tha t the NRCC’s hypothetical concerns are 
unw arranted. See generally Michael Li & Laura 
Royden, Minority Representation: No Conflict with 
Fair Maps, https://www.brennancenter.org/analysis/ 
minority-representation-fair-maps (revealing th a t 
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 argum ent 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 tha t a 
jurisdiction may pursue. But no party has advocated 
for, and this Court should not adopt, any individual 
quantitative measure as the exclusive determ inant 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 
m ust have the opportunity to rebut th a t evidence 
with evidence th a t legitimate factors instead drove 
the redistricting lines. See supra at 12. (In the 
instan t 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 
attem pt to comply with the VRA somehow yielded

https://www.brennancenter.org/analysis/


24

districts establishing a high partisan  “score,” the fact 
th a t the score was merely the product of VRA 
compliance would show there was no invidious 
intent. And absent proof th a t invidious partisan 
intent actually motivated the districts in question, a 
claim m ust collapse. Any incidental political impact 
of VRA compliance in a particular plan is not 
threatened by a partisan  gerrymandering claim with 
invidious in tent a t 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 m andate to do so. Keeping 
th a t community intact raises no inference th a t 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 th a t a 
legislature intends to subordinate voters based on 
their partisan  affiliation. A robust requirem ent of 
invidious in tent ensures th a t legitimate compliance 
with traditional redistricting principles, including 
those th a t advance the interests of minority voters, is



25

not inadvertently conflated with illegitimate
partisanship.

C. A Properly Structured Claim for Partisan  
G errym andering W ould Help Protect 
A gainst the M anipulation o f M inority  
Voters

History shows th a t both major political 
parties—Democratic and Republican—have drawn 
electoral districts in pursuit of their partisan 
interests in ways tha t have harm ed 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 tha t were “unconstitutional in tha t 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 th a t 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 sta te’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), a ff’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 
m aintain the Democrats’ control of the sta te’s 
congressional delegation), and Republican officials in 
Mississippi “lobbied] the Justice Departm ent 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 
Departm ent of Justice interposed an objection under 
Section 5 of the VRA, and a three-judge district court 
then held th a t 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 th a t 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. a t 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. a t 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. a t 441. “This b[ore] the m ark of 
intentional discrimination th a t could give rise to an 
equal protection violation.” Id. a t 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 tha t Defendants 
engaged in extreme partisan 
gerrymandering in drawing the map, 
ignoring many if not most traditional 
redistricting principles in their attem pt 
to protect Republican incumbents, 
unseat [a Democratic incumbent], gain 
additional Republican seats, and 
otherwise gain partisan advantage. 
Defendants do not really dispute the 
fact tha t minority populations are 
divided or “cracked” in the plan . . . .

Id. a t *56. Ultimately, the court found tha t the 
sta te’s treatm ent of minority voters amounted to 
multiple violations of Section 2 of the VRA and the 
Constitution. Id. a t *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 th a t harm  minority voters. As the foregoing 
examples indicate, the racial harm s 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 th a t the 
reclistricting plan th a t is a t 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 tha t “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 tha t 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 . . . m ust show by a 
preponderance of the evidence th a t 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. a t 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. a t 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. a t 50-51 (describing the second and third 
preconditions for such a claim). Yet, in some 
circumstances, minority voters may face challenges

3 Absent racially  discrim inatory in ten t, Section 2 is not 
available to challenge such a d istrict; however, once liability 
has been established (i.e., plaintiffs show inter alia th a t a 
m ajority-m inority d istric t can be drawn), crossover d istricts can 
be an  appropriate m eans for s ta tes  and local jurisdictions to 
comply w ith  the  VRA and rem edy m inority vote dilution. Id. a t 
23 (noting th a t  Ҥ 2 allows S ta tes to choose th e ir own m ethod of 
complying w ith the  Voting Rights Act, and . . . th a t  m ay include 
draw ing crossover d istric ts”).



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 tha t “the num ber 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 th a t “[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 th a t 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. 111. 2011) (three-judge 
court); Cooper v. Harris, 137 S. Ct. 1455, 1473, 1476
(2017). Where the evidence establishes th a t 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 th a t the unjustified 
targeting of minority voters for injury is unlawful, 
whether they are targeted based on animus or as the 
means to achieve ultim ate partisan ends. See, e.g., 
Veasey v. Abbott, 830 F.3d 216, 241 n.30 (5th Cir. 
2016) (en banc) (Haynes, J.) (noting tha t 
“[ijntentions to achieve partisan gain and to racially 
discriminate are not m utually exclusive” and that 
accordingly, “acting to preserve legislative power in a 
partisan m anner can also be impermissibly 
discriminatory”), cert, denied, 137 S. Ct. 612 (2017); 
N.C. State Conference of NAACP u. McCrory, 831 
F.3d 204, 222 (4th Cir. 2016) (noting tha t
“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 
tha t incumbents may pursue intentional racial 
discrimination for political gain without displaying 
racial animus); One Wis. Institute, Inc. u. Thomsen, 
198 F. Supp. 3d 896, 924-25 (W.D. Wis. 2016) 
(holding th a t a voting m easure in Wisconsin “was 
motivated in part by the in tent 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 th a t case, th a t “there is little 
point . . .  in distinguishing discrimination based on 
an ultim ate objective of keeping certain incumbent



32

whites in office from discrimination borne of pure 
racial anim us”); cf. Harris, 137 S. Ct. a t 1473 n.7 
(noting, in the context of racial gerrym ander claims, 
tha t strict scrutiny applies “if legislators use race as 
their predom inant districting criterion with the end 
goal of advancing their partisan in terests”).

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. a t 1474 (noting evidence th a t 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 th a t in South 
Carolina, party  affiliation and race were
“inextricably intertw ined”); Perez, 2017 WL 1787454, 
at *56 (noting evidence tha t “race and political party 
affiliation are strongly correlated in Texas”).4 
Particularly in those circumstances, defendants may 
attem pt to shield themselves from claims of racial 
discrimination by claiming partisan in tent—and 
where the evidence is insufficient to distinguish the 
two, an egregious gerrymander may inflict its 
damage without evidence sufficient to prove th a t

4 Of course, even w here such correlation exists, it in no way 
renders race and  p a rty  legally equivalent or fungible. As 
described above, ta rg e tin g  m inority voters for in jury  has long 
been recognized as unlaw ful, period, w hether as a proxy for 
p arty  or not. And m inority voters continue to face unlaw ful 
discrim ination w ith in  closed party  prim aries, w here opposition 
on the  basis of p a rty  is not a t 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 th a t the fundam ental 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 th a t “racial, partisan, and 
adm inistrative motives have blurred” and th a t “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 P artisan
G errym andering Will Help Avoid
D etrim ental Spillover to Cases Brought
Under D octrines 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. a t 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. a t 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. a t 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), a ff’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 tha t citizens of all races have equal 
opportunity to share and participate in our 
democratic processes and traditions.” Bartlett, 556 
U.S. a t 25 (plurality opinion) (Kennedy, J.); see also 
Shelby County, 133 S. Ct. a t 2619 (“[Vjoting 
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
attem pted 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 tha t litigants m ust squeeze all 
claims of improper m anipulation 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), a ff’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 th a t stems from partisan concerns 
but is brought under race-based causes of action 
could exert pressure on courts to tw ist facts or 
doctrine (i.e., to try  to fit a square peg into a round 
hole) in ways tha t are potentially detrim ental 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 tha t “the cost of repackaging essentially 
partisan claims of excessive partisanship under one 
of these labels is something th a t 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 rem ain 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.

C O N C L U S IO N

For the foregoing reasons, the judgm ent of the 
three-judge court should be affirmed.

DATED: September 1, 2017

Respectfully Submitted,

Sherrilyn A. Ifill 
President & Director-Counsel 

J anai S. Nelson 
Samuel Spital 
Leah C. Aden 
NAACP Legal Defense 

& Educational Fund , Inc . 
40 Rector Street, 5th Floor 
New York, New York 10006

* Institutional affiliation for 
purpose of identification only

J ustin  Levitt 
Counsel o f 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

Counsel for Amici Curiae

mailto:justin.levitt@lls.edu