February 3, 2018, Presented by:Scott E. Pointner, Esq.

Rathje & Woodward, LLC.300 E. Roosevelt Road, Ste. 300

Wheaton, IllinoisSpointner@rathjewoodward.com (630)668-8500

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Gerrymandering

Where do you draw the line when YOU draw the line?

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The term gerrymander was inspired by an 1812 Massachusetts redistricting scheme that favored the party of Governor Elbridge Gerry. Portraitist Gilbert C. Stuart noted that one new election district had the shape of a salamander. Stuart drew an outline of the district, put a salamander's head on one end, and called the creature a Gerrymander.

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Illinois 4th Congressional District

Since January 3, 2013. 2003-2013Mayor Richard M. Daley and Governor Jim Edgar both wanted a Latino district, as Latinos were the fastest growing demographic group in the state at the time. In June 1991, Congressman Dennis Hastert, a suburban Republican, filed a federal lawsuit claiming that the existing congressional map was unconstitutional; the present congressional district boundaries emerged as a result of that lawsuit. Subsequent lawsuits challenging the redistricting as racially biased did not succeed in redrawing the district boundaries.

The purpose of the blatantly ridiculous shape is to create a majority-Latino district, joining the heavily Mexican area around Pilsen to Puerto Rican neighborhoods to the north. In order to do so without including the Loop and the west side, the two areas are connected by constituent-free areas such as a grassy strip which lies between two expressways.

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1973‐1982 1983‐1992 1993‐2002

2003‐2013 Since 2013

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U.S. District Court for the Western District of WisconsinWhitford v Gill, 15 CV 421

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February 3, 2018, Presented by:Scott E. Pointner, Esq.

Rathje & Woodward, LLC.300 E. Roosevelt Road, Ste. 300

Wheaton, IllinoisSpointner@rathjewoodward.com (630)668-8500

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No. 16-1161

In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS,

v.

WILLIAM WHITFORD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

BRIEF FOR APPELLANTS

Attorneys for Appellants

BRAD D. SCHIMEL Attorney General KEVIN M. LEROY Deputy Solicitor General State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

MISHA TSEYTLIN Solicitor General Counsel of Record RYAN J. WALSH Chief Deputy Solicitor General AMY C. MILLER Assistant Solicitor General BRIAN P. KEENAN Assistant Attorney General

QUESTIONS PRESENTED

1. Did the district court lack jurisdiction over this case because Plaintiffs have no standing to bring their statewide partisan-gerrymandering claims?

2. Did the district court lack jurisdiction over this case because statewide partisan-gerrymandering claims are nonjusticiable?

3. Did Plaintiffs fail to state a claim on which relief can be granted because they failed to articulate a “limited and precise” standard, Vieth v. Jubelirer, 541 U.S. 267, 306, 311 (2004) (Kennedy, J., concurring in the judgment)?

4. Are Defendants entitled to judgment because Act 43 complies with traditional redistricting princi-ples and is otherwise unobjectionable?

5. Are Defendants entitled, at the very minimum, to a remand so that they can present evidence under a fairly noticed legal standard?

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PARTIES TO THE PROCEEDING

The following were parties in the court below:

Plaintiffs:

William Whitford, Roger Anclam, Emily Bunting, Mary Lynn Donohue, Helen Harris, Wayne Jen-sen, Wendy Sue Johnson, Janet Mitchell, Allison Seaton, James Seaton, Jerome Wallace, and Don-ald Winter;

Defendants:

Beverly R. Gill, Julie M. Glancey, Ann S. Jacobs, Steve King, Jodi Jensen (substituted for her pre-decessor, Don Millis), and Mark L. Thomsen, in their official capacities.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

INTRODUCTION .......................................................1

OPINIONS BELOW ....................................................4

JURISDICTION ..........................................................5

CONSTITUTIONAL PROVISIONS INVOLVED .............................................................5

STATEMENT ..............................................................5

A. Political Gerrymandering In Early American History ........................................5

B. Wisconsin’s General Assembly, From Wisconsin’s Founding To Act 43 ............... 10

C. Procedural Background ............................ 17

SUMMARY OF ARGUMENT ................................... 22

ARGUMENT ............................................................. 26

I. The District Court Lacked Jurisdiction ........ 26

A. Plaintiffs Have No Standing To Bring Their Statewide Claims ............................ 27

iv

B. Plaintiffs’ Challenge To Act 43 As An Unlawful Statewide Gerrymander Presents A Nonjusticiable Controversy ... 34

II. Plaintiffs Failed To State A Claim Because They Did Not Offer A “Limited And Precise” Test For Adjudicating Their Allegations ....... 41

III. Act 43 Is Lawful Because It Complies With Traditional Redistricting Principles And Is Otherwise Unobjectionable ............................ 59

CONCLUSION .......................................................... 67

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TABLE OF AUTHORITIES

Cases

Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) .................................. passim

Baker v. Carr, 369 U.S. 186 (1962) ....................................... 12, 33

Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) ................ 14

Baumgart v. Wendelberger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471 (E.D. Wis. May 30, 2002) ........................ 13, 38, 65

Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017) ........................................... 62

Bush v. Vera, 517 U.S. 952 (1996) ............................................. 28

Chapman v. Meier, 420 U.S. 1 (1975) ........................................... 10, 40

Cooper v. Harris, 137 S. Ct. 1455 (2017) ................................. 1, 6, 29

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) ............................................. 60

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

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Gaffney v. Cummings, 412 U.S. 735 (1973) ................................. 51, 61, 63

Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301 (2016) ......................................... 60

Jimenez v. Hidalgo Cty. Water Improvement Dist. No. 2, 424 U.S. 950 (1976) ............................................. 53

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

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...................................... passim

Marston v. Lewis, 410 U.S. 679 (1973) ............................................. 31

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) ........................................... 27, 60

Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) ......................................... 57

Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) ........................................... 62

Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis. 1992) .................... 13

Republican Party of Wis. v. Elections Bd., 585 F. Supp. 603 (E.D. Wis. 1984) ..................... 12

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Reynolds v. Sims, 377 U.S. 533 (1964) ............................................. 47

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) ............................................. 27

Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) ..................... 34

Shaw v. Reno, 509 U.S. 630 (1993) ....................................... 28, 61

Steel Co. v. Citizens for Better Env’t, 523 U.S. 83 (1998) ............................................... 33

United States v. Hays, 515 U.S. 737 (1995) ................................. 29, 30, 31

United States v. Jacobsen, 466 U.S. 109 (1984) ....................................... 27, 60

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

Wis. Elections Bd. v. Republican Party of Wis., 469 U.S. 1081 (1984) ........................................... 12

Wis. ex rel. Attorney Gen. v. Cunningham, 51 N.W. 724 (Wis. 1892) ..................................... 12

Wis. ex rel. Lamb v. Cunningham, 53 N.W. 35 (Wis. 1892) ....................................... 12

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Wis. ex rel. Reynolds v. Zimmerman, 128 N.W.2d 16 (Wis. 1964) ................................. 12

Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630 (E.D. Wis. 1982) ..................... 12

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) ..................................... 34

Constitutions

U.S. Const. amend. I .................................................. 5

U.S. Const. amend. XIV ............................................. 5

Wis. Const. art. IV, § 3 ............................................. 10

Wis. Const. art. IV, § 4 ............................................. 10

Wis. Const. art. IV, § 5 ............................................. 10

Statutes and Rules

2011 Wisconsin Act 43 ...................................... passim

28 U.S.C. § 1253 ......................................................... 5

Act of April 20, 1836, ch. 54, 5 Stat. 10 ................... 11

Fed. R. Civ. P. 12 ...................................................... 41

Wis. Stat. § 4.001 ..................................................... 11

Other Authorities

37 Ohio Archaeological and Historical Publications (1928) ............................................... 9

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A Horrible Democratic Plot, Daily Milwaukee News, March 17, 1869 .................................. 10, 11

Brief of Amici Curiae Profs. Gary King et al., League of United Latin Am. Voters v. Perry, 548 U.S. 399 (2006) (Nos. 05-204, 05-254, 05-276, 05-439), 2006 WL 53994 ............43, 44, 47, 48

Daily Ohio St. J. (Columbus, August 12, 1842) .......................................................... 9, 61

Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301 (1991) ....................... 61

Democratic Gains in Indiana, The Age: Philadelphia (May 22, 1868) .............................. 10

Edward B. Foley, Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws, 84 U. Chi. L. Rev. 655 (2017) ................... 6, 38, 61

Edward B. Foley, The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. & Legal Theory Working Paper Series No. 401 (July 10, 2017) ........................................................ 34, 37

Elmer C. Griffith, The Rise And Development Of The Gerrymander (1907) ............................. passim

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Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (2013) ....................................................... 6, 7, 8, 10

Five Democratic Congressmen, New Harmony Reg., Oct. 24, 1868 .............................................. 10

How the Radical Majority in Congress is Manufactured, Rockingham Reg. and Va. Advertiser, Nov. 1, 1866 ..................................... 10

James T. Austin, The Life of Elbridge Gerry (1829) ..................................................................... 8

Jenni Salamon, Ohio’s 1842 Election: Absquatulators vs. Gerrymanderers, Ohio Memory, Sept. 6, 2013 ...................................... 8, 9

Jerrold G. Rusk, A Statistical History of the American Electorate (2001) .................................. 8

John Russell Bartlett, Dictionary of Americanisms 248 (4th ed. 1877) ......................... 5

Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239 (2013) ................................... 51

Library of Congress, Essex County; Worcester County ................................................................... 7

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Mass. Historical Soc’y, The Gerry-Mander. A new species of Monster which appeared in Essex South District in Jan. 1812 .................................. 7

Michael Keane, Redistricting in Wisconsin (April 1, 2016) .......................................................... 11, 12

Nat’l Conference of State Legislatures, Redistricting Law 2010, November 2009 ........... 38

Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering And The Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) ....................... 17, 48

Peter Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240 (B. Grofman ed., 1990) ................................. 39

The Gerry-Mander, or Essex South District Formed Into A Monster!, Salem Gazette, April 2, 1813 ................................................................... 6

William A. Craigie and James R. Hulbert, 2 A Dictionary of American English (1940) ......... 5

Wisconsin, Waukesha Plaindealer (Nov. 26, 1867) .................................................... 11

INTRODUCTION

A divided three-judge district court became the first court in decades to invalidate a redistricting plan on partisan-gerrymandering grounds. The plan that the court struck down—Act 43—complies with tradi-tional redistricting principles and does not meaning-fully differ from the immediately prior, court-drawn map in terms of election outcomes. As the dissent be-low explained, the only way that Wisconsin Republi-cans could have achieved Plaintiffs’ desired partisan results would have been to “engage in heroic levels of nonpartisan statesmanship,” purposefully abandon-ing their advantage under the court-drawn plan. J.S. App. 245a.

While Plaintiffs in their Motion to Affirm before this Court did not defend the district court’s core rea-soning, they continued to argue that Act 43 is unlaw-ful because the Legislature engaged in too much partisanship. But “[p]artisan gerrymandering dates back to the founding.” Cooper v. Harris, 137 S. Ct. 1455, 1488 (2017) (Alito, J., concurring in the judg-ment in part and dissenting in part). Although “some might find [this practice] distasteful, [this Court’s] prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymander-ing.” Id. (citation omitted). Plaintiffs seek to overturn this centuries-old status quo, thereby “commit[ting] federal and state courts to unprecedented interven-tion in the American political process.” Vieth v. Ju-belirer, 541 U.S. 267, 306 (2004) (Kennedy, J.,

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concurring in the judgment). Plaintiffs seek to impose this change without identifying any historically grounded “comprehensive and neutral principles,” id. at 306–08, and while simply repeating arguments that this Court has already rejected.

The massive “intervention” that Plaintiffs urge this Court to authorize is “unprecedented.” Id. at 306. Under the approach they advocated in their Motion to Affirm, whenever a politically minded body draws electoral boundaries—whether for House of Repre-sentatives seats, the state legislature, or a local water district—any displeased voter in the State (even one living in a district not altered by the new map) can file a lawsuit in federal court, seeking invalidation of the entire map. In that lawsuit, the plaintiff would need only rely upon one or more of any number of develop-ing “social science” metrics, ranging from the “effi-ciency gap” to “mean-median difference” calculations to “sensitivity testing” to as-yet unidentified theo-rems. See Mot. to Affirm 10, 12 n.4, 21 n.8. The dis-trict court would then compare the outputs of these cherry-picked metric(s) with the outputs of whatever metric(s) the defendants favored and then (somehow) decide, in the name of the Constitution, whether there has been “too much” partisanship. See League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 420 (2006) (plurality op.). This Court was not impressed with a virtually identical multi-metric ar-gument in LULAC, when that argument was pre-sented by certain law professors in an amicus brief. Id.

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Notably, under the metric that Plaintiffs favored below, one out of every three legislative maps over the last 45 years would have had too much partisan effect. And this actually understates the breadth of what Plaintiffs urge this Court to adopt, as other plaintiffs could attack the remaining maps simply by relying upon other academic formulas thought to “exploit re-cent conceptual and methodological advances in the social sciences.” Mot. to Affirm 21.

Plaintiffs’ approach is thus not “limited and pre-cise” under any reasonable understanding of that standard, meaning that Defendants are entitled to judgment. See Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). More generally, that Plaintiffs can offer nothing better than their social-science hodgepodge aptly shows that the “weighty ar-guments for holding cases like these to be nonjustici-able” have now “prevail[ed].” Id. at 309 (Kennedy, J., concurring in the judgment). It has been more than three decades since Davis v. Bandemer, 478 U.S. 109 (1986), and yet no party or court has identified any “comprehensive and neutral principles for drawing electoral boundaries,” let alone a limited and precise test to enforce those principles, see Vieth, 541 U.S. at 306–08 (Kennedy, J., concurring in the judgment).

Plaintiffs would also create an unthinkable imbal-ance in this Court’s standing doctrine, making allega-tions of partisan gerrymandering more legally powerful than claims even of racial gerrymandering. Plaintiffs based their standing on the assertion that a

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voter living in any district in a State can challenge a map on a statewide basis. That is contrary to this Court’s racial-gerrymandering caselaw, which holds that a voter can challenge only that voter’s own dis-trict and cannot attack a map “as an undifferentiated whole.” Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015) (citation omitted). The result of Plaintiffs’ rejection of that principle in the political context would be to favor partisanship-based claims over race-based claims.

This Court should reverse the district court and hold that Plaintiffs’ lawsuit must be dismissed.

OPINIONS BELOW

The opinion and order of the panel of the United States District Court for the Western District of Wis-consin, entered on November 21, 2016 (J.S. Appendix A), are reported at 218 F. Supp. 3d 837. The district court’s opinion and order permanently enjoining the use of Act 43, entered on January 27, 2017 (J.S. Ap-pendix B), are unreported, but are available at 2017 WL 383360. The district court’s judgment, entered on January 27, 2017 (J.S. Appendix C), amended judg-ment, entered on February 22, 2017 (J.S. Appendix D), and corrected amended judgment, entered on March 15, 2017 (J.S. Appendix E), are unreported.

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JURISDICTION

Defendants filed their notice of appeal on Febru-ary 24, 2017 (J.S. Appendix F), and their amended no-tice of appeal on March 20, 2017 (J.S. Appendix H). This Court has statutory jurisdiction to consider this appeal under 28 U.S.C. § 1253. However, as ex-plained below, the federal courts lack jurisdiction over Plaintiffs’ lawsuit. See infra Argument Part I.

CONSTITUTIONAL PROVISIONS INVOLVED

This appeal involves the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, repro-duced at J.S. App. 345a–47a.

STATEMENT

A. Political Gerrymandering In Early Ameri-can History

As historically understood, a partisan gerryman-der is a map drawn “without any apparent regard to [the] convenience or propriety” of the districts, John Russell Bartlett, Dictionary of Americanisms 248 (4th ed. 1877), creating “irregularly shaped election dis-trict[s]” for partisan advantage, William A. Craigie and James R. Hulbert, 2 A Dictionary of American English 1114–15 (1940) (citing 1816 source material); accord The Gerry-Mander, or Essex South District Formed Into A Monster!, Salem Gazette (April 2,

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1813) (first public use of “gerrymander”);1 see gener-ally Edward B. Foley, Due Process, Fair Play, and Ex-cessive Partisanship: A New Principle for Judicial Review of Election Laws, 84 U. Chi. L. Rev. 655, 710–21 (2017). This practice “dates back to the founding.” Cooper, 137 S. Ct. at 1488 (Alito, J., concurring in the judgment in part and dissenting in part); accord Elmer C. Griffith, The Rise And Development Of The Gerrymander 26 (1907); Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy 21–22 (2013).

In the 1789 redistricting of the New York Legisla-ture, for example, the Federalist Party “unnecessarily divided a county by lopping off [ ] towns” into different districts to “secur[e] to their party the control of the new government [ ] provided for” in the federal Con-stitution. Griffith, supra, at 42–43. The Legislature also engaged in similar tactics in 1801, 1802, 1804, 1808 (with some districts that year not even con-nected), and again in 1812. Id. at 56–61, 77–79.

In 1812, Massachusetts Democratic-Republicans completed the “notoriously outrageous political dis-tricting” from which gerrymandering received its name. Vieth, 541 U.S. at 274–75 (plurality op.). This plan created districts of “fantastic shapes,” “sepa-rat[ing]” some towns and “isolat[ing]” others from

1 Available at https://digital.library.cornell.edu/catalog/

ss:3293783.

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“their proper counties” to boost Democratic-Republi-can political fortunes. Griffith, supra, at 16–17; Engstrom, supra, at 39. The “most distorted contour” was “[t]he outer district of Essex county.” Griffith, su-pra, at 17. Someone “proposed the term salamander” for the figure, which was then combined with the last name of Massachusetts Governor Elbridge Gerry, who “had allowed the [redistricting] bill to become a law,” to create the portmanteau “gerrymander.” Grif-fith, supra, 17.2

2 Images available at: Library of Congress, Essex County;

Worcester County, https://www.loc.gov/item/95683218; Mass. Historical Soc’y, The Gerry-Mander. A new species of Monster which appeared in Essex South District in Jan. 1812, http://www.masshist.org/database/1765.

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After the enactment of this map, the “Federalists [still] won 80 percent of the House seats in the 1812 election and recaptured control of the state legisla-ture.” Engstrom, supra, at 39; Jerrold G. Rusk, A Sta-tistical History of the American Electorate 235 (2001). After Governor Gerry himself lost, James T. Austin, The Life of Elbridge Gerry 377–78 (1829), “the new Federalist majority [then] set about remapping [Mas-sachusetts’s] congressional districts to further en-hance the prospects of Federalist congressional candidates in the 1814 election.” Engstrom, supra, at 39.

In 1842, Ohio Democrats introduced a gerryman-dered redistricting plan in a special legislative ses-sion. Griffith, supra, at 118; Jenni Salamon, Ohio’s 1842 Election: Absquatulators vs. Gerrymanderers, Ohio Memory, Sept. 6, 2013.3 The plan “grouped counties along the Ohio river in the coal region in a partisan manner,” which became known to the public

3 Available at http://www.ohiohistoryhost.org/ohiomemory/

archives/1333.

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through a local paper publishing cartoons in the spirit of the “original” gerrymander, Griffith, supra, at 118:4

Whig representatives absconded to defeat a quorum and published a defense of their actions in their party newspaper, along with a critique of the gerrymander: “It needs only a glance at the map to see how far con-tiguity of territory has been regarded in the formation of this bill. It has not only not been regarded; it has been most grossly disregarded.” Daily Ohio St. J. (Co-lumbus, August 12, 1842);5 Salamon, supra. While they prevented enactment of the plan, the Whigs lost at the polls. Salamon, supra. Ohio “has since been very frequently and effectively gerrymandered.” Grif-fith, supra, at 118.

4 Image available at: 37 Ohio Archaeological and Historical

Publications 528 (1928) (reproduction of a newspaper), https://archive.org/stream/ohioarchologic37ohio#page/n547/ mode/2up.

5 Available at http://www.ohiomemory.org/cdm/fullbrows er/collection/p16007coll22/id/17513/rv/compoundob-ject/cpd/17516.

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In 1852, the Democratic Party of Indiana “carved the state into a remarkable 10 (out of 11) Democratic districts despite only garnering 53 [or 54] percent of the statewide vote.” Engstrom, supra, at 9, 105. The following election, however, Democrats’ vote share dropped to 46%, resulting in a win of only two districts due to the thin margins built into the gerrymandered map. See id. at 120–21.

Similar practices continued in the post–Civil War era. See generally Engstrom, supra, at 9, 89. Penn-sylvania Republicans gerrymandered in 1866. How the Radical Majority in Congress is Manufactured, Rockingham Reg. & Va. Advertiser, Nov. 1, 1866. In-diana Radical Republicans engaged in an “unblushing gerrymander” in 1868. Five Democratic Congress-men, New Harmony Reg., Oct. 24, 1868; Democratic Gains in Indiana, The Age: Philadelphia (May 22, 1868). And prior to the 1870 elections, Ohio Republi-cans engaged in “a scheme to gerrymander the state.” A Horrible Democratic Plot, Daily Milwaukee News, March 17, 1869.

B. Wisconsin’s General Assembly, From Wis-consin’s Founding To Act 43

1. Wisconsin assigns to the Legislature the re-sponsibility for creating the State’s voting districts, subject to certain controlling principles. Wis. Const. art. IV, §§ 3–5; accord Chapman v. Meier, 420 U.S. 1, 27 (1975) (“reapportionment is primarily the duty and responsibility of the State through its legislature or

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other body, rather than of a federal court”). The Act creating the Wisconsin Territory provided for the elec-tion to both houses of the territorial legislature from multi-member districts. See Act of April 20, 1836, ch. 54, 5 Stat. 10, § 4. The Wisconsin Constitution jetti-soned the multi-member regime, requiring single-dis-trict elections. Wis. Const. art. IV, § 4. Each district must “be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be as com-pact in form as practicable.” Id. The districts of the upper house, the State Senate (not at issue here), must be “composed of 3 assembly districts,” Wis. Stat. § 4.001, and “no assembly district shall be divided in the formation of a senate district,” Wis. Const. art. IV, § 5. Assembly districts must also be equal in popula-tion. See Wis. Const. art. IV, § 3.

The Wisconsin Legislature engaged in partisan gerrymandering early in the State’s history. See A Horrible Democratic Plot, supra; Wisconsin, Waukesha Plaindealer (Nov. 26, 1867). In 1868, the “[R]epublican legislature” “gerrymandered” the con-gressional districts to ensure that 5 of 6 Wisconsin House of Representative members were Republi-cans. Id. When Democrats gained control of the As-sembly, they employed similar measures. In the early 1890s, after Wisconsinites elected a Democratic Gov-ernor and Democratic majorities in the Assembly and Senate, Democrats used their newly won power to fracture 15 Assembly districts and split 20 counties for partisan gain. Michael Keane, Redistricting in Wisconsin 7 (April 1, 2016). The Wisconsin Supreme

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Court invalidated the plans on state-law grounds. See generally Wis. ex rel. Attorney Gen. v. Cunningham, 51 N.W. 724 (Wis. 1892); Wis. ex rel. Lamb v. Cunningham, 53 N.W. 35 (Wis. 1892). The Legislature then rushed a redistricting plan into ef-fect 12 days before the election, under which Republi-cans soon retook the Legislature. Keane, supra, at 7.

From the 1960s through the 1990s, Wisconsin’s political branches often failed to agree on districting maps, thereby forcing federal courts to draw Assem-bly maps. Following this Court’s decision in Baker v. Carr, 369 U.S. 186 (1962), the Wisconsin Supreme Court drew the State’s legislative districts after the Legislature and Governor were unable to agree on a plan. Wis. ex rel. Reynolds v. Zimmerman, 128 N.W.2d 16 (Wis. 1964). After the 1970 census, Wis-consin’s political branches reapportioned the Assem-bly districts. Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630, 631 (E.D. Wis. 1982). Following the 1980 census, a federal district court drafted its own redistricting plan after the Governor vetoed the Leg-islature’s proposed plan. Id. at 632, 638–39. When Democrats won the Governor’s office in the 1982 elec-tion, the Democratic Legislature and Governor passed new Assembly districts, which were in force through the end of the decade after temporarily being stayed by the courts. See Republican Party of Wis. v. Elec-tions Bd., 585 F. Supp. 603, 604 (E.D. Wis. 1984), va-cated sub nom. Wis. Elections Bd. v. Republican Party of Wis., 469 U.S. 1081 (1984); JA209–10. Federal courts again drew Wisconsin’s Assembly districts for

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the 1990s, after the Republican governor vetoed the Democratic Legislature’s plan. Prosser v. Elections Bd., 793 F. Supp. 859, 862, 871 (W.D. Wis. 1992).

Following the 2000 census, a federal court again drew Assembly districts due to split control of the two houses of the Legislature. See Baumgart v. Wendel-berger, Nos. 01-C-121, 02-C-366, 2002 WL 34127471, at *1 (E.D. Wis. May 30, 2002). The court drew its plan “in the most neutral way it could conceive—by taking the 1992 plan as a template and adjusting it for population deviations.” Id. at *7. The two-party election results under the 2002 plan were as follows:

Election Year Republican Vote Share

Republican Seats

2002 50.50% 58 2004 50.00% 60 2006 45.25% 52 2008 46.00% 46 2010 53.50% 60

See JA219–20, 223–24.

2. The Legislature drew the map at issue here—2011 Wisconsin Act 43 (“Act 43”)—after Republicans won control of the Legislature and Governorship in the 2010 election. JA248.

The Legislature assigned primary drafting re-sponsibility to two legislative staffers and a former legislator. Dkt. 125 ¶¶ 17–20; Dkt. 119-8; Dkt. 147:46. Professor Ronald Keith Gaddie and retained

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lawyers assisted in this process. Dkt. 125 ¶¶ 19–20; Dkt. 147:152–53. The staffers focused on creating various draft maps that complied with the Voting Rights Act (VRA), equal-population requirements, and traditional districting principles, while also tak-ing politics into account. Dkt. 147:152–62; Dkt. 148:83–86. The goal was to create proposed regional alternatives for the Legislative leadership to consider. Dkt. 147:162–65; Dkt. 148:94–98.

To comply with the VRA, the staffers paid special attention to Milwaukee’s Assembly districts. Dkt. 147:152–53; Dkt. 148:75–76. After Professor Gaddie and the lawyers had signed off on the Milwaukee dis-tricts, the staffers “locked these districts” and then worked on maps of other areas of the State. Dkt. 148:77–78.6

Having locked in the Milwaukee-area districts, the staffers then drew various draft maps that com-plied with equal-population requirements, traditional redistricting principles, and state laws. Dkt. 147:153–57; Dkt. 148:83–86. The staffers drafted maps that were compact and contiguous by drawing “reasonably configured” districts, sought to avoid pairing incumbents, and tried to minimize delayed voting, also called “disenfranchisement,” of voters

6 A district court later rejected most challenges to Act 43,

except for one under the VRA. See Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) (per curiam).

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shifted between Senate districts. Dkt. 148:83–86; Dkt. 147:155–59.

The staffers also considered the political implica-tions of their various draft maps, using a tool they called the “composite score.” This score is a snapshot of the partisan preferences of Assembly district vot-ers, derived from averaging statewide races from 2004 through 2010 (President, U.S. Senate, Governor, Attorney General, Treasurer, and Secretary of State). Dkt. 147:121–29. This score did not purport to pro-ject, with any degree of precision, future Assembly elections; as an average of statewide races, it took no account of incumbency, candidate strength, or other Assembly-district-specific factors.

After completing their VRA, population-equality, traditional-redistricting-principles, and political analyses for their draft maps, the staffers presented portions of their various draft maps, by region, to leg-islative leadership, who then selected the preferred approach for each region. Dkt. 147:162–65; Dkt. 148:94–99. The drafters combined these regions into a single map, and then legislative leadership and one of the staffers met with each Republican member of the Assembly to discuss their district. Dkt. 147:165–68; Dkt. 148:101–02. The Legislature then adopted the map, after some minor adjustments, as Act 43. See Dkt. 148:110–17. As discussed in more detail be-low, see infra pp. 56–58, the district court drew a sig-nificant negative inference from the fact that, under Dr. Gaddie’s swing analysis of Act 43, Democrats

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were projected to win a majority of seats only after they managed to win more than 53% of the statewide Assembly vote (a vote total that they had achieved in two of the three elections leading up to Act 43). See J.S. App. 149a–50a & n.257; JA223–24.

Act 43 is generally consistent with the 2002 court-drawn map in terms of compactness, municipal splits, and population equality. Act 43’s compactness scores are comparable to the 2002 court-drawn plan: Act 43 had a smallest-circle score of 0.39 and a perimeter-to-area score of 0.28, whereas the 2002 court-drawn plan had a smallest-circle score of 0.41 and a perimeter-to-area score of 0.29.7 JA214–15. Act 43 split 62 munic-ipalities, compared to 50 splits in the 2002 plan. JA215–16. Act 43 had better population equality than the 2002 court-drawn map, with a deviation of 0.76% under Act 43, compared to 1.59% under the 2002 plan. JA212–13. Further, Act 43 avoided in-cumbent pairings where possible, with 22 total legis-lators paired, split evenly between Republicans and Democrats. Dkt. 148:87.

7 The “perimeter-to-area score, which compares the relative

length of the perimeter of a district to its area, and the smallest circle score, which compares the ratio of space in the district to the space in the smallest circle that could encompass the dis-trict,” are the “two standard measures of compactness.” LULAC, 548 U.S. at 455 n.2 (2006) (Stevens, J., concurring in part, dis-senting in part).

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Two elections occurred under Act 43 before Plain-tiffs filed their lawsuit. In the 2012 elections, Repub-licans won 60 out of 99 seats in the Assembly with 48.6% of the statewide two-party vote. See JA219–20, 224. In the 2014 elections, the Republicans won 63 of 99 seats in the State Assembly with 52% of the statewide two-party vote. See JA219–20, 224.

C. Procedural Background

1. In July 2015, Plaintiffs filed a complaint in the Western District of Wisconsin, alleging that Act 43 vi-olated the First and Fourteenth Amendments. JA25–65. Plaintiffs are 12 individual voters from 11 of the State’s 99 Assembly districts. JA153–55. Their com-plaint rested upon “a new test,” the so-called “effi-ciency gap.” JA28–29 (emphasis omitted). This is a concept recently developed by a professor (co-counsel for Plaintiffs) and a research fellow in a law-review article. See Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering And The Effi-ciency Gap, 82 U. Chi. L. Rev. 831 (2015). The theory assumes all votes cast for a winning candidate above those needed for victory are “wasted” votes that show “packing,” while all votes cast for losing candidates are wasted votes that show “cracking.” JA28–29. Plaintiffs contended that a plan that exceeded a 7% gap was unlawful unless the State could justify this gap. JA58–60. The district court denied Defendants’ motion to dismiss this complaint, holding that “cur-rent law does not foreclose plaintiffs’ claims,” but did

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not set out the legal standard to which discovery and expert reports in the case should be tailored. JA102.

The district court thereafter rejected Defendants’ motion for summary judgment. In their motion, De-fendants had argued, among other things, that the ef-ficiency gap was not a lawful standard. Dkt. 46. In response, Plaintiffs focused on how the efficiency gap should form the basis of a legal test. Dkt. 68. Plain-tiffs, however, obliquely suggested that “the Court could require a different measure of partisan sym-metry, such as partisan bias, to be used instead of or in addition to the efficiency gap.” Dkt. 68:48. Nota-bly, Plaintiffs disclaimed reliance on “minority party entrenchment” as foreclosed by this Court’s prece-dent. Dkt. 68:56. In their reply, Defendants strenu-ously objected to Plaintiffs’ request that the district court “develop a standard not put forward by the plaintiffs to date” because Defendants would have no opportunity to contest that yet-to-be developed stand-ard. Dkt. 73:23. In denying Defendants’ summary judgment motion, the district court concluded that “there is a genuine dispute on the question whether a large efficiency gap is a strong indicator of a discrim-inatory effect,” but refused to explain whether Plain-tiffs’ proposed efficiency-gap test would govern. Dkt. 94:15.

2. The trial took place in May 2016, with the focus of the evidence and argument regarding Act 43’s al-legedly partisan effects being on the efficiency gap.

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Four fact witnesses testified first. William Whit-ford, the lead plaintiff, admitted that Act 43 had not affected his ability to elect a Democratic representa-tive, but complained that Act 43 harmed his “ability to engage in campaign activity to achieve a majority.” Dkt. 147:36–37. The two legislative staffers and Gad-die (via videotaped deposition) testified about creat-ing Act 43. Dkt. 147:40–203; Dkt. 148:5–133.

Plaintiffs offered two expert witnesses, Professors Kenneth Mayer and Simon Jackman, who focused their testimony largely on the efficiency gap. Dkt. 148:136–295; Dkt. 149:5–141, 143–291. Mayer calcu-lated an efficiency gap of 11.69% for Act 43 in 2012, but did not calculate a gap for 2014. See Pls. Ex. 2, at 45, 54, Dkt. 147:7–8, Dkt. 148:136–37. Mayer also testified about his Demonstration Plan, an alterna-tive plan specifically designed to produce a lesser effi-ciency gap. See Dkt. 148:143. Mayer briefly testified about his “uniform swing analysis,” Dkt. 149:92–93, discussed in more detail below, see infra p. 58. Pro-fessor Jackman, in turn, testified about his analysis of the efficiency gaps seen in 41 States’ legislative elections from 1972 to the present. See J.S. App. 48a, 163a; Dkt. 149:149–52. In Jackman’s analysis, 34% of plans had an efficiency gap over 7% in their first election and 16% had an initial efficiency gap over 10%. JA193. Jackman’s analysis showed a sharp turn in the efficiency gap in Republicans’ favor start-ing in the 1990s, including in Wisconsin. Dkt. 149:250–54; Pls. Ex. 34, at 45, Dkt. 147:7–8, Dkt. 149:148.

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Defendants offered Sean Trende and Professor Nicholas Goedert as expert witnesses, who also fo-cused largely on the efficiency gap. Dkt. 150:5–143, 144–252. Trende testified that the efficiency gap was flawed for numerous reasons, including because it fails to account for Wisconsin’s political geography fa-voring Republicans. See Dkt. 150:66–70, 74–86. Pro-fessor Goedert explained that the efficiency gap would improperly codify a hyper-proportional relationship between seats and votes. Dkt. 150:144, 169–70.

3. On November 21, 2016, a divided three-judge district court invalidated Act 43. J.S. App. 1a–315a. The majority adopted a three-part legal standard based upon a discriminatory intent, discriminatory effects, and justification inquiry, built around the con-cept of entrenchment. J.S. App. 3a–4a, 109a–10a. The court also held that Plaintiffs had standing to challenge Act 43 on a statewide basis. J.S. App. 219a–22a.

The majority ultimately held that Act 43 was un-lawful under its newly announced test. On discrimi-natory intent, the court concluded that “an intent to entrench a political party in power signals an exces-sive injection of politics into the redistricting process,” J.S. App. 117a (emphasis added). Given that Act 43 was drawn by a Republican legislature, this test was easily satisfied. J.S. App. 126a–45a. As to partisan effect, the Court held that Act 43 was unlawful be-cause “it secured for Republicans a lasting Assembly

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majority”; that is, the district court found impermis-sible effect based upon entrenchment. J.S. App. 145a. The district court reached this conclusion by looking primarily to “the swing analyses performed by Profes-sors Gaddie and Mayer.” J.S. App. 145a–46a. As to the efficiency gap, the district court rejected Plain-tiffs’ core request to make this the definitive effects test, but held that Act 43’s efficiency gaps “bolstered” the court’s partisan effect holding. J.S. App. 159a. Fi-nally, having found the first two elements of its test met, the court held that Act 43’s political results could not be “justified” based on its compliance with tradi-tional redistricting principles or by Wisconsin’s polit-ical geography. J.S. App. 177a–218a.

Judge Griesbach dissented, explaining that, among many other defects, the majority’s approach required Republicans “to engage in heroic levels of nonpartisan statesmanship,” drawing the new map to neutralize their advantage under the 2002 court-drawn plan. J.S. App. 245a–46a. The dissent further objected to invalidating Act 43 because, as all the par-ties and the court agreed, “Act 43 does not violate any of the redistricting principles that traditionally gov-ern the districting process.” J.S. App. 250a–51a.

4. On January 27, 2017, the district court enjoined Defendants from using Act 43 and ordered that a new plan be adopted by November 1, 2017. App. 323a. On June 19, 2017, this Court granted Defendants’ appli-cation for a stay, and agreed to hear the case on the merits, while postponing consideration of jurisdiction.

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SUMMARY OF ARGUMENT

I. As a majority of the Justices of this Court con-cluded in Vieth, federal courts lack jurisdiction to ad-judicate statewide political-gerrymandering claims. See 541 U.S. at 305–06 (plurality op.); id. at 327–28 (Stevens, J., dissenting). These Justices were correct on both standing and justiciability grounds.

A. Plaintiffs, individual voters in 11 of Wiscon-sin’s Assembly districts, lack standing to challenge Act 43 on a statewide basis because they could only possibly suffer concrete, particularized harm in their specific districts. Even in a racial-gerrymandering case, a plaintiff only has standing to challenge the plaintiff’s own district, not the entire map “as an un-differentiated whole.” Ala. Legislative Black Caucus, 135 S. Ct. at 1265–66. This rationale applies directly to political-gerrymandering claims. A Wisconsin voter like the lead plaintiff in this case only has a con-crete and particularized interest in the district where he lives and votes. He has no standing to challenge other Wisconsin Assembly districts or other House of Representatives districts (including districts in other States), on the theory that he wants more Democrats for his Assembly or House member to caucus with.

A contrary conclusion would lead to an unthinka-ble and perverse loophole in this Court’s standing doc-trine. Given that plaintiffs may not bring statewide racial-gerrymandering claims, see Ala. Legislative Black Caucus, 135 S. Ct. at 1265–66, permitting such

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claims in the political-gerrymandering context would favor politics-based claims over allegations that the legislature acted with improper racial motives.

B. Plaintiffs’ statewide claims also present a non-justiciable political question. In Vieth, a majority of this Court either definitively concluded that such claims were nonjusticiable, 541 U.S. at 305–06 (plu-rality op.), or could eventually prove to be so, id. at 309 (Kennedy, J., concurring in the judgment). The last three decades of fruitless litigation demonstrate that there are no judicially discernible standards in this area of law. The only theory that Plaintiffs pre-sented below—so-called partisan symmetry—is not a “comprehensive and neutral principle[ ]” of district-ing, derived from “the annals of parliamentary or leg-islative bodies.” Id. at 306–08 (Kennedy, J., concurring in the judgment). Partisan symmetry is simply a species of proportional representation, for which there is “no [constitutional] authority,” id. at 308, and which has no historical or even present-day support in districting practice.

II. Even if this Court concludes that the district court had jurisdiction to consider Plaintiffs’ claims, Plaintiffs have not stated a claim on which relief can be granted because they have not articulated a “lim-ited and precise” standard. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).

The theory that Plaintiffs proposed in their Mo-tion to Affirm is the opposite of limited and precise.

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That theory identifies partisan effect based upon a brew of “partisan asymmetry” and “partisan bias,” the efficiency gap, “mean-median difference” calculations, “sensitivity testing,” and more. Mot. to Affirm 10, 12 n.4, 21 & n.8. Plaintiffs borrowed this approach from an amicus brief filed by law professors before this Court in LULAC, even though a plurality of this Court explained that this approach failed to articulate a “reliable measure of fairness.” 548 U.S. at 419–20.

The test that Plaintiffs proposed before the dis-trict court, but have now abandoned on appeal, is no more defensible. Under that proposal, a map would have an impermissible partisan effect if it had an ef-ficiency gap of more than 7% in its first election. This boils down to yet another baseless request for propor-tional representation; indeed, hyperproportionalism, as the efficiency gap metric assumes that “for every percentage point increasing in vote, you’ll get a 2 per-centage point increase in seat share.” Dkt. 149:188. The efficiency gap also suffers from additional fatal flaws, including that it would find that one out of every three legislative maps drawn in the last 45 years has impermissible partisan effect (while, at the same time, systematically overlooking partisanship-driven plans drawn by Democrats).

The district court took a different tact, finding that Act 43 had an impermissible partisan effect be-cause it allegedly “secured for Republicans a lasting Assembly majority” throughout the decade. J.S. App. 145a. As Plaintiffs conceded below, see Dkt. 68:56,

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this approach is foreclosed by Vieth. Given Plaintiffs’ concession below, the entrenchment issue was not fairly litigated at trial. Accordingly, if this Court were to hold that entrenchment plays any part in a parti-san-gerrymandering test, Defendants respectfully submit that a remand to permit the parties to litigate this issue would be appropriate.

III. Plaintiffs’ lawsuit also fails because Act 43 complies with traditional redistricting principles and is otherwise unremarkable. A majority of Justices in Vieth who would even permit adjudication of parti-san-gerrymandering claims would require the plain-tiff to show as an element of the claim that the legislature did not comply with these neutral princi-ples. See 541 U.S. at 318 (Stevens, J., dissenting); id. at 347–48 (Souter, J., joined by Ginsburg, J., dissent-ing). Here, it was undisputed below that Act 43 com-plies with these principles, meaning that Plaintiffs’ lawsuit fails for this reason alone. At the very mini-mum, Act 43 is lawful because the Legislature consid-ered political implications as only one of many legitimate factors, including traditional redistricting principles, and because Act 43’s results are generally comparable to those that obtained under the immedi-ately prior court-drawn map.

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ARGUMENT

I. The District Court Lacked Jurisdiction

A majority of this Court in Vieth concluded that federal courts lack jurisdiction to adjudicate statewide political-gerrymandering claims. A four-Justice plurality determined that all political-gerry-mandering claims were nonjusticiable. 541 U.S. at 305–06 (plurality op.). Justice Stevens, in turn, con-cluded that the plaintiffs in the case had no standing to bring their statewide partisan-gerrymandering claims because they would not have standing to bring a statewide racial-gerrymandering claim. See id. at 327–28 (Stevens, J., dissenting). As the plurality cor-rectly explained, Justice Stevens “concur[red] in the judgment that [the Court] should not address plain-tiffs’ statewide political gerrymandering challenges.” Id. at 292 (plurality op.). Although Justice Stevens “reache[d] that result via standing analysis, while [the plurality] reach[ed] it through political-question analysis, [the] conclusions are the same: [ ] statewide claims are nonjusticiable.” Id. (plurality op.); see also id. at 353 (Souter, J., dissenting) (“I would limit con-sideration of a statewide claim to one built upon a number of district-specific ones.”).

Given that a majority of this Court has already concluded that federal courts have no jurisdiction to adjudicate statewide partisanship-based claims, and given that Plaintiffs here brought only statewide claims, a straightforward application of this Court’s

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precedent is sufficient to dispatch Plaintiffs’ lawsuit in whole. See United States v. Jacobsen, 466 U.S. 109, 115–18 & n.12 (1984) (controlling holding derived from a two-Justice plurality and four-Justice dissent); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 17 (1983) (similar). After all, “either the absence of standing or the presence of a political ques-tion suffices to prevent the power of the federal judi-ciary from being invoked.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974).

Even if this Court wishes to consider these issues anew, both Justice Stevens and the Vieth plurality were correct in their respective conclusions: a plaintiff lacks standing to bring a statewide partisan-gerry-mandering claim, and partisan-gerrymandering claims are nonjusticiable (at least when dealing with statewide claims like those in Bandemer, Vieth, and in the present case). Either conclusion requires dis-missal of Plaintiffs’ lawsuit for lack of jurisdiction.

A. Plaintiffs Have No Standing To Bring Their Statewide Claims

1. Federal courts have subject matter jurisdiction only over cases where plaintiffs have standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). For plaintiffs to have standing, each must show: (1) an “injury in fact—an invasion of a legally protected interest which is (a) concrete and particu-larized,” in that it “affect[s] the plaintiff in a personal and individual way” and “(b) actual or imminent”; (2)

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a “causal connection between the injury and the con-duct complained of”; and (3) a likelihood that “the in-jury will be redressed by a favorable decision” from the court. Id. at 560–61 & n.1 (citations omitted).

Under these controlling principles, plaintiffs in a political-gerrymandering case lack standing to bring a statewide challenge. They could only possibly have standing to challenge their own districts, based upon an allegation that their legislature’s treatment of that district’s lines caused them individualized harm. This follows directly from this Court’s racial-gerry-mandering caselaw, and would obtain even absent this controlling, on-point precedent.

a. In the racial-gerrymandering context, this Court has identified two kinds of cognizable, personal harms that plaintiffs could suffer: (1) “being person-ally . . . subjected to a racial classification,” and (2) “being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group” in whose favor the district was gerrymandered, rather than the district’s entire electorate. Ala. Legislative Black Caucus, 135 S. Ct. at 1265 (alterations omitted) (citing Bush v. Vera, 517 U.S. 952, 957 (1996) (principal opinion of O’Connor, J.); Shaw v. Reno, 509 U.S. 630, 648 (1993)). Because these harms “directly threaten [only] voter[s] who live[ ] in the district attacked,” plaintiffs could only have standing to challenge their own “specific” dis-tricts alone, not the plan “considered as an undiffer-entiated ‘whole.’” Id. That is, voters who live in other

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districts have not been “personally [ ] subjected to a[n] [impermissible] classification,” and thus generally lack standing. United States v. Hays, 515 U.S. 737, 745 (1995).

These controlling principles apply directly to the political-gerrymandering context, meaning that a po-litical-gerrymandering plaintiff could only possibly have standing to challenge “the boundaries of [the plaintiff’s] individual district[ ],” not the State redis-tricting plan “considered as an undifferentiated ‘whole,’” Ala. Legislative Black Caucus, 135 S. Ct. at 1265; accord Vieth, 541 U.S. at 327–28 (Stevens, J., dissenting). Only voters living in an allegedly parti-san-gerrymandered district could even arguably be “denied equal treatment because of the legislature’s reliance on” partisan “criteria.” Hays, 515 U.S. at 744–45. And only the “[v]oters in [such] districts may suffer [ ] special representational harms,” such as the “winner of an election in a [partisan]-gerrymandered district” regarding the “object of her fealty” as the “ar-chitect of the district.” Vieth, 541 U.S. at 328 n.18, 330 (Stevens, J., dissenting) (first brackets in origi-nal, citation omitted).

A contrary conclusion would create an intolerable loophole in this Court’s jurisprudence, perversely fa-voring politics-based claims over race-based claims. As this Court has explained, “racial identification is highly correlated with political affiliation” in certain parts of this country. Cooper, 137 S. Ct. at 1473 (cita-tion omitted). If this Court were now to hold that

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plaintiffs have standing to bring statewide partisan-ship claims, whereas they lack standing to bring statewide racial claims under controlling caselaw, see Hays, 515 U.S. at 745, the obvious solution for them would be to frame their lawsuits as partisanship cases.

b. Even without the benefit of this Court’s racial-gerrymandering caselaw, voters suffer no particular-ized injury to a cognizable legal interest from alleged partisan gerrymanders outside of their own district. Lujan, 504 U.S. at 560–61 & n.1. Under a single-member district system, electors vote for individual Assembly members to represent them, “not for a statewide slate of legislative candidates put forward by the parties,” who then represent all of the voters in the State. Bandemer, 478 U.S. at 159 (O’Connor, J., concurring in the judgment). Accordingly, individual voters, living in individual districts, suffer no concrete injury resulting from maps impacting districts in other parts of the State.

Notably, a voter stands in the same attenuated relationship to assembly members from other dis-tricts in a state legislature as that voter stands to Representatives from other House of Representatives districts (including from other States). While a Wis-consin Democrat might prefer that Democrats in Ohio elect a majority-Democrat House delegation (and may even donate to Ohio Democrat candidates to forward that cause), that Wisconsin Democrat voter certainly suffers no individualized, concrete harm from a pro-

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Republican gerrymander or some other voting meas-ure (such as a stringent residency requirement, see, e.g., Marston v. Lewis, 410 U.S. 679 (1973) (per cu-riam)) that leaves Ohio Democrats with fewer House members to send to Washington D.C. The same logic applies, to the same degree, if that Wisconsin Demo-crat wants more Democrats, from other districts, elected to the Assembly and believes that Act 43 frus-trated this desire.

2. Plaintiffs in this case are voters who reside in 11 of Wisconsin’s 99 assembly districts. JA153–55. They objected to Act 43 only “as an undifferentiated whole,” Ala. Legislative Black Caucus, 135 S. Ct. at 1265–66 (emphasis removed), and did not argue that any of their districts were unlawfully gerrymandered. Plaintiffs thus lack standing, as they never even sought to establish that Act 43 causes them injury “in a personal and individual way.” Lujan, 504 U.S. at 560 n.1; see Hays, 515 U.S. at 745.

The example of lead plaintiff William Whitford demonstrates how clearly Plaintiffs have failed to es-tablish their own standing. Whitford lives in a heav-ily Democratic, Madison-based Assembly district. Both before and after Act 43, Democrats ran unop-posed, or won by extremely large margins, in Whit-ford’s district. Dkt. 147:37; Defs. Ex. 538, at 28, Dkt. 147:27–28; Defs. Ex. 539, at 26–27, Dkt. 147:27–28. Act 43 is even further afield from Whitford’s district because the map-drawers presented their draft maps to legislative leaders by region. See supra p. 15. So

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even if Plaintiffs could plausibly allege that some dis-trict(s) in some other region of Wisconsin were sub-jected to an unlawful district-specific gerrymander, that alleged violation could not relate in any “concrete and particularized” or “causal” way to Whitford’s dis-trict. Lujan, 504 U.S. at 560. As Whitford testified, the injury that he believes that he suffered was a di-minishment of his “ability to engage in campaign ac-tivity to achieve a majority in the Assembly.” Dkt. 147:37. That is not a concrete, particularized injury; instead, it is a subjective preference that any person could assert, so long as that person is interested in the election of more Wisconsin Democrats.

3. The district court and Plaintiffs offered several reasons as to why they believe Plaintiffs have stand-ing. None of those arguments are convincing.

First, the district court held that because the Leg-islature utilizes a “caucus system,” which often passes legislation by the majority party only rather than through bipartisan coalitions, Act 43 “diminishes the value of the plaintiffs’ votes in a very significant way.” J.S. App. 220a. But Plaintiffs do not vote for a party in Assembly elections; they vote in single-member dis-trict elections. See supra pp. 11, 31. So even if one assumes that Act 43 would yield fewer Democrats in the Legislature as an aggregate whole, this does not “diminish[ ]” Plaintiffs’ votes any more than if some action by the Ohio legislature reduced the number of Democrats in the House for Wisconsin Democrat House members to caucus with.

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Second, the district court sought to analogize to Baker v. Carr, 369 U.S. 186 (1962). J.S. App. 221a–22a. But Baker held that plaintiffs who live in over-populated, and thus underrepresented, districts have standing to bring one-person, one-vote claims. See Baker, 369 U.S. at 207–08. Plaintiffs have not argued that they suffered any individual injury of the type alleged by plaintiffs who live in overpopulated dis-tricts. Unlike in Baker, each of Plaintiffs’ votes has the same weight as the votes of their fellow citizens. Plaintiffs have, instead, rested entirely on a statewide injury theory that finds no grounding in Baker.

Third, Plaintiffs point out that “not a single Jus-tice objected” to the allegedly “statewide [ ] nature” of the claim in LULAC. Mot. to Affirm 4, 27. But when standing is “assumed by the parties” and “assumed without discussion by the Court,” a merits decision has “no precedential effect” on the standing issue. Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 91 (1998). And there is good reason why LULAC did not discuss the statewide standing issue. At oral argu-ment, counsel for the LULAC plaintiffs explained that the claimed political gerrymander involved only the districts of “six Democratic Congressmen who had managed to be elected in Republican leaning dis-tricts.” Tr. of Oral Argument at 5, LULAC, 548 U.S 399 (No. 05-204); see also LULAC, 548 U.S. at 412–13. And, counsel explained, at least one plaintiff re-sided in each of these districts, so “there [was] stand-ing.” Tr. of Oral Argument at 35, LULAC, 548 U.S 399 (No. 05-204). The defendants did not dispute that

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those plaintiffs had district-specific standing, suffi-cient to bring their six-district-specific claim.

Finally, Plaintiffs invoked the ipse dixit that “par-tisan gerrymandering is inherently a statewide activ-ity” and thus they must have standing to challenge Act 43 on a statewide basis. Mot. to Affirm 4 (empha-sis added). But it is clearly possible for a plaintiff to bring a district-specific partisanship claim, as did one of the Vieth plaintiffs. See Vieth, 541 U.S. at 318–19 (Stevens, J., dissenting); accord Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (currently pending single-district partisan-gerrymandering claim); Ed-ward B. Foley, The Gerrymander and the Constitu-tion: Two Avenues of Analysis and the Quest for a Durable Precedent, Ohio St. U. Moritz C. L. Pub. L. & Legal Theory Working Paper Series No. 401, at 13–15 (July 10, 2017) (urging a district-specific political-ger-rymandering test).8

B. Plaintiffs’ Challenge To Act 43 As An Un-lawful Statewide Gerrymander Presents A Nonjusticiable Controversy

1. Federal courts lack jurisdiction to decide polit-ical questions. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). This Court has “set forth six independent tests for the existence of a political question.” Vieth, 541 U.S. at 277–78 (plurality op.).

8 Available at https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=2999738.

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Particularly relevant here is one of the most “impor-tan[t]” and “certai[n]” of those tests, id.: a claim is nonjusticiable if there is “a lack of judicially discover-able and manageable standards for resolving it.” Id. (citation omitted).

In Bandemer, Justice O’Connor, joined by Chief Justice Burger and then-Justice Rehnquist, con-cluded that “partisan gerrymandering claims of major political parties raise a nonjusticiable political ques-tion.” 478 U.S. at 144 (O’Connor, J., concurring in the judgment). Adjudicating such claims would propel courts “toward some form of rough proportional rep-resentation,” inconsistent “with our history, our tra-ditions, [and] our political institutions.” Id. at 145. Authorizing these claims is particularly inappropri-ate in a “statewide” context because “[n]one of the elections for the [ ] Legislature are statewide.” Id. at 153 (O’Connor, J., concurring in the judgment).

Revisiting these concerns in Vieth, in the wake of “[e]ighteen years of essentially pointless litigation,” five Justices concluded that political-gerrymandering claims either were nonjusticiable, or could prove non-justiciable after further experience. Writing for a four-Justice plurality, Justice Scalia concluded that partisan-gerrymandering claims are not justiciable, after discussing the standards offered in Bandemer, by the Vieth plaintiffs, and by the dissenting Justices, and finding each wanting. Id. at 281–301. Justice Kennedy, while not joining the Vieth plurality, agreed that none of the proposed standards was adequate,

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while adding two additional important considera-tions. Id. at 306 (Kennedy, J., concurring in the judg-ment). First, no party had presented “comprehensive and neutral principles for drawing electoral bounda-ries,” or “helpful discussions on the principles of fair districting discussed in the annals of parliamentary or legislative bodies.” Id. at 306–08. Second, given this “dearth of helpful historical guidance,” “interven-ing courts—even when proceeding with best inten-tions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Id. at 307, 309. Although Justice Ken-nedy allowed for the “possibility” of judicial involve-ment “if some limited and precise rationale were found,” id. at 306, he recognized that there were “weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run,” id. at 309.

2. Political-gerrymandering claims could only be justiciable if litigants successfully identify “compre-hensive and neutral principles for drawing electoral boundaries,” such as those derived from “the annals of parliamentary or legislative bodies.” 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment). It has been now 13 years since Vieth, and over three decades since Bandemer. Yet no litigant has identi-fied such principles and historical sources. This Court should thus hold that political-gerrymandering claims are nonjusticiable, at least for statewide claims like those in Bandemer, Vieth, and this case. That statewide claims like those at issue in this case are

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most clearly outside of courts’ jurisdiction is further reinforced by the standing discussion above, supra pp. 27–34, including because “[n]one of the elections for the [ ] Legislature are statewide,” Bandemer, 478 U.S. at 144 (O’Connor, J., concurring in the judgment).9

The lack of historically derived “comprehensive and neutral principles” for redistricting illustrates the futility of continued litigation on this question. As Plaintiffs conceded below, given that this Court has held that “proportional representation,” “predomi-nant or exclusive partisan intent,” “district noncom-pactness,” and “minority party entrenchment” each do not qualify as sufficiently neutral principles, the “only theory” that Plaintiffs can imagine still remain-ing is “partisan symmetry.” Dkt. 68:56 (emphasis in original). Partisan symmetry, Plaintiffs have ex-plained, is “the idea that a district plan should treat the major parties symmetrically with respect to the conversion of votes to seats.” JA28.

But partisan symmetry is simply not a “compre-hensive and neutral principle[ ] for drawing electoral boundaries.” Vieth, 541 U.S. at 306–07 (Kennedy, J.,

9 Given that this case involves only such statewide claims,

this Court need not decide here whether partisanship-based claims brought on an entirely different theory are justiciable. See, e.g., Edward B. Foley, supra, at 13–15, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999738 (proposing a district-specific test based upon comparing a dis-trict to the Elbridge Gerry gerrymander).

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concurring in the judgment), as the LULAC plurality correctly explained when an amicus brief suggested this principle, 548 U.S. at 419–20 (plurality op.); see also infra pp. 43, 47–48 (extended discussion of this amicus brief). While partisan symmetry is some so-cial scientists’ currently favored idea of redistricting fairness, it lacks any support in the “annals of parlia-mentary or legislative bodies,” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment), or even modern-day practice by legislatures or courts. “There is,” after all, “no basis in the historical record for say-ing that the Constitution embodies a standard of par-tisan symmetry.” Edward B. Foley, Due Process, Fair Play, And Excessive Partisanship: A New Principle For Judicial Review Of Election Laws, 84 U. Chi. L. Rev. 655, 727 (2017). Even today, no State uses par-tisan symmetry as a redistricting principle. See gen-erally Nat’l Conference of State Legislatures, Redistricting Law 2010, November 2009, at 172–217 (50-State survey).10 And where neutral courts must draw district lines, they do not generally seek to for-ward partisan symmetry. To the contrary, courts can proceed “by taking the [prior] plan as a template and adjusting it for population deviations,” Baumgart, 2002 WL 34127471, at *7, even where this “leave[s] . . . largely in place” a partisan asymmetry enacted by a prior legislature, LULAC, 548 U.S. at 412 (citation omitted).

10 Available at http://www.ncsl.org/Portals/1/Documents/Re

districting/Redistricting_2010.pdf.

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Partisan symmetry is also not a “comprehensive and neutral principle[ ],” Vieth, 541 U.S. at 306 (Ken-nedy, J., concurring in the judgment), for an addi-tional reason, one which has plagued every statewide test that has been proposed to this Court: it is inexo-rably based upon proportional-representation princi-ples. Partisan symmetry relies upon the premise that the ideal system is one in which voters’ statewide preferences are reflected in a proportionate statewide share of seats, by means of all major parties “con-ver[ting] votes to seats” with equal efficiency. JA28. But this proportionality assumption is inconsistent “with our history, our traditions, [and] our political institutions,” Bandemer, 478 U.S. at 145 (O’Connor, J., concurring in the judgment), and is supported by “no authority,” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). That every statewide test so far suggested boils down to a “proportional rep-resentation standard” convincingly highlights that it is very likely “impossible” to adopt a statewide test that does not rely upon this inapposite, ahistoric pre-cept. See Peter Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Polit-ical Gerrymandering and the Courts 240, 240 (B. Grofman ed., 1990).

Failing to declare such statewide partisanship claims nonjusticiable, when no test has emerged in over three decades, “risk[s]” courts’ “assuming politi-cal, not legal, responsibility for a process that often produces ill will and distrust,” Vieth, 541 U.S. at 307

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(Kennedy, J., concurring in the judgment), and is “pri-marily the duty and responsibility of the State,” Chapman, 420 U.S. at 27. That is what occurred be-low, as the district court invalidated Act 43 on a the-ory that no party had suggested, after subjecting Defendants to a time-consuming trial. See supra pp. 17–21.

Statewide political-gerrymandering claims are nonjusticiable regardless of whether plaintiffs style those claims as arising under the First or Fourteenth Amendments. In Vieth, Justice Kennedy observed that “[t]he First Amendment may be the more rele-vant constitutional provision in future cases [of] par-tisan gerrymandering.” 541 U.S. at 314 (Kennedy, J., concurring in the judgment). Plaintiffs brought their claims under both the First and Fourteenth Amend-ments, but neither Plaintiffs nor the district court dis-tinguished between the claims in litigating and adjudicating this case. See J.S. App. 55a, 109a–10a. The unanswered (and unanswerable) challenge under either Amendment remains the same on the issue of justiciability: identifying historically based, “compre-hensive and neutral principles for drawing electoral boundaries.” Vieth, 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment).

Finally, as discussed in detail immediately below, see infra pp. 41–59, that Plaintiffs failed to propose any limited and precise test for adjudicating statewide partisan-gerrymandering claims further supports the conclusion that such claims are nonjusticiable. See

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541 U.S. at 292–301 (plurality op.) (finding nonjusti-ciability in large part because the proposed tests proved inadequate). Indeed, that the district court adopted a recycled version of the Bandemer plural-ity’s test, while Plaintiffs have now turned to a test rejected by the LULAC plurality, see infra pp. 47–48, highlights that no judicially manageable test is avail-able.

II. Plaintiffs Failed To State A Claim Because They Did Not Offer A “Limited And Precise” Test For Adjudicating Their Allegations

Plaintiffs failed to state a claim on which relief can be granted because they did not articulate a “lim-ited and precise” legal standard. Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). That is, even if this Court concludes that there could poten-tially be historically based “comprehensive and neu-tral principles” that help mediate whether there has been “too much” partisanship for justiciability pur-poses, LULAC, 548 U.S. at 420 (plurality op.); but see supra pp. 34–41, Plaintiffs’ failure to propose a “lim-ited and precise” test for adjudicating their partisan-based allegations requires dismissal of their claims under “Fed. Rule Civ. Proc. 12(b)(6),” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).

A. This Court’s caselaw provides the framework for deciding whether Plaintiffs have met their burden of identifying a “limited and precise” standard.

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In Bandemer, this Court faced a statewide parti-san-gerrymandering claim under which “Democratic candidates received 51.9% of the votes,” but won only 43 out of 100 seats available. 478 U.S. at 113–15 (plu-rality op.). As relevant to the present case, the Bandemer plurality rejected the plaintiffs’ challenge under a three-part standard based upon discrimina-tory intent, discriminatory effect, and inadequate jus-tification. Regarding intent, “[a]s long as redistricting is done by a legislature, [partisan intent] should not be very difficult to prove.” Id. at 129. As for effect, “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or group of voters’ in-fluence on the political process as a whole.” Id. at 132. “[A] finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political pro-cess.” Id. at 133 (emphasis added). As to the third part of the test, “[i]f there were a discriminatory effect and a discriminatory intent,” a court’s job was to eval-uate the plan for “valid underpinnings.” Id. at 141.

Eighteen years later, in Vieth, this Court rejected the Bandemer plurality’s test, as well as every other test proposed in that case. Bandemer’s entrench-ment-based effects test led to “puzzlement and con-sternation,” while giving no “real guidance to lower courts.” Vieth, 541 U.S. at 282–83 (plurality op.) (ci-tation omitted); accord id. at 308 (Kennedy, J., con-curring in the judgment). As for the other proposed

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tests, the plurality and Justice Kennedy rejected each as “either unmanageable or inconsistent with prece-dent, or both.” Id. at 308 (Kennedy, J., concurring in the judgment). Most relevant for purposes of this case, the plurality and Justice Kennedy rejected Jus-tice Breyer’s test—somewhat similar to the Bandemer plurality’s—that a plan is impermissible if it involves “unjustified use of political factors to entrench a mi-nority in power,” id. at 360 (Breyer, J., dissenting) (emphasis altered); see id. at 299 (plurality op.); id. at 308 (Kennedy, J., concurring in the judgment). In all, the controlling principle from Vieth is the one that Justice Kennedy announced in his concurring opin-ion: a partisan-gerrymandering claim fails unless the plaintiff carries a burden that the plaintiffs in Vieth and Bandemer had failed to: articulate a “limited and precise” legal standard. Vieth, 541 U.S. at 306 (Ken-nedy, J., concurring in the judgment).

Two years after Vieth, a plurality of this Court in LULAC rejected a test for detecting impermissible partisan effect proposed by group of amici professors led by Professor Gary King. 548 U.S. at 420–21 (plu-rality op.). Professor King et al. based this proposed approach on the concept of “partisan symmetry,” which “compar[ed] how both parties would fare hypo-thetically if they each (in turn) had received a given percentage of the vote.” Br. of Amici Curiae Profs. Gary King et al., League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (Nos. 05-204, 05-254, 05-276, 05-439), 2006 WL 53994, at *5, *7. The profes-sors offered no single means of measuring partisan

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asymmetry, instead referring this Court to “a se-quence of closely related, and steadily improving, sta-tistical methods” in social-science texts. Id. at *9. And they took “no position on how this Court could best implement a [partisan-symmetry based] test,” id. at *12, arguing that “future” litigation would “flesh out the particulars” of their proposed standard, id. at *16. A plurality of this Court rejected the professors’ suggestion for failing to furnish a “reliable measure of fairness,” LULAC, 548 U.S. at 419–20 (plurality op.), explaining that, among its other faults, this proposal does not answer the key question of “how much parti-san dominance is too much,” id. at 420.11

B. Plaintiffs and the district court have proposed three different three-part tests, but none satisfies the “limited and precise” requirement.

Before discussing the proposed tests’ critical ef-fects prongs, it is important to understand that these tests’ other two prongs—partisan intent and lack of justification—add nothing to the Bandemer plural-ity’s inadequate test. The first element of the three proposed tests and the Bandemer plurality’s test is partisan intent. The district court’s intent element,

11 Several other Justices took no position on the professors’

proposed standard. See, e.g., LULAC, 548 U.S. at 483–84 (Souter, J., concurring in part, dissenting in part) (expressing no opinion on “the administrability” of this approach); id. at 491–92 (Breyer, J., concurring in part, dissenting in part) (relying on en-trenchment criterion, with no mention of symmetry test).

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for example, requires a demonstration of “an intent to entrench a political party in power,” J.S. App. 117a, which is not meaningfully different from the Bandemer plurality requiring an intent to discrimi-nate against “an identifiable political group,” 478 U.S. at 127, or intending the map to have “substantial po-litical consequences,” id. at 129. Similarly, the pro-posed tests and the Bandemer plurality’s test include matching “justification” prongs, which permit uphold-ing a map if its partisan effect can be sufficiently jus-tified. Compare J.S. App. 109a–10a, with 478 U.S. at 141.

It follows that if there is anything in the district court’s or Plaintiffs’ proposals capable of offering a “limited and precise” standard, it is not located in the Bandemer-plurality-derived “intent” and “justifica-tion” tests. Instead, the principle must be found—if at all—in the proposals’ effects tests. Those three ap-proaches to measuring partisan effect are:

1. Social Science Hodgepodge. In their Motion to Affirm, Plaintiffs abandoned their prior reliance on the efficiency gap as the definitive test for partisan effect, see infra pp. 48–49, and argued that this effect should be adjudicated based upon an unspecified com-bination of “partisan asymmetry” and “partisan bias” measures, see Mot. to Affirm 10, the efficiency gap, “mean-median difference” calculations, and “analyti-cal techniques like sensitivity testing,” all of which are said to “exploit recent conceptual and methodolog-ical advances in the social sciences.” Mot. to Affirm

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10–12 & n.4, 21 & n.8. Sorting out the “precise con-tours” of which of these (or other) social-science met-rics would apply, when, and how, would be left for “subsequent litigation” in the lower courts. Mot. to Affirm 22–23.

It would be difficult to conceive of a standard less “limited” and less “precise” than Plaintiffs’ social-sci-ence stew. Touting “recent conceptual and methodo-logical advances in the social sciences,” Plaintiffs would have this Court instruct district courts to eval-uate the effects of alleged partisan gerrymanders by applying an unbounded variety of metrics. Mot. to Af-firm 10–12 & n.4, 21 & n.8. As for which metric or metrics would govern any case, Plaintiffs provide no answer or even rough guidance. Instead, they urge this Court not “to endorse any particular measure of partisan asymmetry or any particular technique for demonstrating durability.” Mot. to Affirm 22 (empha-sis omitted). Better to leave it to lower courts to figure it out in “subsequent litigation”; presumably only af-ter having subscribed to Political Research Quarterly, American Political Science Review, and other essen-tial journals. Mot. to Affirm 22–23.

Whereas “Bandemer begot only confusion,” Vieth, 541 U.S. at 283 (plurality op.) (citation omitted), Plaintiffs’ social-science approach would sow chaos. Each legislatively drawn plan would be immediately challenged in federal court. A trial would follow, where each side would present dueling “social sci-ence” expert(s), and then the district court would need

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to pick a winner. There would be no way for any leg-islature to know, ex ante, what metric would guide the inevitable future trial. Notably, whereas Plaintiffs’ favored social-science metric below (efficiency gap) found an impermissible partisan effect in one of every three plans, see infra p. 52, Plaintiffs’ multi-metric ap-proach threatens even more plans, since the plaintiffs in each case could choose their own favored metric.

Plaintiffs’ reliance on Reynolds v. Sims, 377 U.S. 533 (1964), to deflect these administrability problems, Mot. to Affirm 23, is unpersuasive. In Reynolds, this Court identified the constitutional violation and standard—one person, one vote—and then sought to develop a way to enforce that constitutional mandate. See Reynolds, 377 U.S. at 565–68, 577–78; see also Vi-eth, 541 U.S. at 290 (plurality op.). Here, in contrast, Plaintiffs have not articulated any “comprehensive and neutral principles” necessary to identify the con-stitutional violation and standard, Vieth, 541 U.S. at 306, 308 (Kennedy, J., concurring in the judgment), and thus there is no constitutional principle for dis-trict courts to seek to develop in future cases. And if Plaintiffs’ Reynolds-based pitch sounds familiar, it is because the professors’ amicus brief in LULAC urged that same approach. See King Br., 2006 WL 53994, at *16.

The similarities between Plaintiffs’ Motion to Af-firm and Professor King et al.’s submission in LULAC are, in fact, quite striking. Like Plaintiffs here, the professors invited this Court to adopt a social-science-

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based analysis drawn from several developing met-rics. Compare King Br., 2006 WL 53994, at *9–*11, with Mot. to Affirm 5, 10, 12 n.4, 21. Like Plaintiffs here, Professor King et al. declined to explain “how this Court could best implement” that test. Compare King Br., 2006 WL 53994, at *12, with Mot. to Affirm 22–23. And like Plaintiffs here, the professors offered assurance that “lower courts and this Court will flesh out the particulars of the rule in the future,” citing Reynolds. Compare King Br., 2006 WL 53994, at *16, with Mot. to Affirm 22–23 (tracking this language). All this Court needs to do is to “set a general rule pro-hibiting partisan gerrymanders,” and then lower courts could “decide the specifics of the issue as facts develop.” See King Br., 2006 WL 53994, at *17; Mot. to Affirm 20–22. This Court found the professors’ ap-proach inadequate, LULAC, 548 U.S. at 419–20 (plu-rality op.), and Plaintiffs here have not cured that fatal defect.

2. Efficiency Gap. Plaintiffs took a different ap-proach before the district court, arguing that the ef-fects test should be based upon the so-called “efficiency gap.” See supra pp. 17–19. This concept, recently proposed in a law-review article by one of Plaintiffs’ attorneys, Stephanopoulos & McGhee, 82 U. Chi. L. Rev. 831, measures the major parties’ rela-tive percentage of “wasted” votes, defined as ballots cast “(1) for a losing candidate, or (2) for a winning candidate but in excess of what she needed to prevail.” Id. at 834. The formula takes the difference between the parties’ respective wasted votes in an election and

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divides it by the total number of votes cast. J.S. App 32a. If the gap is zero, the “two parties waste votes at an identical rate”; if the gap favors one party, that party “wasted fewer votes than its opponent, [and] was able to translate, with greater ease, its share of the total votes cast in the election into legislative seats.” J.S. App. 32a–33a. Plaintiffs contended below that if the gap for a given plan exceeds 7% in the first election, this establishes unconstitutional effect. J.S. App. 33a–34a. The district court did not adopt this approach, see J.S. App. 159a, 176a, and Plaintiffs no longer rely upon it, see Mot. to Affirm 10. And with good reason.

First, the efficiency gap is built upon the extra-constitutional assumption that proportionate repre-sentation is the baseline, see supra pp. 35–36, devia-tion from which is the touchstone of impermissible effect. The efficiency gap maintains as its core prem-ise that, insofar as a districting plan renders Demo-crats or Republicans unable to translate their statewide vote totals into a proportionate number of legislative seats, they are constitutionally harmed. So “[i]f Party A has a large statewide total of votes, say 60%, but has only received 51% of the seats, there is a large efficiency gap reflecting . . . [that] the num-ber of seats they won was disproportionally small compared to their statewide vote totals.” J.S. App. 270a (Griesbach, J., dissenting). In fact, the efficiency gap requires hyperproportionality. The gap theory as-sumes that “for every percentage point increasing in vote, you’ll get a 2 percentage point increase in seat

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share.” Dkt. 149:188. In other words, even “if a state successfully achieved proportional representation, the plan might fail an [efficiency gap] analysis be-cause it fails to give a hyperproportional share to the party winning the majority of the statewide vote.” J.S. App. 175a.

Second, the gap’s reductionist view of voting—re-garding ballots as economic transactions, valuable only when “efficiently” cast—distorts the role that votes play in our democracy. The premise of the gap’s theory is that votes are “wasted” if cast (1) “for a los-ing candidate,” or (2) “for a winning candidate but in excess of what he or she needed to prevail.” JA28–29. But a Republican who wins 50.1% of the vote is not interchangeable with a Republican elected at a com-fortable 75% margin. “It is exceptionally likely that legislators in swing districts will adopt more moder-ate, centrist positions than some of their colleagues, and they will of necessity be more responsive to the 49% of the electorate that did not vote for them.” J.S. App. 287a (Griesbach, J., dissenting).

Third, the efficiency gap’s zero-gap baseline is systematically biased against Republicans and in fa-vor of Democrats, at least under modern political con-ditions. This is largely because Democratic voters concentrate in big cities and “smaller industrial ag-glomerations such that they can expect to win fewer than 50% of the seats when they win 50% of the votes.” Jowei Chen & Jonathan Rodden, Uninten-

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tional Gerrymandering: Political Geography and Elec-toral Bias in Legislatures, 8 Q.J. Pol. Sci. 239, 239–40 (2013); Vieth, 541 U.S. at 290 (plurality op.) (recogniz-ing this phenomenon); id. at 359 (Breyer, J., dissent-ing) (same). In Wisconsin, “Republican-favoring efficiency gaps have been part of [the] political land-scape for more than three decades,” well before Re-publicans were drawing district lines, J.S. App. 309a (Griesbach, J., dissenting), including under court-drawn plans, JA222–24; Defs. Ex. 547, at ¶ 100, Dkt. 147:27–28. Wisconsin is hardly unusual in this re-spect. Professor Jackman, Plaintiffs’ expert, conceded that efficiency gaps have trended in Republicans’ fa-vor since the mid-1990s, even though only two of the 41 States in Jackman’s data set were Republican-con-trolled. Dkt. 149:252–67; Pls. Ex. 34, at 45, Dkt. 147:7–8. And because of its systemic anti-Republican bias, the efficiency gap metric is also incapable of catching what many generally understand as Demo-crat-enacted gerrymanders. See Defs. Ex. 547, at ¶¶ 117, 120, Dkt. 147:27–28; Dkt. 150:75–79.

Fourth, the efficiency-gap theory has numerous technical defects, which can only be briefly summa-rized here. Even maps that include “many competi-tive districts”—which can be a feature, not a bug, of a districting plan, see Gaffney v. Cummings, 412 U.S. 735, 752–53 (1973)—would be constitutionally sus-pect. J.S. App. 174a–75a. Under such plans, a “nar-row statewide preference,” Bandemer, 478 U.S. at 130 (plurality op.), would send efficiency-gap scores off the charts because in close races, the party that wins

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“wastes” very few votes while the party that loses “wastes” all of its votes. This would cast a presump-tion of unconstitutionality on what many regard to be “a desirable and non-partisan policy choice.” J.S. App. 174a–75a. As the dissent put it, “Plaintiffs would use the Republicans’ own electoral success against them: . . . the more close races the Republicans win,” the larger the efficiency gap, and the larger the gap, the more likely “the Republicans’ wins must have been the result of an invidious gerrymander—a self-ful-filling prophecy.” J.S. App. 294a (Griesbach, J., dis-senting). More generally, the gap is overly sensitive to wave elections. “[W]inning close elections is the surest way to make sure the other side racks up lots of wasted votes—every losing vote is wasted, whereas only a few winning votes are wasted.” J.S. App. 293a (Griesbach, J., dissenting). So it is possible that a high efficiency gap indicates nothing except that one party beat the other party in several close elections—a fact that says nothing about whether the map itself is “too” partisan.

Finally, the efficiency gap is overbroad, putting so many plans in jeopardy that it “would risk [federal courts] assuming political, not legal, responsibility for a process that often produces ill will and distrust.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Plaintiffs’ 7% gap first-election threshold would find an impermissible effect in one of every three plans over nearly 45 years. See JA193–94, 201. Even considering only elections held in 2012 or 2014, Plaintiffs’ expert found an efficiency gap greater than

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10% in Florida, Indiana, Kansas, Michigan, Missouri, North Carolina, New York, Ohio, Rhode Island, Vir-ginia, Wisconsin, and Wyoming. SA253. Nor would this analysis be limited to state legislatures, as this metric would presumably be applied to plans ranging from congressional maps, see Vieth, 541 U.S. 267, to water districts, see Jimenez v. Hidalgo Cty. Water Im-provement Dist. No. 2, 424 U.S. 950 (1976), summarily aff’g 68 F.R.D. 668 (S.D. Tex. 1975), abrogated on other grounds by Bandemer, 478 U.S. 109.

3. Entrenchment. The district court adopted an entrenchment-based partisan test; Act 43, the court concluded, had an unlawful partisan effect because “it secured for Republicans a lasting Assembly majority,” J.S. App. 145a, by “impeding [Democrats’] ability to translate their votes into legislative seats . . . throughout the life of” the plan, J.S. App. 176a–77a. Plaintiffs did not urge the adoption of this test below and did not defend it in their Motion to Affirm. In-deed, Plaintiffs conceded that Vieth rejected “minority party entrenchment” as a test for impermissible par-tisan effect. See Dkt. 68:56. The district court’s ap-proach is thus foreclosed by binding precedent and waived by Plaintiffs’ position on appeal. But to the extent this Court concludes that entrenchment should play any part in a partisan-effects analysis, and holds that Act 43 is not otherwise permissible as a matter of law, see infra pp. 56–57, Defendants respectfully submit that a remand would be necessary to permit Defendants to fairly litigate the entrenchment issue.

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a. Plaintiffs’ concession below that this Court’s precedent foreclosed an entrenchment-based effects test was well warranted.

In Bandemer, the plurality proposed an effects test under which “unconstitutional discrimination oc-curs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” 478 U.S. at 132 (emphasis added). “[A] find-ing of unconstitutionality must be supported by evi-dence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133 (emphasis added). Every Justice in Vieth re-jected this test, see 541 U.S. at 282–84 (plurality op.); id. at 308 (Kennedy, J., concurring in the judgment); id. at 317–18 (Stevens, J., dissenting); id. at 346 (Souter, J., joined by Ginsburg, J., dissenting); id. at 355–56 (Breyer, J., dissenting), although Justice Breyer proposed a somewhat similar entrenchment rationale where, for example, a majority party had “twice failed to obtain a majority of the relevant legis-lative seats,” see id. at 366 (emphasis omitted).

The district court’s entrenchment test, “secur[ing] for Republicans a lasting Assembly majority,” J.S. App. 145a, based upon a degrading of the “ability to translate [ ] votes into legislative seats,” J.S. App. 176a–77a, is indistinguishable from the approach urged by the Bandemer plurality (and, to a more lim-ited extent, by Justice Breyer). Both the tests require

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“burdening a defined group’s representational rights” (i.e., “degrading a voter’s influence”) “over the life of the plan” (i.e., “consistently”). The claimed purpose of both inquiries is not to detect “disproportionality per se,” Bandemer, 478 U.S. at 143 n.21 (plurality op.); see J.S. App. 167a–68a, but to ascertain “continued frus-tration of the will of a majority,” Bandemer, 478 U.S. at 133 n.21 (plurality op.) (emphasis added), by en-trenching a “lasting Assembly majority” over the fol-lowing decade, J.S. App. 145a.

As this Court held in Vieth, entrenchment is not a relevant and reliable measure of unconstitutional partisan gerrymandering. For one thing, it rests upon the constitutionally baseless “principle that groups . . . have a right to proportional representation.” Vieth, 541 U.S. at 287–98 (plurality op.); id. at 308 (Kennedy, J., concurring in the judgment). At the same time, it does not overcome “the difficulties of as-sessing partisan strength statewide,” Vieth, 541 U.S. at 300 (plurality op.), including the problem of ascer-taining “a person’s politics, [which] is not an immuta-ble characteristic” and the undeniable fact “that majority status in statewide races [does not always] establish[ ] majority status for district contests,” id. at 287–88 (plurality op.). More practically, the record of Bandemer’s test proves that abstract entrenchment tests are unadministrable, producing only “puzzle-ment,” “consternation,” and “indeterminacy” in the lower courts. Id. at 282–83 (plurality op.).

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The district court’s gloss on entrenchment is, if anything, even less defensible than the Bandemer plurality’s test. In 2012, Wisconsin Democrats re-ceived 51% of the vote and secured 39% of the Assem-bly seats. See JA224. In 1982, Indiana Democrats earned 51.9% of the vote and won 43% of the seats. Bandemer, 478 U.S. at 115. The district court at-tempted to distinguish Bandemer by pointing out that the record here contained the results of a second elec-tion under Act 43, the 2014 election. J.S. App. 155a–58a. But Republicans won a majority of the votes cast (52%) in 2014, see JA224, so they were not a political minority entrenching itself, see Vieth, 541 U.S. at 366 (Breyer, J., dissenting) (a majority party “twice failed to obtain a majority” of seats). In any event, if the district court was suggesting that the Bandemer plu-rality’s test would have invalidated Act 43 because there is now a second election to show entrenchment, that would only further support Defendants’ point that the district court’s test and the Bandemer plural-ity’s test are one and the same.

b. Given Plaintiffs’ necessary concession below that an entrenchment-based inquiry is foreclosed by this Court’s precedent, as well as Plaintiffs’ single-minded focus on the efficiency gap, the parties did not fairly litigate this issue before the district court. To the extent that this Court were now to conclude that entrenchment plays any role in a partisan-effects analysis, but does not also conclude that Act 43 is law-ful for other reasons, vacatur and remand would be

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necessary. See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2131 (2014).

Without receiving any briefing on the issue of en-trenchment, the district court found that Act 43 “se-cured for Republicans a lasting Assembly majority” based upon the uniform swing analyses conducted by Drs. Gaddie and Mayer. J.S. App. 145a–46a. But nei-ther analysis is designed to test Republican party en-trenchment throughout the decade under Act 43.

Gaddie’s swing analysis does not support the dis-trict court’s conclusion that Act 43 will “secure[ ] for Republicans a lasting Assembly majority.” J.S. App. 145a. As the district court explained, a swing analy-sis “ask[s] the question . . . what might happen under different electoral conditions.” J.S. App. 148a (cita-tion omitted); but see LULAC, 548 U.S. at 420 (plural-ity op.) (“[W]e are wary of adopting a constitutional standard that invalidates a map based on unfair re-sults that would occur in a hypothetical state of af-fairs.”). To test this hypothetical, “the statewide vote percentage is altered by a fixed amount, typically in one-percentage-point increments, across all districts.” J.S. App. 148a–49a (citation omitted); Dkt. 148:222–23. Gaddie’s swing analysis predicted electoral change assuming that no incumbent would run for reelection, and making no prediction as to candidate strength or any other factor that could be expected under Act 43 in the real world. Dkt. 108:12, 50. No-tably, even if one were to take Gaddie’s swing analysis at face value, that analysis entirely refutes any notion

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that Act 43 entrenches the Republican Party in the majority throughout the decade. Under that analysis, Democrats would win a majority of the Assembly if they obtained just over 53% of the vote, SA339; J.S. App. 230a, a vote share that Democrats exceeded in two out of the three elections (2006 and 2008) leading up to Act 43, JA223–24.

Mayer’s swing analysis similarly does not support the district court’s entrenchment finding. As Mayer conceded at trial, his swing analysis was not designed to predict what would occur under Act 43 throughout the entire decade. Dkt. 149:92–93. Understanding Mayer’s methodology explains why that concession was unavoidable. Mayer conducted his analysis by taking the world after the 2012 election—in which Re-publicans secured a 60-39 majority, JA219–20—and then adding an “incumbent advantage,” worth as much as 4% (depending on the district), on the as-sumption that every incumbent would run again. Dkt. 149:81–92. He then assumed that Democrats would gain 3% in every district in a swing election. Dkt. 149:89; Dkt. 95:29. Unsurprisingly, after shift-ing all 60 Republican-held seat upwards by as much as 4% (based upon incumbency), the swing of three points to Democrats did not gain the Democrats many seats. But in Wisconsin, incumbents do not run in every single election. Far from it. For example, of the 60 Republican members who won election to the As-sembly in 2010, fewer than half were on the general

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election ballot for the Assembly again in 2014. Com-pare Defs. Ex. 538:9–34, Dkt. 147:27–28, with Defs. Ex. 541:9–31, Dkt. 147:27–28.

III. Act 43 Is Lawful Because It Complies With Traditional Redistricting Principles And Is Otherwise Unobjectionable

While the district court’s lack of jurisdiction, as well as Plaintiffs’ failure to articulate a limited and precise test, are reason enough to reverse the district court, there are additional grounds why Plaintiffs’ claims fail. The most obvious such reason comes both from Vieth and from the historical origins of the polit-ical-gerrymander concept itself: no unlawful political gerrymandering has occurred where, as in the case of Act 43, the legislature complied with traditional re-districting principles. At the very minimum, given that the Legislature that created Act 43 considered political implications only alongside traditional redis-tricting principles and other legitimate factors, and given that Act 43 did not depart drastically from the immediately prior court-drawn map, no further parti-sanship-based inquiry is necessary.

A. In Vieth, a majority of the Justices of this Court would not condemn as overly political a plan that com-plied with traditional redistricting principles. As Jus-tice Kennedy explained, any “limited and precise” standard must establish that the legislature drew dis-tricts “in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 306–07 (Kennedy, J.,

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concurring in the judgment) (emphasis added); accord Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008) (plurality op.) (partisan motivations do not establish a violation of the First and Fourteenth Amendments where the “law is supported by valid neutral justifications”). Drawing districting lines that comply with traditional redistricting principles is, of course, a legitimate legislative objective. See generally Harris v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1306 (2016). Justices Stevens and Souter (joined by Justice Ginsburg) were even more specific in their Vieth opinions, making noncompli-ance with traditional redistricting principles a neces-sary element of their respective tests. See 541 U.S. at 318 (Stevens, J., dissenting); id. at 347–48 (Souter, J., dissenting). Combining these Justices’ conclusions with the plurality’s holding that the federal courts cannot condemn any plan on partisanship grounds, id. at 281 (plurality op.), yields the controlling princi-ple that a plan that complies with traditional redis-tricting principles is not an unlawful partisan gerrymander, see Jacobsen, 466 U.S. at 115–18 & n.12; Moses H. Cone, 460 U.S. at 17.

The rule that map-drawers have not engaged in unlawful partisan gerrymandering when they have complied with these neutral principles derives from early American history. From the coinage of the term in 1812, complaints against the original gerrymander focused on the “fantastic shapes” of the districts and the “most distorted contour” of the “[t]he outer district of Essex county” in particular. See Griffith, supra, at

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17–19. In arguing against Ohio’s 1842 attempted ger-rymander, the Whigs lamented that one “need[ ] only a glance at the map to see how far contiguity of terri-tory has been regarded in the formation of this bill. It has not only not been regarded; it has been most grossly disregarded.” Daily Ohio St. J. (Columbus, August 12, 1842), supra pp. 8–9. In all, “[i]t is impos-sible to overstate the importance of the district’s gro-tesque shape as an essential element of its impropriety to those that condemned it in the nine-teenth century.” Foley, 84 U. Chi. L. Rev. at 712. Tra-ditional redistricting principles, such as compactness, operate to prevent such distorted district shapes. See Daniel D. Polsby & Robert D. Popper, The Third Cri-terion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301, 326–51 (1991).

A rule safeguarding against politics-based attacks on redistricting plans that comply with traditional re-districting principles would be sensible. Even in the context of racial gerrymandering, this Court previ-ously explained that “appearances do matter,” includ-ing because compliance with these principles is an “objective factor[ ]” with which a court may evaluate a map. See Shaw v. Reno, 509 U.S. 630, 647 (1993). Given that political considerations are “inevitabl[e]” in the redistricting process, Gaffney, 412 U.S. at 753, it would be reasonable to hold that, as a matter of law, there has not been “too much” partisanship, LULAC, 548 U.S. at 420 (plurality op.), when the map-drawers have complied with traditional principles.

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That this Court ultimately decided to permit ra-cial-gerrymandering challenges against districts that comply with traditional redistricting principles, Be-thune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017), does not suggest that a different approach is inappropriate in politics-based cases (especially if this Court permits statewide partisan-gerrymander-ing claims, whereas such claims are not permitted in the racial-gerrymandering context, see supra pp. 28–30). “Race is an impermissible classification”; “[p]oli-tics is quite a different matter.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment) (citations omitted). A plan that complies with traditional redis-tricting principles and yet is still predominantly mo-tivated by race would be deeply constitutionally flawed, Bethune-Hill, 137 S. Ct. at 799, including be-cause of the sordid history of racial discrimination in our country, Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017). No such special consideration applies in the partisanship context, given the centrality of traditional redistricting principles to the historical conception of a partisan gerrymander.

In the present case, Plaintiffs did not argue below that Act 43 failed to comply with traditional redis-tricting principles. J.S. App. 250a–51a (Griesbach, J., dissenting). To the contrary, it was undisputed that Act 43 generally matched the immediately prior court-drawn map on these principles. See supra pp. 16, 21. That is reason enough to hold that Act 43 is lawful.

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B. Even if this Court concludes that Act 43’s com-pliance with traditional redistricting principles does not bar Plaintiffs’ lawsuit, the fact that Act 43 does comply with these principles, that the Wisconsin Leg-islature took politics into account as one of many le-gitimate factors, and that Act 43’s results have proven so similar to those that obtained under the 2002 court-drawn map, all demonstrate Act 43’s legality.

The record reveals that the Legislature’s map-drawers took politics into account as one of many fac-tors. The map-drawers first drew and then “locked” in the Milwaukee districts to comply with the VRA. See supra p. 14. Then, they carefully designed their draft maps to comply with equal-population require-ments, as well as traditional redistricting principles such as compactness, contiguity, and respect for polit-ical-subdivision lines. See supra pp. 14–15. Although the map-drawers took political implications into ac-count, that is unsurprising and unremarkable. “The reality is that districting inevitably has and is in-tended to have substantial political consequences,” Gaffney, 412 U.S. at 753 (emphasis added), and has since the Founding, see supra pp. 5–10. At the same time, politics did not dominate the district lines that the Legislature adopted as much as in the early Amer-ican history examples discussed above, supra pp. 5–10, in Bandemer, where the legislature adopted dis-tricts with “irregular shape[s]” and a “peculiar mix of single-member and multimember districts,” 478 U.S. at 116 (plurality op.), or in Vieth, which included a

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district that looked “like a dragon descending on Phil-adelphia,” 541 U.S. at 339 (Stevens, J., dissenting) (ci-tation omitted).

The map the Legislature ultimately adopted is strikingly similar to the 2002 court-drawn map, in terms of compliance with traditional redistricting principles, district shapes, and results.

(Left, SA361 (Act 43); Right, SA363 (2002 court-drawn map)).

The election results under these plans are also comparable. Under the 2002 court-drawn map, Re-publicans won 58 seats with 50.50% of the vote in 2002, 60 seats with 50% in 2004, 52 seats with 45.25% in 2006, 46 seats with 46% in 2008, and 60 seats with 53.50% in 2010. JA219–20, 223–24. Under Act 43, they won 60 seats with 48.6% of the vote in 2012, and 63 seats with 52% of the vote in 2014. JA219–20, 224.

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The similarities between the results under the 2002 court-drawn map and the results under Act 43 illustrate that the dissent below was correct when it explained that, to achieve the proportional represen-tation that Plaintiffs desire, Republicans would have needed to “engage in heroic levels of nonpartisan statesmanship” by abandoning their advantage under the 2002 court-drawn map. J.S. App. 245a–46a. In-deed, had Republicans intended only to retain their advantage under the 2002 court-drawn map and thus redistricted in the “most neutral way [a federal court] could conceive,” Baumgart, 2002 WL 34127471, at *7—sticking as closely as possible to the prior, court-drawn map, while “adjusting it for population devia-tions,” id.—Plaintiffs would almost certainly con-demn that map as too partisan.

The lengths that Republicans would have had to go in order to satisfy Plaintiffs’ proportional represen-tation preferences are further illustrated by Professor Mayer’s Demonstration Plan. Mayer created his Plan to drive down the efficiency gap, Dkt. 148:143, includ-ing placing 37 incumbents (of which 26 were Republi-cans) into districts with other incumbents, see Dkt. 149:112–18; Ex. 520 (interactive map).12 Mayer was only able to achieve his roughly proportional repre-sentation results for the 2012 election by drawing, with the benefit of hindsight, 13 districts that he mod-eled as narrow Democrat wins under the 2012 statewide vote totals. Dkt. 149:93–101; see Defs. Ex.

12 Interactive map available at http://arcg.is/0TTPeS.

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568, Dkt. 147:27–28. With those narrowly Democrat districts assumed, Mayer projected that Democrats would have won 49 seats if they obtained 51.2% of the vote in 2012, see SA309 (center column), a percentage of the vote that, according to Professor Jackman’s cal-culations, the Democrats did in fact approximate in 2012, JA224 (estimating that Democrats won 51.4% of the vote in 2012). But the long-term consequences of Mayer’s results-driven approach show how difficult it is for Democrats to achieve proportional represen-tation in Wisconsin given today’s political conditions. If one removes from Mayer’s swing analysis the unre-alistic assumption that every 2012 incumbent would run in 2014, see supra pp. 58–59, then Republicans would have been projected to win 63 seats with around 52% of the vote under Mayer’s Plan in 2014. This is because, under a uniform swing analysis of the type that Gaddie employed (and that the district court re-lied upon, see supra p. 21), Mayer’s 13 reverse-engi-neered, narrowly Democrat districts from 2012 would flip to Republican control in 2014 when Republicans increased their statewide Assembly vote by 3.4%. Dkt. 149:94–101. Sixty-three seats is the same num-ber that Republicans actually won in 2014 under Act 43, with an estimated 52% of the vote. See JA219–20, 224.

* * *

This Court has never found that a state legisla-ture engaged in unlawful partisan gerrymandering.

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Plaintiffs have presented this Court with no new, his-torical-based redistricting principles and no new, ad-ministrable test. They have, instead, recycled arguments that this Court has already rejected, while attacking a plan that complies with traditional redis-tricting principles and is strikingly similar to the im-mediately prior, court-drawn plan. Given the jurisdictional and merits-based deficiencies in Plain-tiffs’ claims, their lawsuit must be dismissed.

CONCLUSION

The judgment of the district court should be re-versed.

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Respectfully submitted,

BRAD D. SCHIMEL Attorney General

MISHA TSEYTLIN Solicitor General Counsel of Record

KEVIN M. LEROY Deputy Solicitor General State of Wisconsin Department of Justice 17 West Main Street Madison, WI 53703 tseytlinm@doj.state.wi.us (608) 267-9323

RYAN J. WALSH Chief Deputy Solicitor General AMY C. MILLER Assistant Solicitor General BRIAN P. KEENAN Assistant Attorney General July 2017

No. 16-1161

IN THE

Supreme Court of the United States ______________

BEVERLY R. GILL, ET AL., Appellants,

v. WILLIAM WHITFORD, ET AL.,

Appellees. ______________

On Appeal from the United States District Court for the Western District of Wisconsin

______________

BRIEF FOR APPELLEES ______________

Jessica Ring Amunson JENNER & BLOCK LLP 1099 New York Ave., NW, Ste. 900 Washington, DC 20001

Michele Odorizzi MAYER BROWN, LLP 71 S. Wacker Dr. Chicago, IL 60606

Douglas M. Poland RATHJE & WOODWARD, LLC 10 E. Doty St., Ste. 507 Madison, WI 53703

Peter G. Earle LAW OFFICE OF PETER G. EARLE839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202

Paul M. Smith Counsel of Record J. Gerald Hebert Danielle M. Lang CAMPAIGN LEGAL CENTER 1411 K St., NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org

Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th St., Ste. 510 Chicago, IL 60637

Ruth M. Greenwood Annabelle E. Harless CAMPAIGN LEGAL CENTER 73 W. Monroe St., Ste. 322 Chicago, IL 60603

Attorneys for Appellees

i QUESTIONS PRESENTED

1. Whether the district court correctly held that Appellees have standing to challenge in its entirety the district plan for Wisconsin’s State Assembly as an unconstitutional partisan gerrymander?

2. Whether the district court correctly held that partisan gerrymandering claims are justiciable pursuant to the test the court adopted—requiring discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification?

3. Whether the district court correctly held that compliance with traditional districting criteria is not a safe harbor that precludes any possibility of liability for partisan gerrymandering?

4. Whether Appellants are entitled to a remand on the issue of entrenchment even though Appellees and the district court emphasized the durability of a party’s advantage throughout the litigation?

ii TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................ i 

TABLE OF AUTHORITIES ........................................... v 

STATEMENT ..................................................................... 1 

I.  Act 43 Was Intended to Give Republicans a Large and Durable Advantage. .......................... 4 

II.  Act 43 Has Exhibited a Large and Durable Pro-Republican Partisan Asymmetry. ............... 10 

III.  No Neutral Justification Exists for Act 43’s Large and Durable Partisan Asymmetry. ............................................................ 17 

IV.  The District Court Invalidated Act 43 After Extensive Discovery and a Four-Day Trial. ................................................................ 19 

V.  Partisan Gerrymandering Has Become More Extreme, More Persistent, and More Impactful. ................................................................ 21 

SUMMARY OF ARGUMENT ....................................... 24 

ARGUMENT ..................................................................... 28 

I.  Appellees Have Standing to Bring Their Statewide Claim..................................................... 28 

II.  Partisan Gerrymandering Claims Are Justiciable Under the District Court’s Test. ......................................................................... 32 

A.  The District Court’s Test Is Judicially Discernible. ............................... 33 

iii 1.  The Test Captures the

Constitutional Harms Inflicted by Partisan Gerrymandering. ........................... 34 

2.  The Test Is Based on the “Comprehensive and Neutral Principle” of Partisan Symmetry. ...................... 37 

3.  The Test Is Rooted in the Court’s Partisan Gerrymandering Case Law.......... 41 

B.  The District Court’s Test Is Judicially Manageable. .............................. 44 

1.  The Test’s Intent and Justification Prongs Have Already Been Used Successfully. ................................... 44 

2.  The Test’s Effect Prong Is Easy to Administer. ...................... 46 

3.  The Test Reflects Political Realities. ......................................... 49 

4.  The Test’s Implications Are Neutral and Limited. .................... 51 

5.  Compliance with the Test Is Straightforward. ............................ 54 

III.  Compliance with Traditional Districting Criteria Is Not a Safe Harbor. ............................ 56 

IV.  Appellants Are Not Entitled to a Remand. .................................................................. 60 

iv CONCLUSION ................................................................. 62 

v TABLE OF AUTHORITIES

CASES

Alabama Legislature Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) .......................... 24

Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015) ..................................... 1, 4, 39

Baker v. Carr, 369 U.S. 186 (1962) ............................ 30

Baldus v. Members of Wisconsin Government Accountability Board, 843 F. Supp. 2d 955 (E.D. Wis. 2012) ....................................................... 4

Baldus v. Members of Wisconsin Government Accountability Board, 849 F. Supp. 2d 840 (E.D. Wis. 2012) ............................................. 5, 9, 10

Benisek v. Lamone, No. JKB-13-3233, slip op. (D. Md. Aug. 24, 2017) ...................................... 1, 22

Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017) ...................... 58, 59

Brown v. Thomson, 462 U.S. 835 (1983) ............. 45, 59

Bush v. Vera, 517 U.S. 952 (1996) .............................. 49

Chapman v. Meier, 420 U.S. 1 (1975) ....................... 45

Cooper v. Harris, 137 S. Ct. 1455 (2017) ................... 31

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

Elrod v. Burns, 427 U.S. 347 (1976) .......................... 36

Evenwel v. Abbott, 136 S. Ct. 1120 (2016)................. 29

Gaffney v. Cummings, 412 U.S. 735 (1973) ....... 45, 56

vi Georgia v. Ashcroft, 539 U.S. 461 (2003),

superseded by statute as stated in Alabama Legislature Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) .................................................... 12

Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016) .................... 45

Jenness v. Fortson, 403 U.S. 431 (1971) ................... 35

Karcher v. Daggett, 462 U.S. 725 (1983) ................... 12

Kilgarlin v. Hill, 386 U.S. 120 (1967)........................ 45

Larios v. Perdue, 306 F. Supp. 2d 1190 (N.D. Ga. 2003) .................................................................. 29

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

Maestas v. Hall, 274 P.3d 66 (N.M. 2012) ................. 11

Mahan v. Howell, 410 U.S. 315 (1973) .......... 45, 48, 59

Matal v. Tam, 137 S. Ct. 1744 (2017) ........................ 36

McConnell v. FEC, 540 U.S. 93 (2003), overruled by Citizens United v. FEC, 558 U.S. 310 (2010) ........................................................ 35

Miller v. Johnson, 515 U.S. 900 (1995) ... 30, 53, 58, 59

Pope v. County of Albany, No. 11-cv-07361, 2014 WL 316703 (N.D.N.Y. Jan. 28, 2014) ......... 29

Prosser v. Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992) ................................................ 9, 11

Reynolds v. Sims, 377 U.S. 533 (1964) .. 1, 4, 29, 32, 35

vii Robertson v. Bartels, 148 F. Supp. 2d 443

(D.N.J. 2001), summarily aff’d, 534 U.S. 1110 (2002) .............................................................. 11

Rogers v. Lodge, 458 U.S. 613 (1982) ......................... 35

Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995) ........................... 36

Shaw v. Hunt, 517 U.S. 899 (1996) ............................ 29

Shaw v. Reno, 509 U.S. 630 (1993) ....................... 30, 58

Swann v. Adams, 385 U.S. 440 (1967) ...................... 48

Thornburg v. Gingles, 478 U.S. 30 (1986) ........... 32, 48

United States v. Hays, 515 U.S. 737 (1995) .............. 30

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

Warth v. Seldin, 422 U.S. 490 (1975) ............. 24, 28, 29

White v. Regester, 412 U.S. 755 (1973) ...................... 48

OTHER AUTHORITIES

Br. of Republican National Committee as Amicus Curiae, Davis v. Bandemer, 478 U.S. 109 (1986), 1985 WL 670030 ......................... 52

Devin Caughey et al., Partisan Gerrymandering and the Political Process, 16 Election L.J. (forthcoming 2017), http://cwarshaw.scripts.mit.edu/papers/CTW_efficiency_gap_170515.pdf .............................. 23

Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting, 16 Election L.J. (forthcoming 2017), http://www.umich.edu/~jowei/Political_Geography_Wisconsin_Redistricting.pdf ......... 19, 55

viii Jowei Chen & Jonathan Rodden, Cutting

Through the Thicket, 14 Election L.J. 331 (2015) ....................................................................... 56

Gary W. Cox & Jonathan N. Katz, Elbridge Gerry’s Salamander (2002) .................................. 54

Nicholas Eubank & Jonathan Rodden, Who Is My Neighbor? The Spatial Efficiency of Partisanship (Aug. 23, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025082 .................................................. 19

John N. Friedman & Richard T. Holden, Optimal Gerrymandering, 98 Am. Econ. Rev. 113 (2008) ....................................................... 23

Elmer C. Griffith, The Rise and Development of the Gerrymander (1907) ................................... 22

Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 Election L.J. 2 (2007) ............. 11, 12, 47

Ellen D. Katz et al., Documenting Discrimination in Voting, 39 U. Mich. J.L. Reform 643 (2006) .................................................. 54

Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312 (2015) ......................................... 13

Anthony J. McGann et al., Gerrymandering in America (2016) ....................................................... 22

ix Eric McGhee, Measuring Partisan Bias in

Single-Member District Electoral Systems, 39 Legis. Stud. Q. 55 (2014) .................................. 12

National Conference of State Legislatures, Redistricting Law 2010 (2009) ............................. 55

Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28 (2004) .................................................................. 56

Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. Rev. 530 (2011) .......................... 23, 50

Corwin D. Smidt, Polarization and the Decline of the American Floating Voter, 61 Am. J. Pol. Sci. 365 (2017) ................................................. 23

1 STATEMENT

“Partisan gerrymanders . . . are incompatible with democratic principles.” Ariz. State Legis. v. Ariz. Indep. Redist. Comm’n, 135 S. Ct. 2652, 2658 (2015) (quotation marks and alterations omitted). They violate the Equal Protection Clause by discriminating against the targeted party’s voters, preventing their ballots from translating into “fair and effective representation.” Reynolds v. Sims, 377 U.S. 533, 565-66 (1964). They thus can entrench the line-drawing party in power, even if that party lacks majority support among the electorate. Gerrymanders also amount to forbidden viewpoint discrimination in contravention of the First Amendment. They “penaliz[e] citizens”—by diluting their electoral influence—“because of their . . . association with a political party, or their expression of political views.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment).

As the record in this case makes clear, partisan gerrymanders have become more common, more severe, and more durable in their effects since this Court last considered their constitutionality more than a decade ago. This is the product of better map-drawing technology utilizing more sophisticated voter data about an increasingly polarized electorate. The result, in too many states, has been a subversion of democracy, as officeholders have wrested power from voters. As Judge Niemeyer put it recently, “The problem is cancerous, undermining the fundamental tenets of our form of democracy.” Benisek v. Lamone, No. JKB-13-3233, slip op. at 27 (D. Md. Aug. 24, 2017) (Niemeyer, J., dissenting).

2 In this Court’s decision in Vieth, not a single Justice

disagreed with the principle that the excessive injection of politics into redistricting severely distorts democracy and violates the Constitution. 541 U.S. at 292 (plurality opinion); id. at 314-17 (Kennedy J., concurring); id. at 317-18 (Stevens, J., dissenting); id. at 343 (Souter, J., dissenting); id. at 355 (Breyer, J., dissenting). Nor do Appellants disagree with that principle. Instead, they argue that courts are powerless to redress this affront to the Constitution, because, they say, there is no principled way to distinguish between permissible partisanship in redistricting and unlawful gerrymandering.

The district court properly rejected this argument. The three-pronged test the court derived from this Court’s jurisprudence provides a judicially discernible and manageable approach for identifying district plans that transgress basic constitutional norms. Under this test, before invalidating a plan, a court must make a series of findings. First, it must find that the map was designed with discriminatory intent: “to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation.” JSA109a-110a.1 Second, it must determine that the map causes a “large and durable” discriminatory effect: one that is “sizeable” and likely to “persist throughout the decennial period.” JSA166a, 172a-173a. And third, it must conclude that there is no valid justification for this effect: no way to explain it “by

1 Appellees abbreviate Volume I of the Joint Appendix “JA,” Volume II of the Joint Appendix “SA,” and the Jurisdictional Statement Appendix “JSA.”

3 the legitimate state prerogatives and neutral factors that are implicated in the districting process.” JSA178a.

After extensive discovery and a four-day trial, the district court applied this test and held that the plan for the Wisconsin State Assembly, Act 43, is unconstitutional. The court found, first, that Act 43 was crafted with an obsessive focus on partisan advantage. Its drafters systematically cracked and packed Democratic voters, seeking to guarantee Republicans a supermajority of Assembly seats even if they garnered only a minority of the statewide vote. Second, the court concluded that Act 43 performed exactly as intended. According to quantitative measures of partisan asymmetry, “[i]t is undisputed that, from 1972 to 2010, not a single legislative map in the country was as asymmetric in its first two elections” as Act 43. JA120a. This asymmetry is so deeply rooted that it would take an “‘unprecedented political earthquake’” to dislodge it. JSA164a. And third, the court determined that there was no neutral justification for Act 43’s discriminatory effect. To the contrary, several sets of alternative maps demonstrated that Appellants could have achieved their valid redistricting goals without handicapping either party’s supporters.

This Court should affirm because the district court’s test provides a judicially discernible and manageable standard for adjudicating partisan gerrymandering claims, and there is no dispute that under this standard, Act 43 is unconstitutional. An affirmance would strike a blow against a practice, engaged in by both parties, that increasingly threatens American democracy. By contrast, a decision barring any judicial remedy in cases

4 like this one would leave voters with nowhere to turn. The legislators who benefit from gerrymandering have no incentive to curb it. The voters victimized by the practice cannot oust their representatives even if they change their votes in very large numbers. Moreover, in most states, voters are unable to impose state constitutional constraints without legislative assent. It is thus only through the courts’ intervention that “fair and effective representation” can be restored. Reynolds, 377 U.S. at 565-66.

The impact of an affirmance would be neutral and limited, yet potent. Both parties’ gerrymanders would be equally vulnerable to legal challenge. Only a relatively small percentage of current plans would become actionable. But, as preparations begin for the next redistricting cycle, mapmakers would be powerfully reminded of “‘the core principle of republican government,’ namely ‘that the voters should choose their representatives, not the other way around.’” Ariz. State Legis., 135 S. Ct. at 2677 (citation omitted).

I. Act 43 Was Intended to Give Republicans a Large and Durable Advantage.

Throughout their brief, Appellants paint a rosy picture of Act 43’s enactment, with traditional redistricting criteria predominating and politics entering only as an afterthought. App. Br. 13-16, 63-66. But this narrative represents “a desperate attempt to hide from both the Court and the public the true nature of exactly what transpired in the redistricting process.” Baldus v. Members of Wis. Gov’t Accountability Bd., 843 F. Supp. 2d 955, 959 (E.D. Wis. 2012) (Baldus I). Indeed, the narrative is “almost laughable” because “partisan

5 motivation . . . clearly lay behind Act 43.” Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 843 (E.D. Wis. 2012) (Baldus II).

The district court exposed the “true nature” of Act 43’s enactment in painstaking detail. When the process commenced, in early 2011, Republicans enjoyed full control of Wisconsin’s state government. This was the first time in more than forty years that there was unified government at the start of a redistricting cycle. JSA 9a-12a. The Republican legislative leadership immediately launched an elaborate effort to “secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade.” JSA140a. The leadership began by outsourcing the plan’s design to a private law firm, thus avoiding ordinary rules of legislative transparency. JSA12a; Exs. 355-356. This firm set up a “map room” to which only a handful of attorneys and legislative aides had access. JSA12a; SA355. The crafting of Act 43 took place, in secret, in this room. Id.

Next, Act 43’s drafters created “composite scores” that predicted electoral performance by averaging Republican candidates’ vote shares in recent statewide races. JSA126a-127a. To assist the drafters with their analyses, the leadership retained political scientist Professor Keith Gaddie. He constructed a regression model that used past Assembly election results to assess the underlying partisan character of every geographic unit in Wisconsin. JSA 127a. He wrote in a memo that this model would not be used to “create[] a fair, balanced, or even a reactive map.” SA322. Rather, it would be used to verify the accuracy of the drafters’ composite scores.

6 Id. The drafters sent their scores to Professor Gaddie, who confirmed that they were an “almost perfect proxy” for his more sophisticated measure. Ex. 175.

Armed with these scores, Act 43’s authors designed a series of provisional plans that combined the authors’ names with the plans’ goals: “Adam Assertive,” “Joe Aggressive,” and the like. JSA19a-20a. For each of these plans, the authors generated a spreadsheet that tallied each district’s expected electoral performance. SA323-37, 353-54, 356-58. In doing so, they estimated that Republicans would win 48.6% of the statewide Assembly vote. Id. For this minority of the vote, the plans steadily ratcheted upward the expected number of Republican seats: from forty-nine (out of ninety-nine) under the court-drawn 2000s map to a supermajority of fifty-nine under the “Final Map.” JSA129a-130a; SA359.

Beyond the plan-specific spreadsheets, Act 43’s drafters analyzed their maps’ electoral implications in several more ways. Their “Tale of the Tape” document, for example, tracked the numbers of “GOP” and “DEM” seats under four separate plans. JSA133a; SA340-43. It trumpeted that under the 2000s map, “49 seats are 50% [Republican] or better,” while under the near-final “Team map,” “59 Assembly seats are 50% or better.” Id. Similarly, the drafters sorted the Team Map’s districts into nine categories: “Statistical Pick Up,” “GOP seats strengthened a lot,” “GOP seats strengthened a little,” “GOP Donors to the Team,” “DEMS weakened,” “Pairings,” and so on. JSA133a-135a; SA344-45. Fully twenty-five Republican seats were strengthened. Five Democratic incumbents were also pitted against

7 Republican incumbents in districts that were safely (at least 57%) Republican. Id.

To create this advantage, Act 43’s authors both “cracked” Democratic voters among numerous districts and “packed” them in others. The first pair of maps below highlight cracking in and around Milwaukee. A series of elongated districts (all won by Republican candidates) extract urban Democratic voters from Milwaukee County and combine them with larger numbers of suburban Republicans in Ozaukee, Washington, and Waukesha Counties. The result is a reduction in the number of Democratic districts in the region from four to two. The second pair of maps illustrate packing in Kenosha and Racine. Four lakeside districts previously won by Democrats are collapsed into three even more heavily Democratic districts, in the process unnecessarily dividing Kenosha and Racine Counties.2

These examples could be multiplied many times over. In sum, Act 43’s cracking and packing produced forty-two districts where Republicans were expected to receive between 50% and 60% of the vote, compared to only seventeen such districts for Democrats. There were also eight districts where Democrats were expected to receive more than 80% of the vote, compared to zero such districts for Republicans. JSA147a-148a; SA67.

2 The shading of these maps is based on the composite scores created by Act 43’s drafters to predict electoral performance. SA325.

8

The district court found that Act 43’s authors not

only intended to achieve a large Republican advantage, but also “were concerned with, and convinced of, the durability of their plan.” JSA139a. Notably, the spreadsheet for the Final Map showed the number of “Swing” seats plummeting from nineteen to ten. JSA133a; SA325. With so few competitive seats, a gerrymander becomes even harder to uproot. Additionally, the Legislature’s consultant, Professor Gaddie, conducted “sensitivity testing” to evaluate Act 43’s effects over a wide range of electoral conditions. He swung the expected statewide vote by up to ten percentage points in each party’s direction, and then calculated what each party’s performance would be in each district if it swung by the same margin as the statewide vote. JSA131a. This testing revealed that

9 “Democrats . . . would need 54% of the statewide vote to capture a simple majority of Assembly seats”—a feat achieved just once by either party over the last generation. JSA47a n.124, 135a; SA339.3

In contrast to their relentless focus on partisan advantage, Act 43’s drafters paid little attention to traditional districting principles. As the district court found, “measures of traditional districting criteria were [not] being scrutinized on a regular basis or with the intensity that partisan scores were being evaluated.” JSA130a n.195. As a consequence, Act 43 divided fifty-eight of seventy-two counties, which was seven more than any other plan in Wisconsin’s modern history. JA216. Act 43’s districts were also less compact, on average, than those of any other Wisconsin map for which data is available. Id. Act 43 further moved more than two million people into new districts, or seven times more than was necessary to attain population equality. JSA214a. It paired twenty-two incumbents as well, or six more than a court had previously paired in its Assembly and Senate plans combined. Ex. 178 at 34; see Prosser v. Elections Bd., 793 F. Supp. 859, 871 (W.D. Wis. 1992). And Act 43’s initial treatment of Latino voters in Milwaukee was so deficient that portions of the map were ruled unlawful under Section 2 of the Voting Rights Act. See Baldus II, 849 F. Supp. 2d at 854-58.

3 Between 1990 and 2016, a party exceeded 54% of the statewide vote only in 2006. SA222. Appellants note that Professor Gaddie’s sensitivity testing did not take into account incumbency. App. Br. 57. This is true—and means that Democrats would need substantially more than 54% of the statewide vote to oust enough Republican incumbents to win a majority of Assembly seats.

10 Moreover, “upending more than a century of practice,” new ward lines were drawn after Act 43 was enacted. Id. at 846. In every previous Wisconsin redistricting, municipalities had designed wards first, and districts had then faithfully followed the wards’ boundaries. Id

After Act 43 was fine-tuned in secret for four months, it was introduced, debated, and passed (on a party line vote) in nine days in July 2011. JSA29a. Promoting the bill, one of Act 43’s drafters told the Republican caucus, “The maps we pass will determine who’s here 10 years from now. . . . We have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.” SA330.

II. Act 43 Has Exhibited a Large and Durable Pro-Republican Partisan Asymmetry.

The district court concluded that “[i]t is clear that the drafters got what they intended to get.” JSA146a. Act 43 in fact “secured for Republicans a lasting Assembly majority” by “allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%.” JSA145a. Strikingly, the 2012 election almost perfectly fulfilled the drafters’ forecasts. They had anticipated Republican candidates winning 48.6% of the statewide vote along with fifty-nine Assembly seats. SA358. Republicans indeed won 48.6% of the vote, but converted this vote share into sixty rather than fifty-nine seats. JSA148a. In both 2014 and 2016, Republicans received 52.0% of the statewide vote. With this narrow majority, they won sixty-three seats in 2014 and sixty-four seats in 2016. Id.; Br. of Eric McGhee as Amicus Curiae (“McGhee Br.”) at 33.

11 The district court’s finding that Act 43 produced a

discriminatory effect was “further bolstered” by measures of partisan asymmetry that social scientists have developed to assess the severity of partisan gerrymandering. JSA159a. Partisan symmetry is the intuitive idea that “‘the electoral system [should] treat similarly-situated parties equally’” so that they are able to translate their popular support into legislative representation with approximately equal ease. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 466 (2006) (“LULAC”) (Stevens, J., concurring in part and dissenting in part) (citation omitted). Partisan symmetry is “widely accepted by scholars as providing a measure of partisan fairness in [single-member-district] electoral systems.” Id. Indeed, “for many years such a view has been virtually a consensus position of the scholarly community.” Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 Election L.J. 2, 6 (2007). Precisely because of its widespread acceptance, line-drawers (including in Wisconsin) have often sought to achieve partisan symmetry when crafting their maps. See, e.g., Robertson v. Bartels, 148 F. Supp. 2d 443, 459 (D.N.J. 2001), summarily aff’d, 534 U.S. 1110 (2002); Prosser, 793 F. Supp. at 868; Maestas v. Hall, 274 P.3d 66, 79 (N.M. 2012).

The Court discussed a particular asymmetry metric, usually called “partisan bias,” in LULAC. See 548 U.S. at 419-20 (opinion of Kennedy, J.); id. at 466 (Stevens, J., concurring in part and dissenting in part). Partisan bias is defined as the difference between the shares of seats that the major parties would win if they each received

12 the same share (typically 50%) of the statewide vote. See id. Justice Kennedy correctly observed that partisan bias “depend[s] on conjecture” about what would transpire in a hypothetical tied election. Id. at 420 (opinion of Kennedy, J.). This conjecture is quite speculative when one party predominates statewide. See Grofman & King, supra, at 18-19. But in a competitive jurisdiction like Wisconsin, where both parties receive close to 50% of the statewide vote, the adjustments needed to simulate a tied election are minor, and partisan bias can be used reliably. See id.

In this litigation, Appellees also presented evidence about another measure of partisan asymmetry: the “efficiency gap.”4 This metric is based on the insight—repeatedly expressed in the Court’s opinions—that partisan gerrymandering is always carried out by cracking a party’s supporters among many districts, in which their preferred candidates lose by relatively narrow margins; and/or by packing a party’s backers in a few districts, in which their preferred candidates win by enormous margins. See, e.g., Vieth, 541 U.S. at 286 n.7 (plurality opinion); Davis v. Bandemer, 478 U.S. 109, 117 n.6 (1986) (plurality opinion); Karcher v. Daggett, 462 U.S. 725, 754 n.13 (1983) (Stevens, J., concurring). As the Court has recognized, both cracking and packing produce votes that are “wasted” in the sense that they do not contribute to a candidate’s victory. See, e.g., Georgia v. Ashcroft, 539 U.S. 461, 469 (2003); Bandemer, 478 U.S. at 117 n.6 (plurality opinion). In the case of

4 This metric was developed in a peer-reviewed political science journal. See Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Legis. Stud. Q. 55 (2014).

13 cracking, all votes cast for the losing candidate are “wasted.” In the case of packing, all votes cast for the winning candidate, above the 50% (plus one) threshold needed for victory, are “wasted.” The efficiency gap is calculated by taking one party’s total wasted votes in an election, subtracting the other party’s total wasted votes, and dividing by the total number of votes cast. It captures in a single number the extent to which district lines crack and pack one party’s voters more than the other party’s voters. JSA159a-162a.5

Unlike partisan bias, the efficiency gap does not “depend on conjecture” about what would occur in a hypothetical election. LULAC, 548 U.S. at 420 (opinion of Kennedy, J.). As the district court found, it “is calculated using the results of actual elections,” and so “does not suffer from this drawback.” JSA169a n.300. The efficiency gap is therefore meaningful no matter how competitive or uncompetitive a jurisdiction happens to be. In a competitive state, the efficiency gap and partisan bias are highly correlated, and so generally point in the same direction. SA346; Dkt. 149:191-93. But in an uncompetitive state, as already noted, partisan bias is less dependable. Id.

5 Social scientists also assess partisan gerrymandering by calculating the difference between a party’s mean vote share and median vote share across all of a plan’s districts. When a party’s median vote share is smaller than its mean vote share, the district distribution is skewed against it. See, e.g., Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law, 14 Election L.J. 312 (2015). The mean-median difference is mathematically related to partisan bias, see id. at 315, and thus shares most of its properties.

14 Appellees showed at trial that Wisconsin’s Assembly

plans were highly symmetric from the 1970s through the 1990s. Over this three-decade period, they averaged a partisan bias of 0.4% and an efficiency gap of -1.5%. SA347. (By convention, positive scores denote pro-Democratic asymmetries and negative scores pro-Republican asymmetries.) Wisconsin’s 2000s map was moderately asymmetric—though a far cry from Act 436—averaging a partisan bias of -6.6% and an efficiency gap of -7.6%. Id. The reason may be that the court relied on the Republican litigants’ expert when designing its plan. As one of Act 43’s drafters boasted in an e-mail, “Without Grofman in 2001 we would not have succeeded in getting the map we did get as [the court] followed his direction in drawing the map.” SA352.

In the current cycle, Act 43 exhibited partisan biases of -12.6%, -11.6%, and -12.7%, respectively, in 2012, 2014, and 2016. In other words, had these elections been perfectly tied, Republicans would have won between 61.6% and 62.7% of the seats in the Assembly. SA347; McGhee Br. at 33. Act 43 also exhibited efficiency gaps of -13.3%, -9.6%, and -10.7% in 2012, 2014, and 2016. That is, votes for Democratic Assembly candidates were wasted at a rate from 9.6 to 13.3 percentage points higher than the rate at which Republican votes were wasted. Id.; JSA173a.7

6 Act 43’s drafters expected Act 43 to yield ten more Republican seats than the 2000s map. JSA129a-130a; SA359. 7 Act 43 further exhibited mean-median differences of -5.6%, -6.9%, and -7.0% in 2012, 2014, and 2016. Dkt. 134:39; McGhee Br. at 33.

15 These asymmetries are not only more severe than

any that Wisconsin has experienced over the last half-century, but also extreme outliers compared to the nation as a whole. Appellees’ expert, Professor Simon Jackman, calculated the average efficiency gap of almost every state house plan in America from 1972 to 2014. SA187. As the below chart illustrates, Act 43’s skew was exceeded by only four other plans over this period. JSA50a. In fact, it is undisputed that prior to this decade, “not a single legislative map in the country was as asymmetric in its first two elections” as Act 43. JA120.

16 That Act 43 has produced historically large

asymmetries in three straight elections—more than half of a redistricting cycle—itself establishes “the durability of Act 43’s pro-Republican [tilt].” JSA173a. These election results were corroborated by Professor Jackman’s analysis of how plans’ initial efficiency gaps are related to the average efficiency gaps they exhibit over their lifetimes. Based on this analysis, the district court found that “Republicans’ ability to translate their votes into seats will continue at a significantly advantageous rate through the decennial period.” JSA173a-174a.

The election results were further supported by the sensitivity testing conducted by both of Appellees’ experts (Professor Jackman and Professor Kenneth Mayer) and the Legislature’s consultant (Professor Gaddie). As noted above, Professor Gaddie did not take incumbency into account, and determined that Democrats would need 54% of the statewide vote to win a majority of the Assembly. JSA135a; SA339. Professor Jackman did consider incumbency, and showed that Act 43 would continue exhibiting double-digit pro-Republican efficiency gaps even if Democrats reached 56% of the statewide vote (or five points better than their 2012 showing). JSA165a; SA360. Professor Mayer also considered incumbency, and concluded that even in the event of the largest Democratic wave in a generation, Democrats would still win only forty-five Assembly seats. JSA152a; SA310.8 Thus, as the district

8 Appellants criticize Professor Mayer for considering incumbency one paragraph after attacking Professor Gaddie for not taking incumbency into account. App. Br. 57-59. No matter how they

17 court noted, “[t]here was consensus among the experts”—for both sides—about the persistence of Act 43’s skew under different electoral conditions. JSA149a n.255.

III. No Neutral Justification Exists for Act 43’s Large and Durable Partisan Asymmetry.

The district court further found that Act 43’s large and durable partisan asymmetry could not be justified by Wisconsin’s political geography or by any efforts to comply with traditional districting criteria. These factors “simply do[] not explain adequately the sizeable disparate effect seen in 2012 and 2014.” JSA180a. This finding is backed, first, by Wisconsin’s Assembly plans in previous decades. All of these maps exhibited much smaller partisan biases and efficiency gaps than Act 43. SA347. They did so, moreover, while splitting significantly fewer counties than Act 43, pairing fewer incumbents, not violating the Voting Rights Act, and performing equally well in terms of contiguity, compactness, municipality splits, and compliance with the one person, one vote requirement. JA216.

Second, as the district court emphasized, Act 43’s own authors “produced several statewide draft plans that performed satisfactorily on legitimate redistricting criteria without attaining the drastic partisan advantage demonstrated . . . in Act 43.” JSA218a. One draft, for example, forecast only three more Republican seats than the 2000s map—compared to the ten of the “Final Map.” JSA207a-208a. This map, and others like it in the record,

treated incumbency, all of the experts reached the same conclusion about the durability of Act 43’s skew.

18 demonstrate that Wisconsin’s current political geography is perfectly compatible with far more symmetric plans.

And third, as the district court also stressed, Professor Mayer’s demonstration plan showed that “it is very possible to draw a map with much less of a partisan bent than Act 43 and, therefore, that Act 43’s large partisan effect is not due to Wisconsin’s natural political geography.” JSA217a. The demonstration plan matched or exceeded Act 43 on every federal and state criterion. It had a total population deviation below 1%, the same number of majority-minority districts, somewhat more compact districts, and somewhat fewer political subdivision splits. JSA212a. The demonstration plan’s efficiency gap, however, was fully ten percentage points lower than that of Act 43. Id.9

Appellants do not challenge these findings (or any others) as clearly erroneous. Nevertheless, they claim that Wisconsin’s political geography inherently favors Republicans based on an article by Professors Jowei Chen and Jonathan Rodden. App. Br. 50-51. The article Appellants cite, however, does not address Wisconsin at all. In subsequent studies, moreover, Professors Chen and Rodden did analyze Wisconsin’s political geography, 9 Appellants recycle complaints about the demonstration plan that the district court rejected. App. Br. 65-66. In particular, while it is true that if incumbency is ignored, Republicans would pick up several seats if the statewide vote shifted in their direction, “had the opposite happened, and Democrats received a higher vote share . . . the EG would have skewed toward the Democrats.” JSA213a. “This is because the Demonstration Plan was designed to have competitive districts, and the EG will be reactive to such districts.” JSA213a-214a.

19 and found that it does not sizably advantage either party. Using his simulation technique, Professor Chen created two hundred separate Wisconsin Assembly plans without consulting any electoral data. Every one of these maps featured more compact districts than Act 43 and split fewer political subdivisions. Every one also exhibited a much smaller efficiency gap, thus refuting any claim that Wisconsin voters’ spatial patterns are responsible for Act 43’s skew. Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting, 16 Election L.J. (forthcoming 2017) (manuscript at 12), http://www.umich.edu/~jowei/Political_Geography_Wisconsin_Redistricting.pdf.

Professor Rodden, in turn, directly studied how Democrats and Republicans are distributed in Wisconsin. He concluded that, if anything, Democrats enjoy a modest spatial advantage in redistricting for the Assembly. This is because they are “dispersed relatively efficiently across medium-size cities,” including “old industrial towns like Appleton, Neenah, Oshkosh, and Green Bay.” Nicholas Eubank & Jonathan Rodden, Who Is My Neighbor? The Spatial Efficiency of Partisanship 2, 14 (Aug. 23, 2017), https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3025082.

IV. The District Court Invalidated Act 43 After Extensive Discovery and a Four-Day Trial.

Appellees—a group of registered voters in Wisconsin who support the Democratic Party and its candidates—filed their complaint challenging Act 43 as an unconstitutional partisan gerrymander under the First and Fourteenth Amendments in July 2015. JA25-65. The district court unanimously denied Appellants’

20 motion to dismiss. The court observed that members of this Court “have pointed to partisan symmetry as a theory with promise.” JA100. The court also explained that the efficiency gap does not require proportional representation because “an election’s results may have a small efficiency gap without being proportional or they may be proportional and still have a large efficiency gap.” JA99. The court further rebuked Appellants for their “mischaracterizations of plaintiffs’ proposed standard” and for “ignor[ing] step one and step three of plaintiff’s standard.” JA101-02.

Extensive discovery yielded a record of unprecedented scope. This record included, for the first time, (1) mapmakers’ own analyses of their drafts’ implications, (2) asymmetry scores for hundreds of plans over five redistricting cycles, (3) extensive sensitivity testing; and (4) several sets of alternative maps. Because of this evidence, the district court found that “[t]he record here is not plagued by the infirmities that have precluded the Court,” in Bandemer, Vieth, and LULAC, “from concluding that a discriminatory effect has been established.” JSA155a.

At the close of discovery, the district court unanimously denied Appellants’ motion for summary judgment. The court held that there remained contested factual issues with respect to each of the three prongs of Appellees’ test. The court also noted “the need ‘to define clear, manageable, and politically neutral standards for measuring [burdens] on representational rights,’” adding, “[t]his is exactly what plaintiffs are attempting to do with the efficiency gap.” JA129 (citation omitted).

21 The court further confirmed that “plaintiffs’ test does not require proportional representation.” JA130.

Over a four-day trial, Appellees presented evidence (summarized above) about each of their test’s three prongs. In November 2016, the district court adopted this test and ruled that, under it, Act 43 is unconstitutional. In January 2017, the district court enjoined further use of Act 43 and set a November 1, 2017 deadline for the enactment of a contingent remedial plan. JSA323a. Appellants appealed in February 2017. JSA334a. In June 2017, this Court agreed to hear the case, while staying any remedial proceedings pending the Court’s decision.

V. Partisan Gerrymandering Has Become More Extreme, More Persistent, and More Impactful.

Appellants begin their brief with a selective history of gerrymandering in the eighteenth and nineteenth centuries, apparently seeking to establish its historical pedigree. App. Br. 5-12. But malapportionment, racial vote dilution, and outright disenfranchisement have similar historical pedigrees and are no more constitutional. Nor does Appellants’ history undermine the conventional understanding of strange district shape (and other violations of traditional districting principles): that they are techniques that are sometimes used to implement partisan gerrymanders. That gerrymandering is not simply creating odd borders is confirmed by Elmer Griffith, the author on whom Appellants primarily rely. He writes that gerrymandering is “accomplished by forming into a few districts territory where the vote is overwhelmingly in

22 favor of the opposition; and on the other hand by spreading out the dominant party’s vote so as to carry the remaining districts by a safe but small margin.” Elmer C. Griffith, The Rise and Development of the Gerrymander 21 (1907). This passage is a pithy explanation of cracking and packing—the techniques at the heart of this case.

Appellants’ history also omits more recent developments, which are alarming. Analyzing district plans from 1972 onward, Professor Jackman showed at trial that partisan gerrymandering has surged to unprecedented levels of severity. At both the state legislative and congressional levels, the plans now in effect have exhibited the worst asymmetries in modern times. SA227; see Benisek, supra, slip op. at 27 (Niemeyer, J., dissenting) (“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy.”); Anthony J. McGann et al., Gerrymandering in America 4-5, 97-98 (2016). Professor Jackman also determined that gerrymanders’ persistence has increased markedly. In previous periods, a plan’s initial asymmetry was only a moderately strong predictor of its future performance. SA241. But in the present decade, plans that have begun skewed have typically continued to tilt in the same party’s direction as long as they have been in use. SA317-318.

There are two clear explanations for these troubling trends. One is that “[t]echnological advances have allowed gerrymanderers to gain better information about voters . . . and draw boundaries with a finer pen.”

23 John N. Friedman & Richard T. Holden, Optimal Gerrymandering, 98 Am. Econ. Rev. 113, 135 (2008). These advances include individual-level data from enhanced voter files, automated redistricting algorithms, and rigorous sensitivity testing. The other driver is voters’ rising partisanship. Split-ticket voting is rarer now than in earlier eras, and voters change their party preferences less from year to year. See, e.g., Corwin D. Smidt, Polarization and the Decline of the American Floating Voter, 61 Am. J. Pol. Sci. 365 (2017).

As voters have become more partisan, legislators have grown more polarized. Both in state legislatures and in Congress, there is now virtually no ideological overlap between Democratic and Republican legislators. See, e.g., Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures, 105 Am. Pol. Sci. Rev. 530, 540 (2011). Extreme polarization exacerbates the effects of partisan gerrymandering. It means the Democrats or Republicans elected due to the practice are not “wishy-washy” moderates, but rather “hardcore” ideologues who render the legislature non-responsive to voters’ wishes. Vieth, 541 U.S. at 288 n.9 (plurality opinion). As one recent study shows, an efficiency gap in a party’s favor causes both the legislature’s ideological midpoint and the state’s enacted laws to become significantly more extreme, even holding voters’ preferences constant. Just by drawing clever lines—without persuading a single voter—a party thus pulls policy outcomes toward its preferred pole. See Devin Caughey et al., Partisan Gerrymandering and the Political Process, 16 Election L.J. (forthcoming 2017) (manuscript at 17-23), http://cwarshaw.scripts.mit.edu/ papers/CTW_efficiency_gap_170515.pdf.

24 SUMMARY OF ARGUMENT

1. Appellees have standing to bring their statewide claim. As a matter of precedent, every partisan gerrymandering challenge this Court has heard has been statewide in nature. Yet the Court has never suggested that it lacked jurisdiction due to the plaintiffs’ lack of standing. More generally, standing “turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500 (1975). The “claim asserted” here is unquestionably statewide: the intentional, severe, durable, and unjustified dilution of Democratic votes throughout Wisconsin. It follows that if this claim is justiciable, Appellees have standing to pursue it.

The Court’s racial gerrymandering cases are not to the contrary. Crucially, the “claim asserted” in these cases is district-specific: that “race was improperly used in the drawing of the boundaries of one or more specific electoral districts.” Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015). Since this claim is limited to the design of particular districts, only these districts’ residents have standing to bring it. The racial gerrymandering cases are also inapposite here because they involve the injury of racial classification. The harms alleged in this case, in contrast, are the completely different ones of vote dilution and viewpoint discrimination.

2. Partisan gerrymandering claims are justiciable under the district court’s discernible and manageable test. As to discernibility, the test captures the constitutional wrongs of partisan gerrymandering. Gerrymandering violates both the Equal Protection Clause, by diluting the electoral influence of a targeted

25 group of voters, and the First Amendment, by penalizing these voters because of their political beliefs. The test accurately addresses these violations. A district plan that fails the test is deliberately, highly, persistently, and unjustifiably dilutive. Such a map also seeks to—and does—subject certain voters to disfavored treatment due to their political philosophy.

The district court’s test is also discernible because it is based on the concept of partisan symmetry. Partisan symmetry is a “comprehensive and neutral principle[] for drawing electoral boundaries.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment). It is a “comprehensive” principle because it can be applied to any district plan. It is “neutral” as well because its very point is to treat the parties symmetrically in terms of the conversion of votes to seats. Partisan symmetry further corresponds to the Court’s conception of gerrymandering and is distinct from proportional representation.

The district court’s test is discernible as well because all of its elements are rooted in the Court’s partisan gerrymandering case law, which establishes that any gerrymandering standard should require showings of discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification. The test does just that.

The district court’s test is judicially manageable too. Its intent and justification prongs have already been employed—without any apparent difficulty—in other redistricting contexts. Likewise, its effect prong is easy to administer because the size and durability of a plan’s partisan asymmetry can be ascertained using reliable

26 social scientific techniques. As noted above, all asymmetry metrics tend to converge in competitive statewide environments like Wisconsin’s. None of these metrics’ scores—in Wisconsin or in any other state over nearly half a century—were disputed by Appellants. And there is widespread agreement that sensitivity testing is the appropriate method for evaluating the persistence of a plan’s skew.

The district court’s test is also workable because it reflects contemporary political realities. Both in Wisconsin and nationwide, party affiliation is the most potent driver of voter and legislator behavior. By examining the ballots cast for, and seats won by, each party’s candidates, the test focuses on the key aspects of modern voting and representation.

The district court’s test is “limited and precise” as well, in that its implications are confined to both parties’ most egregious gerrymanders. Vieth, 541 U.S. at 306-07 (Kennedy, J., concurring in the judgment). The test’s impact can be estimated by tallying the number of highly asymmetric plans designed by a single party in recent decades. This number is small, and pales compared to the vast volume of redistricting litigation over other claims. The number also includes roughly equal shares of pro-Democratic and pro-Republican maps, thus dispelling any fear that the test is a stalking horse for partisan interests.

Nor is it difficult for jurisdictions to avoid liability under the district court’s approach. A state may ensure that its plan is not severely and durably asymmetric by using the same data and analyses as Act 43’s drafters—except to limit partisan unfairness rather than to

27 augment it. A state may also eliminate any possibility of discriminatory intent being found by adopting a bipartisan or nonpartisan redistricting process. And if a state learns that its political geography or its valid redistricting goals impel a significant asymmetry, it is not placed in an impossible position. Rather, it is insulated from liability because the asymmetry is then justified.

3. The Court should adhere to its holding in Vieth that noncompliance with traditional districting criteria is not an element of a partisan gerrymandering claim. As the plurality explained (and Justice Kennedy agreed), “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.” Id. at 298 (plurality opinion). Gerrymanders, that is, may exist even when they do not announce themselves with strange shapes or carved communities.

4. The Court should reject Appellants’ request for a remand on the issue of entrenchment. This issue was not sprung on Appellants after trial. Rather, from the very beginning of the case, both Appellees and the district court made clear their emphasis on the durability of a party’s advantage.

28 ARGUMENT

I. Appellees Have Standing to Bring Their Statewide Claim.

Despite effectively conceding that severe gerrymanders violate the Constitution, Appellants assert that no one has standing to seek redress for that constitutional harm. This claim is at war with the Court’s precedent. In every partisan gerrymandering case the Court has heard, the plaintiffs’ challenge was statewide in nature. See LULAC, 548 U.S. at 416 (opinion of Kennedy, J.); Vieth, 541 U.S. at 285-87 (plurality opinion); Bandemer, 478 U.S. at 127 (plurality opinion). Yet in none of these cases did a majority (or a plurality) of the Court hold (or hint) that the voters bringing the action did not have standing for this reason. To the contrary, six Justices in Bandemer agreed that “unconstitutional vote dilution” may be “alleged in the form of statewide political gerrymandering.” 478 U.S. at 132 (plurality opinion). In his controlling concurrence in Vieth, Justice Kennedy also repeatedly contemplated partisan gerrymandering claims proceeding on a statewide basis. See 541 U.S. at 312, 316 (Kennedy, J., concurring in the judgment). And in LULAC, five Justices left the door open to a test based on the inherently statewide concept of partisan symmetry. See, e.g., 548 U.S. at 420 (opinion of Kennedy, J.).

Even if it were not precluded by precedent, Appellants’ position would conflict with the precept that standing “turns on the nature and source of the claim asserted.” Warth, 422 U.S. at 500. Standing, that is, must be congruent with the kind of legal theory that is being advanced. This rule is followed fastidiously in each

29 redistricting domain. In a one person, one vote case, for example, the claim is that districts throughout a state have been malapportioned, thus overrepresenting certain voters and underrepresenting others. See Reynolds, 377 U.S. at 560. Accordingly, “any underrepresented plaintiff may challenge in its entirety the redistricting plan that generated his harm.” Larios v. Perdue, 306 F. Supp. 2d 1190, 1209 (N.D. Ga. 2003); see also Evenwel v. Abbott, 136 S. Ct. 1120, 1131 n.12 (2016) (“[S]tanding . . . has rested on plaintiffs’ status as voters whose votes were diluted.”).

In a racial vote dilution case under Section 2 of the Voting Rights Act, on the other hand, the claim is typically regional: that minority voters in a specific portion of a state have been denied an equal opportunity to elect the representatives of their choice. See Shaw v. Hunt, 517 U.S. 899, 917 (1996) (Shaw II) (noting that “a § 2 violation is proved for a particular area”). Therefore only minority voters who “reside in a[n] . . . area that could support additional [majority-minority districts]” have standing to sue. Pope v. Cty. of Albany, No. 11-cv-0736, 2014 WL 316703, at *5 (N.D.N.Y. Jan. 28, 2014).

Under the logic of these cases, the dispositive question for standing purposes is whether Appellees’ claim is statewide in nature. If it is, then Appellees have standing to pursue it on a statewide basis. Any other result would drive an impermissible wedge between “the nature and source of the claim asserted,” Warth, 422 U.S. at 500, and the scope of Appellees’ standing. There is no doubt, of course, that Appellees’ theory applies statewide. The theory is that Act 43 intentionally, severely, durably, and unjustifiably dilutes Democratic

30 votes throughout Wisconsin. This theory may or may not be “judicially discoverable and manageable,” Baker v. Carr, 369 U.S. 186, 217 (1962), but it cannot be justiciable yet incapable of being advanced statewide.

Appellants resist this conclusion by invoking the Court’s racial gerrymandering cases. App. Br. 28-30. But as the district court correctly held, “[t]he rationale and holding of [these cases] have no application here.” JSA224a. Unlike Appellees’ theory, the claim in a racial gerrymandering challenge is clearly district-specific: “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 916 (1995). That is why only residents of the allegedly racially gerrymandered district have standing; only they “suffer the special representational harms racial classifications can cause in the voting context.” United States v. Hays, 515 U.S. 737, 745 (1995). Racial gerrymandering also involves the injury of voters being classified by race. In contrast, partisan gerrymandering entails the completely different harms of voters being subjected to vote dilution and viewpoint discrimination. See Shaw v. Reno, 509 U.S. 630, 649-50 (1993) (Shaw I) (“Classifying citizens by race . . . threatens . . . harms that are not present in our vote-dilution cases.”).

Recognition of standing to bring statewide partisan gerrymandering claims would not create any kind of “loophole” in racial gerrymandering doctrine. App. Br. 29-30. In fact, a viable partisan gerrymandering claim would improve that body of law by reducing litigants’ incentive to disguise their partisan grievances as racial

31 ones. As members of the Court have recently recognized, this incentive is very real. If a plaintiff can cause a court to “mistake[] a political gerrymander for a racial gerrymander,” then the racial gerrymandering suit is “transformed into [a] weapon[] of political warfare.” Cooper v. Harris, 137 S. Ct. 1455, 1490 (2017) (Alito, J., concurring in the judgment in part and dissenting in part). Such subterfuge would become less common if plaintiffs could simply bring partisan gerrymandering claims. They might win or they might lose these suits—but they would stop injecting partisanship into a doctrine where it does not belong.

Appellants reveal their impoverished understanding of voters’ interests when they contend that voters suffer a concrete harm only when their preferred candidates do not prevail in their own districts. App. Br. 30-32. Voters do have an interest in their district-level representation. But as the district court rightly held, they also have an interest in their collective representation in the legislature—in their ability as a group “to translate their votes into seats as effectively” as the other party’s supporters, JSA221a, and thus to have the same opportunity to influence the legislature’s composition and policymaking. Echoing Reynolds, Justice Kennedy has referred to this interest as voters’ “right[] to fair and effective representation.” Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judgment). Equivalently, the Vieth plurality called it the “degree of representation or influence to which a political group is constitutionally entitled.” Id. at 297 (plurality opinion).

Notably, if this interest did not exist, then neither would the Court’s one person, one vote or racial vote

32 dilution doctrines. After all, it is perfectly possible for a voter to elect her preferred candidate, in her own district, and for this district to be overpopulated. The cause of action for malapportionment presupposes that a voter also values “hav[ing] an equally effective voice in the election” of the legislature as a whole. Reynolds, 377 U.S. at 565. Likewise, on Appellants’ account, a minority voter in a “packed” district—who already elects the candidate of her choice—should not be able to bring a Section 2 claim. But the Court has always held that all minority residents in a given region may sue, because they all incur the “[d]ilution of racial minority group voting strength.” Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986).10

II. Partisan Gerrymandering Claims Are Justiciable Under the District Court’s Test.

Not only do Appellees have standing to allege a statewide partisan gerrymandering claim, but the claim itself is justiciable. Justiciability has two components: whether there is a standard for adjudicating the claim that is “judicially discernible in the sense of being relevant to some constitutional violation,” Vieth, 541 U.S. at 288 (plurality opinion), and whether the standard is “judicially manageable” in that it would produce outcomes that are “principled, rational, and based upon

10 As for Appellants’ argument about interstate congressional dynamics, App. Br. 30-31, it has already been rejected in other redistricting contexts. One person, one vote plaintiffs cannot complain about interstate malapportionment, nor can Section 2 plaintiffs allege racial vote dilution on a national scale.

33 reasoned distinctions,” id. at 278. The district court’s test is both.

As noted above, a court must find discriminatory intent, a large and durable discriminatory effect, and a lack of any legitimate justification in order to invalidate a plan under the test. JSA109a-110a. Discriminatory intent may be proven by evidence, direct or circumstantial, about the motives of those who designed a map and passed it into law. JSA126a-140a. Next, the magnitude of a plan’s discriminatory effect may be established through election results as well as measures of partisan asymmetry like partisan bias and the efficiency gap. JSA176a. The persistence of a plan’s skew, in turn, may be shown through the sensitivity testing that both sides’ experts endorsed. JSA149a n.255. Lastly, whether a plan’s tilt is justified may be addressed through alternative district maps, including ones used in earlier periods, ones crafted by the drafters themselves, ones offered by the plaintiffs, and ones generated through computer simulations. JSA203a-218a.

A. The District Court’s Test Is Judicially Discernible.

The district court’s test is discernible for three reasons. It (1) captures the constitutional harms inflicted by partisan gerrymandering; (2) is based on the “comprehensive and neutral principle” of partisan symmetry; and (3) incorporates elements that are rooted in the Court’s gerrymandering case law.

34 1. The Test Captures the Constitutional

Harms Inflicted by Partisan Gerrymandering.

Partisan gerrymandering inflicts (at least) two kinds of constitutional injuries. One of these, cognizable under the Equal Protection Clause, is the deliberate dilution of a group of voters’ electoral influence, yielding a legislature that is not responsive to their concerns. The other, arising under the First Amendment, is viewpoint discrimination against certain voters, penalizing them because of the political beliefs they espouse. The district court’s test captures both of these harms.

The Court has historically conceived of partisan gerrymandering as causing the equal protection injury of intentional vote dilution. In Bandemer, the plurality stated that “unconstitutional discrimination occurs” when a district plan “degrade[s] . . . a group of voters’ influence on the political process.” 478 U.S. at 132 (plurality opinion). In Vieth, Justice Kennedy confirmed that one constitutional problem with gerrymandering is “the particular burden a given partisan classification imposes on representational rights.” 541 U.S. at 308 (Kennedy, J., concurring in the judgment); see also LULAC, 548 U.S. at 418 (opinion of Kennedy, J.) (requiring “a burden . . . on the complainants’ representational rights”). Other Justices have also observed that gerrymandering dilutes the votes of targeted voters, thus making it more difficult for them to elect their preferred candidates. See, e.g., Vieth, 541 U.S. at 298 (plurality opinion) (characterizing gerrymandering as “intentional vote dilution”); id. at 354

35 (Souter, J., dissenting) (“gerrymandering is . . . a species of vote dilution”).

As the Court has recognized, the reason vote dilution is so invidious is that it results in representation that is not responsive to voters’ needs and interests. “Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” Reynolds, 377 U.S. at 565; see also, e.g., McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring in the judgment in part and dissenting in part) (“Democracy is premised on responsiveness.”). But when a gerrymander dilutes the votes of certain voters, their voices are not heard in the legislature, and the legislature does not accommodate their views. Elected officials become “unresponsive and insensitive to [these voters’] needs,” Rogers v. Lodge, 458 U.S. 613, 625 (1982), thus “freez[ing] the political status quo,” Jenness v. Fortson, 403 U.S. 431, 438 (1971).

The district court’s test reflects these precepts. Partisan asymmetry—the concept at the core of the test’s effect prong—is a measure of vote dilution. It indicates whether certain voters are less able to convert their ballots into representation, and thus whether they suffer a “burden on [their] representational rights.” Vieth, 541 U.S. at 308 (Kennedy, J., concurring in the judgment). When all three of the test’s prongs are satisfied, not only is there vote dilution, but it is deliberate, extreme, persistent, and unjustified. These are exactly the circumstances where the Court has indicated there should be liability.

36 Beyond diluting votes, partisan gerrymandering

offends First Amendment values by “penalizing citizens because of . . . their association with a political party, or their expression of political views.” Id. at 314. That the government may not “punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys” is “a fundamental principle of the First Amendment.” Matal v. Tam, 137 S. Ct. 1744, 1765 (2017) (Kennedy, J., concurring in part and concurring in the judgment). This rule applies even if the governmental retaliation does not directly burden speech; such action nevertheless “inhibits protected speech and association.” Elrod v. Burns, 427 U.S. 347, 359 (1976) (plurality opinion) (emphasis added). And the reason for the rule is that when the government injures voters on political grounds, it engages in viewpoint discrimination—an “egregious form of content discrimination” that is “‘presumptively unconstitutional.’” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995) (citation omitted).

Again, the district court’s test dovetails with this well-established doctrine. Indeed, a law that fails the test is a classic case of forbidden governmental retaliation. Such a law seeks to harm one party’s voters because of their political views. In fact, the law’s authors typically scrutinize those views (in the form of election results) while crafting their map, hoping to prevent the targeted party’s voters from effectively translating their ballots into seats. Such a law also achieves its intended goal. The targeted party’s voters are, in fact, impaired in their ability to influence the political process, solely because of the political philosophy they espouse.

37 2. The Test Is Based on the “Comprehensive

and Neutral Principle” of Partisan Symmetry.

The district court’s test is also discernible because it is based in part on the concept of partisan symmetry. Partisan symmetry attracted the attention of five Justices in LULAC; it is a “comprehensive and neutral principle” for designing and evaluating plans; and it is entirely distinct from proportional representation.

The social scientific tenet that maps should treat parties symmetrically—by enabling them to translate their popular support into legislative representation with approximately equal ease—was first presented to the Court in LULAC. A majority of the Justices expressed interest in the idea. See 548 U.S. at 420 (opinion of Kennedy, J.) (not “discounting its utility in redistricting planning and litigation”); id. at 468 n.9 (Stevens, J., concurring in part and dissenting in part) (labeling it a “helpful (though certainly not talismanic) tool”); id. at 483-84 (Souter, J., concurring in part and dissenting in part) (noting “the utility of a criterion of symmetry as a test”); id. at 492 (Breyer, J., concurring in part and dissenting in part). This array of favorable comments led the district court to observe that “the justices have pointed to partisan symmetry as a theory with promise,” JA100, and to incorporate measures of asymmetry into its test’s effect prong, JSA159a-177a.

Appellants incorrectly contend that LULAC rejected partisan symmetry. App. Br. 43-44. While Justice Kennedy “conclude[d] asymmetry alone is not a reliable measure of unconstitutional partisanship,” id. at 420 (opinion of Kennedy, J.) (emphasis added), he plainly

38 did not rule out tests that rely on it in part. That is why Justice Stevens “appreciate[d] Justice Kennedy’s leaving the door open to the use of the standard in future cases.” 548 U.S. at 468 n.9 (Stevens, J., concurring in part and dissenting in part). That is also why Justice Souter remarked that “[i]nterest in exploring this notion is evident.” Id. at 483 (Souter, J., concurring in part and dissenting in part).

Beyond its doctrinal support, partisan symmetry is a “comprehensive and neutral principle[] for drawing electoral boundaries”—a “substantive definition of fairness in districting [that] command[s] general assent.” Vieth, 541 U.S. at 306-07 (Kennedy, J., concurring in the judgment). Partisan symmetry is “comprehensive” because it can be calculated for any district plan. Indeed, Appellees’ expert did compute it for almost every state house map from 1972 onward. SA212-216. Partisan symmetry is also “neutral” in that its very definition is the symmetric treatment of voters no matter which party they support. A symmetric plan is inherently a neutral one that gives each party’s backers the same opportunity to convert their ballots into representation.

Partisan symmetry further enjoys “general assent” in that it corresponds to the Court’s definitions of partisan gerrymandering. In Vieth, for instance, the plurality conceived of the practice as “giv[ing] one political party an unfair advantage by diluting the opposition’s voting strength.” 541 U.S. at 271 n.1 (plurality opinion). This is another way of saying that a gerrymander asymmetrically impairs the opposition’s ability to translate its voting strength into legislative

39 seats. In Arizona State Legislature, similarly, the Court described partisan gerrymandering as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” 135 S. Ct. at 2658. Gerrymandering, in other words, is the durably asymmetric treatment of the parties’ respective devotees. See also Bandemer, 478 U.S. at 132 (plurality opinion) (a gerrymander asymmetrically “degrade[s] . . . a group of voters’ influence on the political process”).

Contrary to Appellants’ arguments, partisan symmetry has nothing in common with proportional representation—a goal the Court has repeatedly (and rightly) rejected as a constitutional requirement. See, e.g., LULAC, 548 U.S. at 419 (opinion of Kennedy, J.); Vieth, 541 U.S. at 288 (plurality opinion). Proportional representation is not a catch-all label for every analysis that relies in some way on statewide seat and vote shares. If it were, the Court would not have cited these statewide statistics over and over in its partisan gerrymandering cases. See, e.g., LULAC, 548 U.S. at 411-13 (opinion of Kennedy, J.); Vieth, 541 U.S. at 289 (plurality opinion); Bandemer, 478 U.S. at 134 (plurality opinion). Rather, proportional representation has a specific, universally accepted definition: a share of legislative seats that is equal to a party’s share of the jurisdiction-wide vote. As the Court has explained, proportional representation means that a party “win[s] the number of seats that mirrors the proportion of its vote.” Vieth, 541 U.S. at 291 (plurality opinion) (emphasis added).

Properly defined, proportional representation is unrelated to any measure of partisan asymmetry.

40 Consider partisan bias: If a party receives 55% of the vote and 60% of the seats, a plan’s bias is zero if the other party would also win 60% of the seats if it garnered 55% of the vote. See Grofman & King, supra, at 8-9. Likewise, as the district court found, “the [efficiency gap] does not impermissibly require that each party receive a share of the seats in proportion to its vote share.” JSA168a-169a. This is because “the efficiency gap is about comparing the wasted votes of each party, not determining whether the party’s percentage of the statewide vote share is reflected in the number of representatives that party elects.” JA99.

The district court used a simple example to prove the point. Take a ten-district map where “‘Party A wins two districts by a margin of 80 to 20 and four districts by a margin of 70 to 30,’” and “‘Party B wins four districts by a margin of 60 to 40.’” JA99 n.1 (citation omitted). “‘Then there is perfectly proportional representation’” because Party A receives 60% of the vote (600/1000) and 60% of the seats (6/10). Id. “‘But the efficiency gap here is not zero’” because votes for Party A are wasted at a rate ten percentage points higher than votes for Party B (30% versus 20%). Id. (emphasis added).

Unable to challenge the district court’s findings as clearly erroneous,11 Appellants instead assert that the efficiency gap requires “hyperproportionality.” App. Br. 49-50. It is true that when a map has a low efficiency gap, a party’s seat share tends to change at roughly double the rate of its vote share. JSA162a. But this is a feature 11 Indeed, Appellants conceded below that “the efficiency gap does not call for one-for-one proportional representation.” Dkt. 46:47; JA130.

41 of the efficiency gap, not a bug. Members of the Court have often acknowledged that single-member-district systems produce a “‘seat bonus’ in which a party that wins a majority of the vote generally wins an even larger majority of the seats.” LULAC, 548 U.S. at 464 (Stevens, J., concurring in part and dissenting in part); see also Vieth, 541 U.S. at 357 (Breyer, J., dissenting); Bandemer, 478 U.S. at 159 (O’Connor, J., concurring in the judgment). The seat bonus implied by the efficiency gap—approximately a twofold rise in seat share for an increase in vote share—is exactly the seat bonus that American elections have exhibited for generations. JSA162a, 170a. The efficiency gap is thus deeply grounded in historical practice, and captures a plan’s deviation from the historical norm. When used as part of the analysis, it can provide “helpful historical guidance” to courts and mapmakers alike. Vieth, 541 U.S. at 309 (Kennedy, J., concurring in the judgment).12

3. The Test Is Rooted in the Court’s Partisan Gerrymandering Case Law.

The district court’s test is discernible as well because all of its elements are rooted in the Court’s partisan

12 As for the “technical defects” alleged by Appellants, App. Br. 51-52, they were already presented to, and rejected by, the district court in findings that are not clearly erroneous. For instance, the court pointed out that if a plan sought to enhance electoral competitiveness, then “[i]t would be difficult to establish that drafters . . . had the requisite partisan intent to show a constitutional violation.” JSA175a. Similarly, the court relied on extensive expert analysis—including sensitivity testing and a comparison of plans’ initial and lifetime average efficiency gaps—to conclude that a large efficiency gap is a durable plan characteristic. JSA163a-164a.

42 gerrymandering case law. Its intent prong, first, reflects the basic First and Fourteenth Amendment principle that “plaintiffs [are] required to prove . . . intentional discrimination against an identifiable political group.” Bandemer, 478 U.S. at 127 (plurality opinion). Thus, under the prong, “political classifications” that assign voters to districts on electoral grounds are not inherently problematic, but become so when “applied in an invidious manner.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment).

Second, the district court’s requirement of a large discriminatory effect is consistent with the Court’s guidance that “more than a de minimis effect” is necessary before liability may be imposed. Bandemer, 478 U.S. at 134 (plurality opinion). By not disrupting plans with small partisan asymmetries, the “analysis allows a pragmatic or functional assessment that accords some latitude to the States.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring in the judgment).

Third, by further restricting liability to plans with durable discriminatory effects, the district court heeded Justices’ comments about the special harms of partisan entrenchment. Maps that “entrench[] a party on the verge of minority status” subvert the will of the electorate for an entire redistricting cycle. LULAC, 548 U.S. at 419 (opinion of Kennedy, J.). They ensure that partisan asymmetries “will remain constant notwithstanding significant . . . shifts in public opinion.” Id. at 472 (Stevens, J., concurring in part and dissenting in part).

Appellants claim that Vieth barred any consideration of the durability of a party’s advantage, App. Br. 54-56,

43 but it did no such thing. Rather, it rejected the Bandemer plurality’s standard, under which “plaintiffs [had] to show even that their efforts to deliberate, register, and vote had been impeded.” Vieth, 541 U.S. at 345 (Souter, J., dissenting). This sort of participatory exclusion is plainly unrelated to the persistence of a plan’s partisan skew. Vieth also declined to adopt Justice Breyer’s proposed test focusing on “minority entrenchment.” Id. at 360 (Breyer, J., dissenting) (emphasis added). But again, minority control of the legislature is distinct from a durable tilt in favor of the gerrymandering party (be it a majority or a minority).13

Lastly, the district court’s justification prong echoes Justices’ remarks that maps should not be struck down if their partisan imbalances can be explained by neutral factors. “[P]olitical classifications” based on electoral data are constitutionally troublesome only if applied “in a way unrelated to any legitimate legislative objective.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). When a jurisdiction can justify its plan’s discriminatory effect “by reference to objectives other than naked partisan advantage,” judicial intervention is unwarranted. Id. at 351 (Souter, J., dissenting).

13 The district court’s finding of a durable pro-Republican advantage also distinguishes this case from Bandemer, where “had the Democratic candidates received an additional few percentage points of the votes cast statewide, they would have obtained a majority of the seats.” 478 U.S. at 135 (plurality opinion).

44 B. The District Court’s Test Is Judicially

Manageable.

Manageability is the other side of the justiciability coin. The district court’s test is manageable because (1) its intent and justification prongs have already been used successfully; (2) its effect prong is easy to administer due to its reliance on established metrics and methods; (3) the test reflects political realities; (4) the test’s implications are neutral and limited; and (5) compliance with the test is straightforward.

1. The Test’s Intent and Justification Prongs Have Already Been Used Successfully.

Appellants do not dispute that the district court’s intent prong is judicially workable. App. Br. 20. And for good reason. Over a series of partisan gerrymandering and malapportionment cases, the Court has shown that it is quite capable of distinguishing between plans “intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation,” JSA109a-110a, and maps drawn without this aim. The Bandemer plurality, for example, was “confident that . . . th[e] record would support a finding that the discrimination was intentional” where voluminous material “evidenced an intentional effort . . . to disadvantage Democratic voters.” 478 U.S. at 116, 127 (plurality opinion). In LULAC, similarly, Justice Kennedy had little trouble concluding that “[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority.” 548 U.S. at 417 (opinion of Kennedy, J.).

45 Conversely, in Gaffney v. Cummings, 412 U.S. 735

(1973), the Court properly rejected a claim that state legislative maps were “invidiously discriminatory” where the maps were designed by “a three-man bipartisan Board” that “followed a policy of ‘political fairness.’” Id. at 736, 738, 752. Likewise, in Harris v. Arizona Independent Redistricting Commission, 136 S. Ct. 1301 (2016), the Court unanimously rebuffed the argument that “illegitimate considerations were the predominant motivation” behind an Arizona state legislative plan crafted by an “independent redistricting commission” that made “‘good-faith efforts to comply with the Voting Rights Act.’” Id. at 1305, 1309 (citation omitted).

Appellants also wisely refrain from challenging the manageability of the district court’s justification prong. This prong is drawn verbatim from the Court’s one person, one vote cases—where for more than five decades it has enabled the Court to separate plans where large population deviations are justified by legitimate factors from maps where malapportionment cannot be properly explained. Compare, e.g., Brown v. Thomson, 462 U.S. 835, 844 (1983) (upholding a plan where “population deviations [were] no greater than necessary to preserve counties as representative districts”), and Mahan v. Howell, 410 U.S. 315, 323 (1973) (same), with Chapman v. Meier, 420 U.S. 1, 25 (1975) (invalidating a map where the state’s interests did not “prevent[] attaining a significantly lower population variance”), and Kilgarlin v. Hill, 386 U.S. 120, 124 (1967) (same).

46 2. The Test’s Effect Prong Is Easy to

Administer.

The district court’s effect prong is manageable too, because it relies on widely accepted metrics and methods, the results of which are rarely contested. Again, to satisfy this prong, a plaintiff must show that a plan has exhibited a partisan asymmetry that is both large and durable. As in this case, to establish the size of a map’s asymmetry, a plaintiff would likely provide evidence about the map’s partisan bias and efficiency gap. The plaintiff’s case would be bolstered if these measures both revealed a sizable asymmetry by historical standards. On the other hand, a court would rightly be skeptical if the metrics conflicted. Also as in this case, to demonstrate the persistence of a plan’s asymmetry, a plaintiff would likely subject the plan to sensitivity testing. To avoid dismissal, the testing would have to indicate that the map’s asymmetry would endure over a range of plausible electoral conditions.

Importantly, there is not an “unbounded variety of [asymmetry] metrics.” App. Br. 46. Rather, all of these measures resemble either partisan bias (because they focus on a counterfactual election) or the efficiency gap (because they are based on actual votes and seats won).14 That is why Appellees have highlighted these metrics throughout this litigation. Also importantly, there is virtually no disagreement over plans’ asymmetry scores. In this case, Appellees’ expert computed every well-known measure for almost every state house map from

14 The mean-median difference, for instance, is a mathematical function of partisan bias. See supra note 5.

47 1972 onward. SA212-216, 346. Not one of these scores was disputed. In fact, Appellants’ experts confirmed the calculations. Dkt. 150:94, 161-62, 210; see also Grofman & King, supra, at 16 (noting the “congruence among experts [calculating partisan bias] for opposing sides”).

This “consensus among the experts” extends to the study of durability. JSA149a n.255. Four separate experts—two for each side—conducted some kind of sensitivity testing in this litigation, adjusting election results and determining how each party would do given each modification. Id. All of these experts agreed that sensitivity testing is “the accepted method of testing how a particular map would fare under different electoral conditions.” Id. The experts also concurred that Act 43’s pro-Republican asymmetry is highly persistent. JSA135a, 152a, 165a.

Appellants mock the idea of incorporating social science into a test for gerrymandering, App. Br. 45-48, but the Court historically has not shared their aversion to empirical evidence. To the contrary, Justice Kennedy expressed optimism in Vieth that “new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.” 541 U.S. at 312-13 (Kennedy, J., concurring in the judgment). The tools Appellees have deployed in this litigation fulfill Justice Kennedy’s hope. Asymmetry metrics like partisan bias and the efficiency gap capture the representational burdens of gerrymanders relative to a benchmark of neutral treatment. Computer simulations of large numbers of alternative maps reveal how the challenged plan performs compared to other

48 lawful options. And sensitivity testing indicates how a map’s skew would change if the electoral environment shifted in either party’s favor.

Appellants also complain about the use of multiple metrics, App. Br. 45-48,15 but it has never been the Court’s approach to search for a single holy grail. Rather, in every other redistricting domain, the Court has employed a range of useful techniques. In the reapportionment context, for instance, the Court has variously cited plans’ total population deviation, see, e.g., White v. Regester, 412 U.S. 755, 761 (1973), average population deviation, see, e.g., Mahan, 410 U.S. at 319, and proportion of the population that could elect a legislative majority, see, e.g., Swann v. Adams, 385 U.S. 440, 442-43 (1967). Under Section 2, similarly, the Court has endorsed two procedures for calculating racial polarization—“extreme case analysis” and “bivariate ecological regression”—referring to them as “complementary methods of analysis” that are “standard in the literature.” Gingles, 478 U.S. at 52, 53 n.20. And in its racial gerrymandering cases, the Court has measured district noncompactness using both

15 Appellants fixate on an amicus brief in LULAC that introduced partisan bias to the Court. App. Br. 47-48. That is all the brief did; it did not mention any other asymmetry metric or say a word about discriminatory intent, durability, or justification. Appellants also wrongly claim that Appellees did not advocate the use of multiple metrics below. To the contrary, as Appellees explained in their trial brief, “[f]rom the beginning of this case, [Appellees] have argued that the Court may use . . . other measures instead of, or in addition to, the efficiency gap to assess plans’ partisan consequences.” Dkt. 134:26; see also, e.g., JA61; Dkt. 31:11; Dkt. 68:76; Dkt. 149:159-167, 190-197, 230-231.

49 geographic dispersion and perimeter irregularity. See Bush v. Vera, 517 U.S. 952, 973 (1996) (plurality opinion).

The Court’s openness to multiple metrics makes perfect sense. They do not “sow chaos,” App. Br. 46, but rather build judicial confidence in the facts the metrics seek to establish. Here, for example, it is highly probative information that Act 43 not only exhibits an enormous efficiency gap but also scores very poorly in terms of partisan bias—and, indeed, every other measure of partisan asymmetry. Without this information, one could not be as sure that Act 43 is an extreme outlier. This basic point, that more data improves judicial decision-making, has never been lost on the Court.

3. The Test Reflects Political Realities.

Asymmetry metrics are also valid because they correspond to the realities of modern American politics. In particular, by focusing on the votes cast for, and seats won by, each party’s candidates, the measures reflect the facts that (1) party affiliation is the dominant driver of voter behavior; (2) voter behavior is largely consistent from year to year; and (3) legislators are highly polarized along party lines. Evidence establishing these points at the national level was discussed above. See supra Statement Part V. The record leaves no doubt that they hold for Wisconsin as well.

The analyses of Professor Gaddie and Act 43’s own drafters demonstrate that party affiliation dwarfs all other influences on voting in Wisconsin. Professor Gaddie’s estimates of wards’ partisanship were based on Assembly election results, SA322, while the drafters’ composite scores were not, JSA126a. The measures

50 nevertheless exhibited a 96% correlation, indicating that Wisconsin voters behave almost identically in Assembly and non-Assembly races. Ex. 175. This finding was confirmed by Appellees’ expert, who determined that a model including the presidential vote explains about 99% of the variance in the Assembly vote. SA47.

Professor Gaddie also showed that Wisconsin voting patterns have been remarkably stable over time. He created a “giant correlation table” displaying how the results of every race from 2002 to 2010 were related to the results of every other race over this period. Dkt. 108:106. These links were uniformly strong. Id. Thus, as Professor Gaddie wrote in a memo to Act 43’s drafters, “the top-to-bottom party basis of the state politics” persisted over this period, with “the partisanship of Wisconsin . . . invading [even] the ostensibly non-partisan races on the ballot.” SA322.

The district court further found that because of Wisconsin’s strong caucus system, Assembly members are extremely polarized. There is “very little effort to woo colleagues from ‘across the aisle,’” JSA139a n.227, and “Republican legislators who win by slimmer margins” are not “more receptive to the needs of their Democratic constituents,” JSA155a n.266. The court’s conclusion is backed by the academic literature, which reveals that Wisconsin’s Legislature is even more ideologically polarized than the U.S. Congress. See Shor & McCarty, supra, at 540.

It is true, of course, that there are some swing voters and moderate legislators. But measures of partisan asymmetry cannot be tarred as “reductionist,” App. Br. 50, when they capture the key elements of contemporary

51 voting and representation. Moreover, to the extent that voters do split their tickets or change their views over time, sensitivity testing registers the impact of this behavior. Again, under the district court’s test, a plan would be in jeopardy only if this analysis confirmed that its skew would endure even if many voters switched their allegiance from one party to the other.

4. The Test’s Implications Are Neutral and Limited.

The district court’s test is also manageable because it plays no favorites. It neither threatens nor shields one party’s plans more than the other’s. As a legal matter, this neutrality stems from the interplay of the test’s three prongs. Assume (as Appellants allege without evidence, App. Br. 50-51) that the political geography of certain states benefits Republicans because their voters are distributed more efficiently. This fact does not render pro-Republican plans in these states more legally vulnerable, so long as their skew is actually the result of political geography rather than the deliberate and disparate cracking and packing of voters. In such a case, defendants could avoid liability by invoking either the test’s first prong (lack of discriminatory intent) or its third one (legitimate justification).

Historically as well, the measures of partisan asymmetry that underpin the district court’s test have not been slanted in either party’s direction. Appellees’ expert found that in state house elections from 1972 onward, partisan bias and the efficiency gap have both exhibited means and medians very close to zero. SA215; Dkt. 149:199. This means that over the modern redistricting era, neither party has enjoyed a consistent

52 edge over its opponent. And while the average efficiency gap nationwide has trended in a Republican direction in recent years, this shift is entirely attributable to more plans being enacted by state governments under unified Republican control. SA273-74; Dkt. 149:206. If Democrats had designed more maps, the average efficiency gap would have moved in the opposite direction. Id.16

Unsurprisingly, given these facts, Appellants are wrong that the district court’s test is “biased against Republicans” and would invalidate “one of every three plans.” App. Br. 50, 52. As the district court noted, the test’s implications can be estimated by tallying the number of prior maps that were (1) designed by a party in full control of the redistricting process, and (2) highly asymmetric. JA134. This approach does not consider the durability of, or justification for, any asymmetry. It also treats unified government as a proxy for discriminatory intent even though not all parties in charge of redistricting seek to handicap their rivals. Id. The resulting figures therefore represent the far upper limit of the test’s potential reach.

With these caveats in mind, Appellees’ expert analyzed over two hundred state house plans spanning the period from 1972 to 2014. JA195-196. Of these plans, only one-fifth were enacted by a party in full control of redistricting and then exhibited an initial efficiency gap

16 Precisely because partisan gerrymandering can be carried out by Democrats as easily as by Republicans, the Republican National Committee urged the Court to curb the practice in Bandemer. See Br. of Republican National Committee as Amicus Curiae, Davis v. Bandemer, 478 U.S. 109 (1986), 1985 WL 670030.

53 above 7%. (Appellees’ expert found that efficiency gaps above 7% are historically anomalous and particularly durable. SA236-249, 259-271, 315-20.) And less than one-tenth of the plans were enacted by a party in full control of redistricting and then exhibited an initial efficiency gap above 10%. (Justice Stevens floated 10% as a possible asymmetry threshold in LULAC. See 548 U.S. at 468 n.9 (Stevens, J., concurring in part and dissenting in part).) Furthermore, of the plans flagged using a 7% threshold, three-fifths were enacted by—and subsequently favored—Democrats. Similarly, more than half of the plans flagged using a 10% cutoff were pro-Democratic in intent and effect.17

These statistics refute Appellants’ claims about the test’s consequences. Far from being biased against pro-Republican maps, historically it would have called into question more pro-Democratic ones. And far from striking down one-third of prior plans, it actually would have allowed plaintiffs to challenge, at most, one-tenth to one-fifth of them. These are the hallmarks of a “limited and precise” standard—one that does not “commit federal and state courts to unprecedented intervention,” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment), or “throw into doubt the vast majority of the Nation’s . . . districts,” Miller, 515 U.S. at 928 (O’Connor, J., concurring). Indeed, compared 17 Appellees do not ask the Court to set an asymmetry threshold. As the district court observed, because Act 43’s asymmetry “is one of the largest in recent history, determining a threshold may . . . wait for another day.” JA137. The Court’s reapportionment decisions, which took more than a decade to arrive at the presumptive 10% population deviation cutoff for state legislative plans, further support this approach.

54 to other redistricting theories, the impact of the district court’s test would be quite minor. See Gary W. Cox & Jonathan N. Katz, Elbridge Gerry’s Salamander 4 (2002) (noting that almost every map in the country was redrawn during the reapportionment revolution of the 1960s); Ellen D. Katz et al., Documenting Discrimination in Voting, 39 U. Mich. J.L. Reform 643, 655 (2006) (counting more than 800 Section 2 suits since the Court’s decision in Gingles).

5. Compliance with the Test Is Straightforward.

Even if the district court’s test is judicially manageable, the Court might still worry that ex ante compliance with it would be difficult. But it would not be hard for states to avoid liability under the test, nor would doing so interfere with any of their other legal obligations.

First, a state could prevent a large and durable asymmetry by employing the same tools that all modern mapmakers already rely on: data sets of past election results, redistricting software, regression modeling, sensitivity testing, and so on. At present, these tools are often exploited to make plans severely and persistently asymmetric. But it would be just as easy to harness the tools for the opposite purpose: to curb rather than to enhance partisan unfairness. As the district court pointed out, “drafters can assess the durability of their partisan maps, even absent an actual electoral outcome, by employing [sensitivity testing].” JSA176a n.314.

A state could also eliminate any possibility of a finding of discriminatory intent by adopting a bipartisan or nonpartisan redistricting process. In the district

55 court’s words, “[i]f a nonpartisan or bipartisan plan displays a high [asymmetry], the remaining components of the analysis will prevent a finding of a constitutional violation.” JSA171a. More than a dozen states currently use commissions to design their state legislative districts. See National Conference of State Legislatures, Redistricting Law 2010, at 163-68 (2009). Plans enacted by divided state governments—and so approved by elected officials from both parties—are even more common. SA273. In neither of these scenarios would there be any serious prospect of liability.

What if a state determines, over the course of its redistricting process, that it can avoid a large and durable asymmetry only by compromising its other legitimate goals? The district court’s test would not compel the state to make this sacrifice—say, to draw bizarrely shaped districts, to divide more political subdivisions, or to disrupt districts protected by the Voting Rights Act. To the contrary, the state would be able to insulate itself from liability by pointing to these valid aims. They would be an ironclad justification for the plan’s skew. JSA177a-218a.

In fact, conflict between partisan symmetry and other redistricting objectives is infrequent. Due to the near-infinite number of possible district configurations, it is generally possible for plans both to be symmetric and to satisfy all other criteria. In Wisconsin, for example, Professor Chen showed that there are hundreds of Assembly maps that exhibit very small asymmetries and that perform at least as well as Act 43 in terms of compactness, political subdivision splits, and Voting Rights Act compliance. See Chen, supra, at 12;

56 see also, e.g., Jowei Chen & Jonathan Rodden, Cutting Through the Thicket, 14 Election L.J. 331 (2015) (reaching the same conclusion for congressional plans in Florida).

In any event, history shows that even if there were a short-term rise in partisan gerrymandering lawsuits, this uptick would fade over time as mapmakers learned to abide by the new legal limit. Reapportionment litigation, for instance, has never approached its 1960s peak in five subsequent cycles. Nor has racial gerrymandering litigation been nearly as prevalent since the 1990s. The same pattern would likely hold for partisan gerrymandering cases: They would be infrequent in the future because line-drawers would take the necessary steps to avoid liability. See Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 68-69 (2004).

III. Compliance with Traditional Districting Criteria Is Not a Safe Harbor.

After contending that partisan gerrymandering claims are non-justiciable, Appellants assert that even if they are justiciable, they must include as an element noncompliance with traditional districting criteria. App. Br. 59-67. It is hard to think of an argument that has been raised and rejected as often as this one. As far back as Gaffney, a unanimous Court was unimpressed by evidence that “irregularly shaped districts” “wiggle[d] and joggle[d] boundary lines.” 412 U.S. at 752 n.18. “[C]ompactness or attractiveness,” declared the Court, “has never been held to constitute an independent federal constitutional requirement.” Id.

57 The Court has adhered to this position in its partisan

gerrymandering cases. In Bandemer, Justice Powell urged that the “most important” factor should be “the shapes of voting districts and adherence to established political subdivision boundaries.” 478 U.S. at 173 (Powell, J., concurring in part and dissenting in part). The plurality specifically “disagree[d] with [his] conception of a constitutional violation” because noncompliance with traditional criteria does “not show any actual disadvantage beyond that shown by the election results.” Id. at 138-40 (plurality opinion).

In Vieth, likewise, Justice Souter proposed a test requiring a plaintiff to show that a district “paid little or no heed to . . . traditional districting principles.” 541 U.S. at 348 (Souter, J., dissenting). An outright majority of the Court dismissed this test. The plurality stressed the unmanageability of the approach, asking “How much disregard of traditional districting principles?” and “What is a lower court to do when . . . the district adheres to some traditional criteria but not others?” Id. at 296 (plurality opinion). The plurality also observed that aesthetically pleasing districts nevertheless can be grossly gerrymandered: “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.” Id. at 298. Justice Kennedy further explained that traditional principles are not “sound as independent judicial standards for measuring a burden on representational rights.” Id. at 308 (Kennedy, J., concurring in the judgment). Their defect is that “[t]hey cannot promise political neutrality when used as the basis for relief,” but rather “unavoidably have significant political effect.” Id. at 308-09.

58 The Court has also repeatedly rebuffed Appellants’

claim in the racial gerrymandering context. Over and over, the Court has made clear that noncompliance with traditional criteria is probative evidence of a predominant racial purpose, but not a prerequisite for liability. See Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 799 (2017) (“[A] conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition . . . .”); Miller, 515 U.S. at 913 (“[B]izarreness is [not] a necessary element of the constitutional wrong or a threshold requirement of proof . . . .”); Shaw I, 509 U.S. at 647 (“[T]hese criteria . . . are [not] constitutionally required . . . .”).

There are good reasons for this unbroken line of precedent. On the one hand, traditional criteria may be disregarded for many reasons other than partisan gain: a predominant racial motivation, an effort to comply with the Voting Rights Act, the presence of irregular geographic boundaries, and so on. On the other hand, as the district court pointed out, “[h]ighly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional criteria.” JSA121a-122a. “A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” JSA122a. Appellants’ approach would thus produce an inordinate number of false positives (plans noncompliant with traditional criteria for nonpartisan reasons) and false negatives (compliant plans that still intentionally, severely, durably, and unjustifiably discriminate against a party’s voters).

59 None of this is to say that traditional criteria are

irrelevant under the district court’s test. As in racial gerrymandering cases, a failure to abide by them may be persuasive evidence of discriminatory intent. See Bethune-Hill, 137 S. Ct. at 799; Miller, 515 U.S. at 913. And as in one person, one vote cases, respect for traditional principles may provide a legitimate justification for a plan’s discriminatory effect. See Brown, 462 U.S. at 844; Mahan, 410 U.S. at 323. Traditional factors did not play a large role in this litigation only because Appellees had direct proof of discriminatory intent (and so did not need to resort to circumstantial evidence) and because Appellants “made no effort to justify the plan[’s skew] using neutral criteria.” JA146. In a typical case under the district court’s test, traditional principles would likely receive much more attention.

In any event, contrary to Appellants’ claim, it is far from “undisputed” that Act 43 complies with traditional criteria. App. Br. 25, 62. As documented above, the plan (1) divided seven more counties than any other map in Wisconsin’s modern history; (2) had less compact districts, on average, than any other Wisconsin map for which data is available; (3) moved seven times more people than necessary to achieve population equality; (4) paired six more Assembly incumbents than a previous map paired for both legislative chambers; and (5) violated Section 2 of the Voting Rights Act through its treatment of Latino voters. See supra Statement Part I. This poor record is what arises when mapmakers use traditional principles as a fig leaf to conceal their pursuit of partisan gain.

60 IV. Appellants Are Not Entitled to a Remand.

Appellants’ final argument is that they were caught unaware by the district court’s consideration of partisan entrenchment, and so are entitled to a remand on this issue. App. Br. 25, 53. 56. This claim cannot be seriously entertained. Appellees stressed the durability of a party’s advantage throughout the litigation, and the district court made it abundantly clear, prior to trial, that it shared this concern.

Starting with their complaint, Appellees argued that an “extremely durable” gerrymander is constitutionally problematic because “it is unlikely that the disadvantaged party’s adherents will be able to protect themselves through the political process.” JA30. Appellees maintained this “emphasis on the durability of gerrymandering” in every subsequent filing. Dkt. 68:74; see also, e.g., Dkt. 31:11; Dkt. 134:51. At trial too, Appellees presented extensive evidence about the intent of Act 43’s drafters to entrench the Republican Party in power, as well as the persistent pro-Republican skew that in fact ensued. Dkt. 148:222-235; Dkt. 149:231-246; Ex. 161:126-181.18

For its part, the district court could not have indicated more plainly its interest in entrenchment. The court stated in its summary judgment decision: “Focusing on durability makes some sense because it is an indication that ordinary political processes cannot fix the problem.” JA129. “[D]urability is an appropriate

18 Given Appellees’ focus on durability, Appellants’ claim that Appellees implicitly waived any reliance on entrenchment, App. Br. 53, cannot be taken seriously.

61 measure of discriminatory effect.” Id. “[T]he collective will of the people should not be subverted indefinitely.” JA132. And “plaintiffs [should] show that defendants had the intent to prevent the minority party from regaining control throughout the life of the districting plan.” JA141.

Appellants apparently overlooked these comments (as well as Appellees’ filings and evidence). But they have only themselves to blame for this oversight, and are not entitled to a remand because of it.

62 CONCLUSION

For the foregoing reasons, the Court should affirm the decision below.

Respectfully submitted,

Jessica Ring Amunson JENNER & BLOCK LLP 1099 New York Ave., NW, Ste. 900 Washington, DC 20001 Michele Odorizzi MAYER BROWN, LLP 71 S. Wacker Dr. Chicago, IL 60606 Douglas M. Poland RATHJE & WOODWARD, LLC 10 E. Doty St., Ste. 507 Madison, WI 53703 Peter G. Earle LAW OFFICE OF PETER G. EARLE 839 N. Jefferson St., Ste. 300 Milwaukee, WI 53202

Paul M. Smith Counsel of Record J. Gerald Hebert Danielle M. Lang CAMPAIGN LEGAL CENTER 1411 K St., NW, Ste. 1400 Washington, DC 20005 (202) 736-2200 psmith@campaignlegalcenter.org

Nicholas O. Stephanopoulos UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th St., Ste. 510 Chicago, IL 60637 Ruth M. Greenwood Annabelle E. Harless CAMPAIGN LEGAL CENTER 73 W. Monroe St., Ste. 322 Chicago, IL 60603

No. 16-1161

In the Supreme Court of the United States

BEVERLY R. GILL, ET AL., APPELLANTS,

v.

WILLIAM WHITFORD, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

REPLY BRIEF FOR APPELLANTS

Attorneys for Appellants

BRAD D. SCHIMEL

Attorney General

KEVIN M. LEROY

Deputy Solicitor

General

State of Wisconsin

Department of Justice

17 West Main Street

Madison, WI 53703

tseytlinm@doj.state.wi.us

(608) 267-9323

MISHA TSEYTLIN

Solicitor General

Counsel of Record

RYAN J. WALSH

Chief Deputy

Solicitor General

AMY C. MILLER

Assistant Solicitor

General

BRIAN P. KEENAN

Assistant Attorney

General

TABLE OF CONTENTS

Page

REPLY BRIEF FOR APPELLANTS........................... 1

ARGUMENT .................................................................. 2

I. Plaintiffs’ Statewide Standing Theory

Contravenes This Court’s Precedents.............. 2

II. Plaintiffs’ Reliance On The Ahistoric

“Partisan Symmetry” Concept Underscores

That Statewide Partisan-Gerrymandering

Claims Are Nonjusticiable ................................ 8

III. Plaintiffs’ Test Is Overbroad, Difficult To

Comply With, And Biased In Favor Of

Democrat-Controlled Legislatures ................. 13

IV. Act 43 Is Lawful Because It Complies With

Traditional Redistricting Principles .............. 22

CONCLUSION ............................................................ 27

ii

TABLE OF AUTHORITIES

Cases

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) ......................................... 3, 6

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n,

135 S. Ct. 2652 (2015) ........................................... 14

Baker v. Carr,

369 U.S. 186 (1962) ................................................. 6

Baldus v. Members of Wis. Gov’t Accountability Bd.,

849 F. Supp. 2d 840 (E.D. Wis. 2012).................. 24

Baumgart v. Wendelberger,

Nos. 01-C-121, 02-C-366, 2002 WL 34127471

(E.D. Wis. May 30, 2002) ...................................... 19

Benisek v. Lamone,

No. JKB-13-3233, 2017 WL 3642928 (D. Md.

Aug. 24, 2017) .......................................................... 8

Bethune-Hill v. Va. State Bd. of Elections,

137 S. Ct. 788 (2017) ....................................... 24, 25

Broward Citizens for Fair Dists. v. Broward Cnty.,

No. 12-60317-CIV, 2012 WL 1110053 (S.D. Fla.

Apr. 3, 2012) ............................................................. 7

Cooper v. Harris,

137 S. Ct. 1455 (2017) ............................................. 1

iii

Davis v. Bandemer,

478 U.S. 109 (1986) .......................................passim

Gaffney v. Cummings,

412 U.S. 735 (1973) ......................................... 24, 26

Hall v. Virginia,

276 F. Supp. 2d 528 (E.D. Va. 2003) ..................... 7

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ........................................... 5, 12

Matal v. Tam,

137 S. Ct. 1744 (2017) ........................................... 12

Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp.,

460 U.S. 1 (1983)...................................................... 5

Old Person v. Brown,

182 F. Supp. 2d 1002 (D. Mont. 2002)................... 7

Pope v. Cnty. of Albany,

No. 11-cv-0736, 2014 WL 316703 (N.D.N.Y.

Jan. 28, 2014) ........................................................... 7

Radogno v. Ill. State Bd. of Elections,

No. 1:11-cv-04884, 2011 WL 5025251 (N.D. Ill.

Oct. 21, 2011) ........................................................... 7

Reynolds v. Sims,

377 U.S. 533 (1964) ................................................. 9

iv

Shaw v. Hunt,

517 U.S. 899 (1996) ................................................. 6

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ................................................... 5

United States v. Hays,

515 U.S. 737 (1995) ............................................. 2, 6

United States v. Jacobsen,

466 U.S. 109 (1984) ................................................. 5

Vieth v. Jubelirer,

541 U.S. 267 (2004) .......................................passim

Wesberry v. Sanders,

376 U.S. 1 (1964)...................................................... 9

Other Authorities

Edward B. Foley, Due Process, Fair Play, And

Excessive Partisanship: A New Principle For

Judicial Review Of Election Laws,

84 U. Chi. L. Rev. 655 (2017) ................................. 9

Edward B. Foley, The Gerrymander and the

Constitution: Two Avenues of Analysis and the

Quest for a Durable Precedent,

Ohio St. U. Moritz C. L. Pub. L. & Legal

Theory Working Paper Series No. 401 (July

10, 2017).................................................................... 8

John Locke, Two Treatises of Government (Mark

Goldie ed., 1993) .................................................... 10

v

The Federalist No. 10 (James Madison) (George

Stade ed., 2006)...................................................... 27

The Federalist No. 54 (James Madison) (George

Stade ed., 2006)...................................................... 10

REPLY BRIEF FOR APPELLANTS

Plaintiffs’ brief makes clear that they “would com-

mit federal . . . courts to unprecedented intervention

in the American political process.” Vieth v. Jubelirer,

541 U.S. 267, 306 (2004) (Kennedy, J., concurring in

the judgment). The scope and consequences of the

new cause of action that Plaintiffs ask this Court to

create are breathtaking. This new claim could be

brought by any voter who favors one of this country’s

two major parties and would permit statewide invali-

dation of redistricting maps. And this cause of action

would be far more powerful than racial-gerrymander-

ing claims, which are limited to district-specific

standing and relief. Especially in States where “racial

identification is highly correlated with political affili-

ation,” Cooper v. Harris, 137 S. Ct. 1455, 1473 (2017)

(citation omitted), courts would face the perverse

spectacle of plaintiffs who have been subjected to ra-

cially motivated districting being incentivized to ar-

gue that politics, not race, was at play, so that they

could gain access to Plaintiffs’ novel statewide theory

of standing and invalidation.

Plaintiffs’ test is the antithesis of “limited and

precise.” Vieth, 541 U.S. at 306 (Kennedy, J., concur-

ring in the judgment). As Plaintiffs’ brief makes clear,

two of the three prongs of their test—political intent

and impossibility of creating a map with less partisan

asymmetry—would be mere formalities in most cases.

A legislature’s scrupulous compliance with tradi-

tional redistricting principles would be irrelevant. As

2

for the outcome-determinative effects prong, Plain-

tiffs are willing to say only that each court can choose

from any number of metrics related to the ahistoric

partisan-symmetry concept.

Although the inadequacies of Plaintiffs’ test re-

quire dismissal of their claims, Plaintiffs’ failure un-

derscores a broader point: this Court should

definitively hold that federal courts lack jurisdiction

over statewide political-gerrymandering claims.

Every statewide theory that has been proposed for

three decades has boiled down to “some form of rough

proportional representation for all political groups,”

Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O’Con-

nor, J., concurring in the judgment), and this Court

has already held that plaintiffs lack standing to bring

statewide claims even in the racial-gerrymandering

context. A holding that federal courts similarly lack

jurisdiction to adjudicate statewide partisanship

claims would bring clarity and consistency to the law.

ARGUMENT

I. Plaintiffs’ Statewide Standing Theory Con-

travenes This Court’s Precedents

Plaintiffs lack standing to bring their statewide

claims. That conclusion follows from this Court’s

caselaw, which makes clear that gerrymandering

harms occur only at the district-specific level, United

States v. Hays, 515 U.S. 737, 745 (1995); Ala. Legisla-

tive Black Caucus v. Alabama, 135 S. Ct. 1257, 1265

3

(2015), and from the general understanding that vot-

ers do not vote for a “slate of legislative candidates,”

but for individual legislators, Bandemer, 478 U.S. at

159 (O’Connor, J., concurring in the judgment); Ap-

pellants’ Br. 28–29.

Plaintiffs fail to answer many of the standing ar-

guments that Defendants made in their opening brief.

Plaintiffs do not dispute that they never argued below

“that any of their districts were unlawfully gerryman-

dered,”1 and do not even attempt to explain how, for

example, Act 43 harmed lead plaintiff Whitford, given

that he would live in a Democrat-dominated district

under virtually any map. Appellants’ Br. 31. While

1 The only part of Plaintiffs’ brief that even discusses spe-

cific districts is a two-page portion in their fact section, which

deals with only a few districts and relies upon charts and objec-

tions never mentioned before the district court. Appellees’ Br.

7–8. For example, while Plaintiffs now claim that Act 43

“packed” Democrats into eight districts with more than 80% of

the vote, yet contained no such Republican-packed districts, Ap-

pellees’ Br. 7, Plaintiffs neglect to mention that their own

Demonstration Plan had nine districts greater than 80% Demo-

crat and none for Republicans, Dkt. 149:125–27, 132–34; Defs.

Ex. 561. Plaintiffs’ reliance on Professor Chen’s alternative

“Assembly maps,” Appellees’ Br. 19, 55, is similarly

inappropriate, as the district court specifically refused to give

any weight to those alternative maps because Chen “was not

deposed and did not testify at trial” and therefore the court was

“unable to examine properly the reliability of [his] methodologies,” J.S. App. 197a n.350.

4

Plaintiffs vaguely assert that Act 43 “dilutes Demo-

cratic votes throughout Wisconsin,” Appellees’ Br. 29–

30, they have no answer for the point that Whitford

does not vote “throughout Wisconsin,” but only in his

own district. Plaintiffs also do not answer Defend-

ants’ argument that their standing theory would nec-

essarily permit interstate lawsuits in the House of

Representatives context, Appellants’ Br. 30–31,

brushing this point aside in a conclusory footnote, Ap-

pellees’ Br. 32 n.10.

And Plaintiffs do not contest Defendants’ expla-

nation that Plaintiffs’ theory would privilege their

new politics-based cause of action over traditional ra-

cial-gerrymandering claims by permitting statewide

claims in the political context, where such broad

claims are not available in the racial context. Appel-

lants’ Br. 29–30. Plaintiffs tout this unthinkable con-

sequence as a feature, asserting that systematically

favoring allegations of political gerrymandering

would somehow “improve” the law. Appellees’ Br. 30–

31. Notably, not one of Plaintiffs’ numerous amici

even attempted to offer a response to this serious de-

ficiency in Plaintiffs’ unprecedented statewide theory

of standing.

The remaining standing arguments that Plain-

tiffs make do not support their position.

Plaintiffs cite to this Court’s political-gerryman-

dering caselaw, Appellees’ Br. 28, but those cases re-

quire dismissal on jurisdictional grounds. In Vieth,

5

five Justices concluded that federal courts lack juris-

diction to consider statewide partisan-gerrymander-

ing claims. Justice Stevens found that plaintiffs

lacked standing to bring statewide claims. Vieth, 541

U.S. at 327–28. Combining Justice Stevens’ conclu-

sion with the four-Justice plurality’s holding that fed-

eral courts lack jurisdiction to consider any partisan-

gerrymandering claims, id. at 281—as required by

United States v. Jacobsen, 466 U.S. 109, 115–18 &

n.12 (1984), and Moses H. Cone Memorial Hospital v.

Mercury Construction Corp., 460 U.S. 1, 17 (1983)—

yields the controlling rule that federal courts lack ju-

risdiction over statewide claims. This is now the sixth

brief that Defendants have filed in this Court that re-

lies upon the principles in Jacobsen and Moses H.

Cone, Appellants’ Br. 26–27; J.S. 20; Opp. to Mot. to

Affirm 2; Stay Appl. 12; Reply in Support of Stay

Appl. 3, and yet Plaintiffs have not even attempted to

address those cases. As for Bandemer and League of

United Latin American Citizens v. Perry (LULAC),

548 U.S. 399 (2006), those decisions did not discuss

standing, let alone decide the issue, see Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 91 (1998). And

Plaintiffs do not dispute that counsel in LULAC spe-

cifically assured this Court at oral argument, in re-

sponse to standing concerns, that the claim was

district-specific. Appellants’ Br. 33.

Plaintiffs’ argument that they have standing be-

cause of the way they have pleaded their case, Appel-

lees’ Br. 28–30, is circular ipse dixit. While Plaintiffs

have insisted that their allegations are “statewide in

6

nature,” Appellees’ Br. 29, so did plaintiffs in this

Court’s racial-gerrymandering cases. As Hays ex-

plained, “Appellees insist that they challenged Act 1

in its entirety, not District 4 in isolation. That is true.

It is also irrelevant” because “[o]nly those citizens

able to allege injury as a direct result of having per-

sonally been denied equal treatment may bring such

a challenge.” 515 U.S. at 746 (citations and emphasis

omitted). For the same reasons, Plaintiffs’ assertions

cannot create the legal basis for a statewide claim,

based upon statewide injuries. Or, as this Court put

it in Alabama Legislative Black Caucus, allegations of

statewide gerrymandering are “legal unicorn[s],” to

be found “only in the legal imagination.” 135 S. Ct. at

1265.

Contrary to Plaintiffs’ claims, Appellees’ Br. 28–

30, this Court’s one-person, one-vote and minority-

vote-dilution cases only further undermine their ar-

gument for an unprecedented statewide standing the-

ory. Baker v. Carr, 369 U.S. 186 (1962), held that the

plaintiffs had standing because they lived in overpop-

ulated districts as compared to other districts in the

State, and thus suffered the personal, district-specific

harm of having less than one vote. Id. at 206–08.

Plaintiffs here do not argue that they have less than

one vote when compared to voters in other districts;

rather, they rest upon a purely statewide theory. This

Court’s minority-vote-dilution cases similarly do not

recognize statewide claims based upon statewide in-

jury. See Shaw v. Hunt, 517 U.S. 899, 916–17 (1996)

(finding “singularly unpersuasive” the argument that

7

“draw[ing] a majority-minority district anywhere [in

the State]” could remedy a vote-dilution injury suf-

fered in another part of the State (emphasis added)).

To the contrary, courts have held, after citing racial-

gerrymandering caselaw, that plaintiffs lack standing

to bring vote-dilution claims for districts where they

do not live. See Hall v. Virginia, 276 F. Supp. 2d 528,

531–32 (E.D. Va. 2003); Old Person v. Brown, 182 F.

Supp. 2d 1002, 1006 (D. Mont. 2002); Broward Citi-

zens for Fair Dists. v. Broward Cnty., No. 12-60317-

CIV, 2012 WL 1110053, at *3 (S.D. Fla. Apr. 3, 2012) ;

Radogno v. Ill. State Bd. of Elections, No. 1:11-cv-

04884, 2011 WL 5025251, at *2 (N.D. Ill. Oct. 21,

2011).2

Finally, Plaintiffs’ argument that partisan-gerry-

mandering claims “cannot be justiciable yet incapable

of being advanced statewide,” Appellees’ Br. 30, is de-

monstrably false. Justice Stevens explained that, be-

cause of this Court’s standing doctrine, he would

entertain only district-specific claims, Vieth, 541 U.S.

at 327–28; Justice Souter, joined by Justice Ginsburg,

believed that all political-gerrymandering claims

must be “built upon” district-specific claims, id. at

2 Pope v. County of Albany, No. 11-cv-0736, 2014 WL 316703

(N.D.N.Y. Jan. 28, 2014), the only vote-dilution standing case

that Plaintiffs cite, Appellees’ Br. 29, merely held that plaintiffs

had standing to ask for one more majority-minority district in

the City of Albany because they were “challeng[ing] the drawing

of the district lines . . . within the City . . . where they reside,” Pope, 2014 WL 316703, at *6 (emphasis added).

8

353; and scholars have advocated a single-district-

only cause of action, see, e.g., Edward B. Foley, The

Gerrymander and the Constitution: Two Avenues of

Analysis and the Quest for a Durable Precedent, Ohio

St. U. Moritz C. L. Pub. L. & Legal Theory Working

Paper Series No. 401, at 13–15 (July 10, 2017). Judge

Niemeyer’s dissenting opinion in Benisek v. Lamone,

No. JKB-13-3233, 2017 WL 3642928 (D. Md. Aug. 24,

2017), which Plaintiffs quote on the very first page of

their brief, Appellees’ Br. 1, arises from a single-dis-

trict case, Maryland Pls. Amicus Br. 3.

II. Plaintiffs’ Reliance On The Ahistoric “Parti-

san Symmetry” Concept Underscores That

Statewide Partisan-Gerrymandering Claims

Are Nonjusticiable

Statewide partisan-gerrymandering claims are

nonjusticiable because no litigant has identified “com-

prehensive and neutral principles for drawing elec-

toral boundaries,” such as those derived from “the

annals of parliamentary or legislative bodies.” Vieth,

541 U.S. at 306–08 (Kennedy, J., concurring in the

judgment). The lack of such historically based princi-

ples is fatal to the justiciability of statewide claims

because, without these principles, courts cannot even

begin constructing a doctrine. No such “comprehen-

sive and neutral principles” have been uncovered be-

cause all proposals for statewide tests in this area

have boiled down to “some form of rough proportional

representation for all political groups.” Bandemer,

9

478 U.S. at 145 (O’Connor, J., concurring in the judg-

ment). These points, combined with the insuperable

standing problems inherent in statewide gerryman-

dering claims, militate strongly in favor of definitively

holding that such claims are nonjusticiable. Appel-

lants’ Br. 34–40.

Plaintiffs do not dispute that partisan-gerryman-

dering claims are nonjusticiable unless litigants can

identify historically based districting principles, but

instead assert that they have uncovered such princi-

ples in so-called “partisan symmetry.” Appellees’ Br.

37–41. But there is simply “no basis in the historical

record for saying that the Constitution embodies a

standard of partisan symmetry,” Edward B. Foley,

Due Process, Fair Play, And Excessive Partisanship:

A New Principle For Judicial Review Of Election

Laws, 84 U. Chi. L. Rev. 655, 727 (2017), and Plain-

tiffs do not cite even one historical source endorsing

(or even suggesting) partisan symmetry as a “compre-

hensive and neutral principle[ ] for drawing electoral

boundaries,” Vieth, 541 U.S. at 306–07 (Kennedy, J.,

concurring in the judgment). This complete lack of

historical support contrasts sharply with the over-

whelming historical record in favor of the one-person,

one-vote principle. See Reynolds v. Sims, 377 U.S.

533, 558 (1964) (“The conception of political equality

from the Declaration of Independence, to Lincoln’s

Gettysburg Address, to the Fifteenth, Seventeenth,

and Nineteenth Amendments can mean only one

thing—one person, one vote.” (citation omitted));

Wesberry v. Sanders, 376 U.S. 1, 13–14 (1964) (citing

10

debates from the Constitutional Convention as histor-

ical support); The Federalist No. 54, at 304 (James

Madison) (George Stade ed., 2006) (“It is a fundamen-

tal principle of the proposed constitution, that [ ] the

aggregate number of representatives allotted to the

several States is to be . . . founded on the aggregate

number of inhabitants.”); John Locke, Two Treatises

of Government 195–96 (Mark Goldie ed., 1993) (“To

what gross absurdities . . . we see the bare name of a

town . . . where scarce . . . more inhabitants than a

shepherd is to be found, sends as many representa-

tives to the grand assembly of law-makers, as a whole

county numerous in people, and powerful in riches.”).

Even in more modern times, a 50-State survey found

that not a single State uses partisan symmetry as a

redistricting principle. Appellants’ Br. 38.

One important reason for the lack of historical

support for partisan symmetry is that “symmetry” is

just some social scientists’ label for metrics calculat-

ing how far a map deviates from another ahistoric

concept: proportional representation. Plaintiffs are

wrong when they assert that because symmetry met-

rics do not require strict 1:1 vote-to-seat proportional-

ity, they are not based upon proportional-

representation principles. Appellees’ Br. 39–41.

Symmetry metrics analyze plans based upon a party’s

seats won compared to its statewide vote share, seek-

ing to identify the number of seats a party “should”

win after obtaining a certain statewide vote percent-

age. Partisan symmetry is thus no more removed

from proportionality than was the standard this

11

Court rejected in Vieth: a majority of votes should win

a majority of seats. Whether a symmetry metric uses

a baseline of 1:1 proportionality, 2:1 hyper-propor-

tionality, a majority-of-seats-with-majority-of-votes

rule, or another ratio-based criterion, it is just “rough

proportional[ity].” Bandemer, 478 U.S. at 145 (O’Con-

nor, J., concurring in the judgment).

Plaintiffs’ reliance on “[c]omputer simulations”

that permit social scientists to compare how a map

“performs” against possible alternative maps in terms

of deviation from the “benchmark of neutral treat-

ment” of some partisan-symmetry metric, Appellees’

Br. 47–48, misunderstands the fundamental chal-

lenge in this area. It was easy at the time of Vieth

(and, indeed, well before that) to use computing power

to create a series of alternative maps and then to

measure how the challenged map “performs” in terms

of its deviation from the “benchmark of neutral treat-

ment” of any proportionality-based metric, be it 1:1

proportionality or any other ratio-based criterion. See

Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the

judgment) (“Computer assisted districting has be-

come so routine and sophisticated that legislatures,

experts, and courts can use databases to map elec-

toral districts in a matter of hours, not months.”). A

fatal problem with any test built around such an ap-

proach remains that—unlike with the foundational

one-person, one-vote principle—the Constitution does

not embody a partisan-symmetry benchmark, devia-

tion from which courts must minimize.

12

Plaintiffs are incorrect when they claim that a

“majority” of this Court in LULAC “expressed inter-

est” in building a doctrine around partisan symmetry.

Appellees’ Br. 37. Justice Kennedy explained that

symmetry alone cannot serve as the baseline for adju-

dicating “how much partisan dominance is too much,”

specifically rejecting an approach proposed by an ami-

cus brief that is extremely similar to Plaintiffs’ pro-

posal, LULAC, 548 U.S. at 420, and Justices Scalia

and Thomas agreed with that analysis, id. at 511.

Justice Souter took no position as to “the administra-

bility” of symmetry. Id. at 483–84. And Justice

Breyer relied upon minority party entrenchment. Id.

at 491–92. While Justice Stevens noted that a sym-

metry standard could be “manageable,” id. at 468 n.9,

he did not disclaim his prior position that this Court’s

Article III caselaw permits courts to consider only dis-

trict-specific claims, supra p. 7.

Finally, Plaintiffs’ citation to First and Four-

teenth Amendment caselaw, Appellees’ Br. 34–36,

does nothing to relieve them of the responsibility of

identifying historically based “comprehensive and

neutral principles” from which to construct a judi-

cially manageable doctrine. Vieth, 541 U.S. at 306,

308 (Kennedy, J., concurring in the judgment). While

Plaintiffs correctly point out that the First Amend-

ment prohibits the government from “punish[ing] or

suppress[ing] speech” based on viewpoint, Matal v.

Tam, 137 S. Ct. 1744, 1765–66 (2017) (Kennedy, J.,

concurring in part and concurring in the judgment),

13

that precept does nothing to salvage Plaintiffs’ law-

suit, see Republican State Leadership Committee

Amicus Br. 23–26, including because it does not help

courts identify neutral, historically based districting

principles from which a political-gerrymandering doc-

trine can be constructed.3 As to the Fourteenth

Amendment, Plaintiffs claim that partisan gerryman-

dering involves “deliberate dilution of a group of vot-

ers’ electoral influence.” Appellees’ Br. 34. Even if

vote-dilution concepts could coherently apply to the

two major parties’ political power—which they can-

not, Bandemer, 478 U.S. at 147 (O’Connor, J., concur-

ring in the judgment); Republican State Leadership

Committee Amicus Br. 18–22—a vote-dilution-based

partisanship cause of action would still be nonjustici-

able without a neutral, historically grounded base-

line.

III. Plaintiffs’ Test Is Overbroad, Difficult To

Comply With, And Biased In Favor Of Dem-

ocrat-Controlled Legislatures

Plaintiffs’ lawsuit must also be dismissed because

they have not proposed a “limited and precise” legal

test. See Vieth, 541 U.S. at 306 (Kennedy, J., concur-

ring in the judgment). Given the shifting tests that

3 The First Amendment argument raised by one of Plain-

tiffs’ amici—that partisan intent, standing alone, renders a plan

presumptively unconstitutional, Common Cause Amicus Br.

23—is foreclosed by LULAC’s holding that even a showing of sole partisan intent is insufficient to invalidate a plan.

14

Plaintiffs and the district court have articulated, De-

fendants’ opening brief explained why each of three

tests—social-science hodgepodge, efficiency gap, and

entrenchment—failed the “limited and precise” crite-

ria. Appellants’ Br. 45–59. In their brief on the mer-

its, Plaintiffs articulate a test with three prongs,

which asks three questions: (1) did the legislature

have partisan intent?; (2) does the map score poorly

on partisan-symmetry metric(s) and durability anal-

yses?; and (3) was it impossible for the Legislature to

draw a map that scored better, while still complying

with other requirements? Appellees’ Br. 33. This test

is wildly overbroad, difficult for any legislature to

comply with, and severely biased in favor of Demo-

crat-controlled legislatures.

The first and third prongs of Plaintiffs’ test would

be mere formalities in most cases. Plaintiffs define

their first prong as partisan intent, and do not dispute

Defendants’ argument that this is the same intent

test that the Bandemer plurality articulated. Appel-

lants’ Br. 44–45. As the Bandemer plurality ex-

plained, however, “[a]s long as redistricting is done by

a legislature, it should not be very difficult to prove

that the likely political consequences of the reappor-

tionment were intended.” 478 U.S. at 129. All Plain-

tiffs’ first element would do is make legislatively

drawn maps presumptively suspect, an illogical inver-

sion of the Elections Clause argument that this Court

rejected in Arizona State Legislature v. Arizona Inde-

pendent Redistricting Commission, 135 S. Ct. 2652

(2015). Plaintiffs define their third element as

15

whether “alternative district maps” could have been

drafted that have less partisan asymmetry on some

metric, while still complying with traditional redis-

tricting principles and other requirements. Appel-

lees’ Br. 33. But as Plaintiffs concede elsewhere, this

prong will be impossible for any legislature to prevail

under because, “[d]ue to the near-infinite number of

possible district configurations, it is generally possi-

ble for plans both to be symmetric and to satisfy all

other criteria.” Appellees’ Br. 55. A legislature’s com-

pliance with these principles would thus be irrele-

vant. See also infra pp. 23–24.

The real action under Plaintiffs’ test would take

place under the partisan-effects prong: how the map

scores on social-science metrics and durability anal-

yses. As Defendants explained in their opening brief,

Plaintiffs’ effects approach would be indeterminate

and deeply disruptive, as every map would be chal-

lenged in court, with each side putting forward its

own favored social-science metric(s), leading to an ex-

pensive, uncertain discovery period and trial. Appel-

lants’ Br. 46–47. Plaintiffs’ preferred symmetry

metric below was the efficiency gap, and their favored

durability analysis was based upon Professor Jack-

man’s conclusion that any plan with a gap over 7% in

its first election is unlikely to become asymmetrical in

the other party’s favor. See JA60; Dkt. 149:209.

Other plaintiffs could select other metrics and dura-

bility analyses. Appellants’ Br. 46–47. Plaintiffs offer

no more specificity, resting on vague assurances that

16

a plan must have a “sizable asymmetry” and “persis-

tence.” Appellees’ Br. 33, 46. Notably, the only metric

that the parties subjected to adversarial scrutiny be-

low—the efficiency gap—proved to be so problematic,

Appellants’ Br. 48–53, that Plaintiffs no longer defend

it as the controlling effects test, Appellees’ Br. 33.4

The number of plans that Plaintiffs’ test would

threaten is staggering. Texas Amicus Br. 26. One

third of plans drawn in the last 45 years fail Plaintiffs’

asymmetry/durability approach, having a greater

than 7% efficiency gap in the first election. JA193–

94, 201. Plaintiffs point out that the number of plans

invalidated could be somewhat lower only because

some of the plans that Plaintiffs’ approach tags as too

durably partisan were not drawn by a party in full

control of the legislature. Appellees’ Br. 52–53.

Plaintiffs are wrong to argue that this represents the

4 Plaintiffs also do not defend the district court’s entrench-

ment test, which was never fairly litigated below. Appellants’

Br. 53–59. Plaintiffs assert that they emphasized the “durabil-

ity” of Act 43’s “pro-Republican skew,” while citing to Jackman’s

durability analysis (which the district court did not rely upon).

Appellees’ Br. 60. But what both Plaintiffs and Jackman were

arguing was that an efficiency gap of 7% is “durable,” in that it

would be unlikely that such a gap would “sign flip” to being

asymmetrical in Democrats’ favor. JA60; Dkt. 149:209. Neither

Plaintiffs nor Jackman ever sought to establish that Act 43, in

the district court’s words, “secured for Republicans a lasting As-

sembly majority.” J.S. App. 145a–46a. That is the language of minority-party entrenchment, which Vieth forecloses.

17

“upper limit of the test’s potential reach.” Appellees’

Br. 52. If challengers would lose under Plaintiffs’ 7%-

gap-in-the-first-election test, they would simply advo-

cate a different asymmetry/durability combination.

Some challengers could, for example, argue that the

first election was an outlier and should therefore be

discounted. Notably, 53% of all plans in the last 45

years had a 7% or greater efficiency gap in at least one

election. See JA201.5

The facts of this case well demonstrate the inde-

terminacy of Plaintiffs’ effects approach. Plaintiffs

explain that trial courts can rely upon swing analyses

to conduct a durability inquiry. See Appellees’ Br. 47.

Plaintiffs also repeat their false assertion that, under

Dr. Gaddie’s swing analysis, “Democrats . . . would

need 54% of the statewide vote to capture a simple

majority of Assembly seats—a feat achieved just once

by either party over the last generation.” Appellees’

5 Adding further uncertainty, States will likely argue that

some of Plaintiffs’ essential premises—such as the purported

consistency of voter behavior or the claimed polarization of polit-

ical parties, Appellees’ Br. 49—do not apply in their State. Ap-

pellants’ Br. 13, 17 (explaining that Wisconsin Democrats won

54% of the two-party statewide Assembly vote in 2008, and then

only 48% of the statewide Assembly vote just six years later in

2014); New York Senate Majority Leader Amicus Br. 4 (“New

York State Senate is governed by a multiparty, multi-member

coalition”). How a future district court could adjudicate such dis-

putes, including how it may choose to weigh those considerations

against the ambiguities created by competing social-science met-rics, would be anyone’s guess.

18

Br. 9 (citation omitted). In fact, Gaddie projected that

Democrats would win an Assembly majority under

Act 43 with just over 53% of the vote, and Democrats

won 54% in 2006 and 2008. Appellants’ Br. 57–58.

Dr. Gaddie further estimated that if Democrats won

54% of the vote, they would win 53 out of 99 Assembly

seats under Act 43, almost perfect proportionality.

SA339. In 2006, Democrats won more than 54% of the

two-party vote, which netted them just 47 seats under

the immediately prior court-drawn map; in 2008, they

won 54% of the vote, this time obtaining 53 seats un-

der that same map (the exact number of seats that

Gaddie’s swing analysis projected them to win under

Act 43). Appellants’ Br. 13; SA339. Plaintiffs offer no

explanation why these facts and Gaddie’s swing anal-

ysis could not reasonably have led a different court to

uphold Act 43 as lawful.

In light of the indeterminacy of Plaintiffs’ test, it

would be exceedingly difficult for legislatures to pro-

tect against inevitable, costly, and uncertain law-

suits.6 Take, for example, the task facing the

Wisconsin Legislature in 2011. The prior court-

drawn map had efficiency gaps of 7%, 10%, and 12%

favoring Republicans in its first three elections.

JA223–24. If the Legislature drew its map in “the

6 That is, unless the legislature accepted Plaintiffs’ not-so-

subtle suggestion of delegating its sovereign responsibility of

drawing district maps to a nonpartisan commission. Appellees’

Br. 54–55. Even then, plaintiffs would argue that the commis-sion had been captured by partisans. Texas Amicus Br. 15.

19

most neutral way [a federal court] could conceive”—

“adjusting” the prior map for “population deviations,”

Baumgart v. Wendelberger, Nos. 01-C-121, 02-C-366,

2002 WL 34127471, at *7 (E.D. Wis. May 30, 2002)—

this new map would almost certainly have been un-

lawful under Plaintiffs’ test. Appellants’ Br. 38.

Plaintiffs point out that the Legislature could have

used symmetry metrics to draft a map more Demo-

crat-friendly than the prior court-drawn map. Appel-

lees’ Br. 54. This “nonpartisan statesmanship”

mandate, J.S. App. 245a, is something that no State’s

laws require and for which the Constitution offers no

support. But even such unprecedented efforts would

not necessarily protect the map from a costly lawsuit.

It is undisputed that under a uniform swing analysis,

Plaintiffs’ Demonstration Plan would have yielded

Republicans 63 seats on 52% of the vote in 2014, a re-

sult identical to the one that obtained in 2014 under

Act 43. Appellants’ Br. 65–66. Such an asymmetrical

election result would surely have led to an immediate,

uncertain lawsuit by Democrat partisans.

Finally, Plaintiffs’ test systematically favors

Democrat-controlled legislatures, Appellants’ Br. 50–

51, a fact that is obvious from the uniform partisan

breakdown of the States in this case, compare Texas

Amicus Br. (16 Republican Attorneys General speak-

ing for their States and supporting Defendants), with

Oregon Amicus Br. (16 Democrat Attorneys General

20

and one Independent Attorney General speaking for

their States and supporting Plaintiffs).7

A principal reason for the severe political bias of

Plaintiffs’ test is that many Democrats today have

chosen to cluster in cities. The district court, J.S. App.

203a, and amici from both sides, see Wisconsin State

Senate and Assembly Amicus Br. 31–37; Professor

Best Amicus Br. 12, agree than political geography fa-

vors Republicans, creating natural asymmetry. So

when Republican-controlled legislatures move dis-

trict lines for partisan ends, their symmetry scores

will be far worse than those generated by Democrat-

controlled legislatures engaging in the same activity

for the same ends; Republicans’ plans will score as ne-

fariously increasing natural asymmetries, whereas

Democrats’ plans will score as benignly cancelling

them out. SA131–41. That is presumably why Illi-

nois could join Oregon’s brief without much concern.

Although Plaintiffs’ amici criticize Illinois’ frequent

pro-Democrat redistricting, Represent.Us Amicus Br.

8–10; Current and Former State Legislators Amicus

Br. 1; McCain and Whitehouse Amicus Br. 10–11, the

State’s political geography ensures that its legisla-

ture’s partisan maps will score well on symmetry met-

rics, SA253; SA137–38; see generally National

Republican Congressional Committee Amicus Br. 10–

7 Notably, individual politicians nominally supporting

Plaintiffs declined to grapple with the specifics of Plaintiffs’ test.

See, e.g., Bipartisan Group of Current and Former Members of Congress Amicus Br. 34 n.58 (“no position” on Plaintiffs’ test).

21

14 (discussion and charts of Illinois Democrats’ dis-

tricting).

That is also why Plaintiffs’ Demonstration Plan—

an obviously partisan plan designed to reverse-engi-

neer 13 pro-Democrat Assembly districts under 2012

conditions, Appellants’ Br. 65–66—still had an effi-

ciency gap favoring Republicans in 2012. SA71–72,

308–09. Plaintiffs’ expert, for example, divided up the

cities of Fond du Lac and Oshkosh in a manner far

more problematic than any of the belated Act 43 ex-

amples that Plaintiffs can muster. Supra p. 3 n.1.

The Demonstration Plan’s approach to this area is re-

produced on the left; Act 43’s is reproduced on the

right:

22

Dkt. 149:103–106; Defs. Ex. 520 (interactive map;

also available at http://arcg.is/0TTPeS); SA361 (inter-

active map).

Plaintiffs are thus simply wrong when they assert

that pro-Republican gaps are “entirely attributable to

more plans being enacted by state governments under

unified Republican control.” Appellees’ Br. 52. Ac-

cording to Jackman, Plaintiffs’ own expert, the shift

in efficiency gaps towards Republicans started in the

mid-1990s, when Republicans controlled only two of

the 41 States in the dataset. Dkt. 149:251–53; SA225.

And the average gap in Republicans’ favor was virtu-

ally unchanged from 2000 to 2014, a period during

which Republicans took control over legislatures in

many States. Dkt. 149:253–55; SA225. Jackman also

found that since the 1990s, efficiency gaps favor Re-

publicans and that, conversely, “few plans” today

“generat[e] large, pro-Democratic” gaps. SA238.

Surely, a legal test so obviously politically one-sided

“cannot promise political neutrality.” Vieth, 541 U.S.

at 308 (Kennedy, J., concurring in the judgment).

IV. Act 43 Is Lawful Because It Complies With

Traditional Redistricting Principles

Act 43 complies with traditional redistricting

principles, which means that the plan is not a parti-

san gerrymander according to both the historical un-

derstanding of that term and the views of the majority

of Justices in Vieth who would recognize such claims.

Appellants’ Br. 59–61. Definitively holding that a

23

plan that complies with these principles is not an un-

lawful political gerrymander would be a sensible ap-

proach. Appellants’ Br. 59–62. At the very minimum,

Act 43 is lawful because it complies with these crucial

principles and is similar on these principles, district

shapes, and results to the immediately prior court-

drawn map. Appellants’ Br. 63–66.

In their response brief, Plaintiffs do not meaning-

fully dispute that Act 43 is consistent with the prior

court-drawn map on traditional redistricting princi-

ples, district shapes, or results. And while Plaintiffs

assert that Act 43 departs from some traditional prin-

ciples, Appellees’ Br. 59, those arguments are waived

and meritless. At trial, Plaintiffs offered no evidence

that even a single district failed to comply with these

principles. J.S. App. 250a–51a. And Act 43 has better

population deviation than the two most recent court-

drawn plans, contains a number of municipal splits

falling between those two plans, and has a miniscule

variance in compactness from the immediately prior

court-drawn plan. JA214–15. While Plaintiffs now

complain about Act 43’s pairings of incumbents and

core retention, their own Demonstration Plan fared

significantly worse on these same criteria. See Dkt.

149:112–17; Defs. Ex. 520 (interactive map).8

8 Act 43 has also survived all previous legal challenges, ex-

cept for one under the Voting Rights Act, in which the district

24

Given that they have no serious argument that

Act 43 fails to comply with traditional redistricting

principles, Plaintiffs’ position is that such principles

should, in effect, be irrelevant in this context.

Plaintiffs misrepresent this Court’s precedent by

claiming that this Court has already rejected Defend-

ants’ argument regarding traditional redistricting

principles. Appellees’ Br. 56. In fact, of the Justices

who would have entertained partisan-gerrymander-

ing claims in Vieth, a majority unambiguously ex-

plained that a plan that complies with such principles

is not unlawful. Appellants’ Br. 59–60. Nor has this

Court “repeatedly rebuffed” Defendants’ arguments

in light of its racial-gerrymandering caselaw. Appel-

lees’ Br. 58. A plan that complies with traditional re-

districting principles and yet is still predominantly

motivated by race raises the most serious constitu-

tional concerns, Bethune-Hill v. Va. State Bd. of Elec-

tions, 137 S. Ct. 788, 799 (2017), whereas politics are

“inevitabl[e]” in the redistricting process, Gaffney v.

Cummings, 412 U.S. 735, 753 (1973).

Importantly, while this Court has recognized that

compliance with traditional redistricting principles

typically plays an important role in racial-gerryman-

dering litigation, compliance with these principles

court held that Latino voters would be better served by “one ma-

jority-minority district than with two influence districts.” Bal-

dus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 856 (E.D. Wis. 2012).

25

would never matter under Plaintiffs’ test, at least

when the map was drawn by a legislature controlled

by one party. In the racial-gerrymandering context,

“this Court to date has not affirmed a predominance

finding, or remanded a case for a determination of

predominance, without evidence that some district

lines deviated from traditional principles.” Bethune-

Hill, 137 S. Ct. at 799. Under the first prong of Plain-

tiffs’ political-gerrymandering test, however, partisan

intent will generally be present whenever the map is

drawn by a legislature. Supra p. 14. The second

prong deals only with a grab bag of social-science met-

rics. Supra p. 15. And the legislature would not be

able to rely upon its compliance with traditional re-

districting principles to justify its plan under Plain-

tiffs’ third prong, because it will always be possible to

draw a different map that complies with traditional

redistricting principles just as well. Supra pp. 14–15.

While Plaintiffs worry that Defendants’ approach

will lead to “false positives” or “false negatives,” Ap-

pellees’ Br. 58, that concern is unwarranted. There

will be no false positives because Defendants are not

suggesting that noncompliance with these principles

should be “the basis for relief.” Vieth, 541 U.S. at 308

(Kennedy, J., concurring in the judgment). As for

false negatives, Defendants’ position is that compli-

ance with these principles negates the notion of a par-

tisan gerrymander, as that term has been historically

understood. Appellants’ Br. 59–62. But to the extent

that this Court were to disagree with that proposition

as a bright-line rule, it should at least require that

26

any legal test give traditional redistricting principles

a central role, whereas Plaintiffs’ approach makes

compliance with these principles immaterial.

* * *

More generally, Plaintiffs and their amici are

wrong when they argue that the existence of compu-

ting power and the nature of modern politics justify

this Court creating an unprecedented statewide polit-

ical-gerrymandering cause of action. Four decades

ago, this Court observed that because “voting records

are available precinct by precinct, ward by ward,” “it

requires no special genius to recognize the political

consequences of drawing a district line along one

street rather than another.” Gaffney, 412 U.S. at 753.

Justice Powell in Bandemer discussed how the legis-

lature there used a “private computer firm” with “in-

formation fed into the computer [that] primarily

concerned the political complexion of the State’s pre-

cincts.” 478 U.S. at 162. And Justice Kennedy in Vi-

eth noted the ability of legislative staffers to use

“[c]omputer assisted districting” to quickly draw

maps. 541 U.S. at 312. While using computers to for-

ward partisan ends is nothing new, political gerry-

mandering is much older still. Appellants’ Br. 5–10.

Plaintiffs’ own evidence at trial refutes their

claims that redistricting maps have become more

asymmetrical in recent times. Appellees’ Br. 21–23.

The only record evidence that Plaintiffs cite shows

that the 50th quantile efficiency gap barely changed

27

between 1972 and 2014, while the 75th quantile was

higher (more assymetrical) in 1972 than in 2014.

SA227. The oft-repeated falsehood that principles of

prudence and restraint must be cast aside because to-

day’s practices are somehow worse than those of the

past is a sure prescription for a “remedy[ ] that [ ] is

worse than the disease.” The Federalist No. 10, at 53

(James Madison) (George Stade ed., 2006).

CONCLUSION

The district court’s judgment should be reversed.

Respectfully submitted,

BRAD D. SCHIMEL

Attorney General

MISHA TSEYTLIN

Solicitor General

Counsel of Record

KEVIN M. LEROY

Deputy Solicitor

General

State of Wisconsin

Department of Justice

17 West Main Street

Madison, WI 53703

tseytlinm@doj.state.wi.us

(608) 267-9323

RYAN J. WALSH

Chief Deputy

Solicitor General

AMY C. MILLER

Assistant Solicitor

General

BRIAN P. KEENAN

Assistant Attorney

General

September 2017

CLASH BETWEEN THE CLAUSES

Religion Cases at the US Supreme CourtIn the 2016 and 2017 Terms

DCBA Mega Meeting, Lisle, IllinoisFebruary 3, 2018

THE LAW OFFICE OF LOFGREN & WENTWORTH, P.C.THE ENTREPRENEUR’S LEGAL RESOURCE

SM

536 Crescent Blvd. Suite 200, Glen Ellyn, IL 60137Tel: (630) 469-7100 | Fax: (630) 469-7108

www.elrlaw.com

Disclaimer

This presentation provides general information regarding particular

subjects, and is not intended to constitute legal advice. The hypotheticals

described here are just that—hypothetical—and should not be taken as an

indication of a particular result in a future case. Each situation must be

evaluated on its own merits, and your particular situation may be different

than those presented here as examples. Attending this presentation does

not constitute a contract for legal advice and does not establish an

attorney-client relationship. By participating in this presentation, you are

not and do not become a client of L&W. Rather, entering into an attorney-

client relationship is a mutual agreement, requiring the exchange of

information and the execution of an engagement letter between the client

and L&W. Do not disclose or send any confidential or sensitive

information to L&W until a formal attorney-client relationship has been

established. If you are interested in retaining L&W as your counsel, please

contact L&W directly to schedule a meeting with one of our attorneys.

LOFGREN & WENTWORTH, P.C.

Thanks!

Thanks to Professor Fred Gedicks of the Brigham Young

University Law School for his allowing me to use the two

slides at the end of the presentation. Those were originally

used at a presentation he gave on June 14, 2017, at a meeting

of the Chicago Chapter of the J. Reuben Clark Law Society.

LOFGREN & WENTWORTH, P.C.

First Amendment

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress

of grievances.

LOFGREN & WENTWORTH, P.C.

Blaine Amendment

“No State shall make any law respecting an establishment of

religion, or prohibiting the free exercise thereof; and no money

raised by taxation in any State for the support of public schools, or

derived from any public fund therefor, nor any public lands

devoted thereto, shall ever be under the control of any religious

sect; nor shall any money so raised or lands so devoted be divided

between religious sects or denominations.”

Passed in the House but not the Senate.

Adopted in 38 states—mini-Blaine Amendments.

LOFGREN & WENTWORTH, P.C.

Employment Division v. Smith and RFRA

• Native American fired for using peyote; applies for

unemployment benefits.

• Denied because firing was for drug use.

• Justice Scalia’s majority opinion says that neutral and generally

applicable statutes and regulations do not trigger strict scrutiny.

• But an exception for hybrid claims.

• Congress responds by passing RFRA.

• City of Boerne v. Flores—Ok as to Federal statutes, invalidated

as to State and Local.

• Congress responds with RLUIPA.

• States respond with mini-RFRAs.

LOFGREN & WENTWORTH, P.C.

Church of Lukumi v. Hialeah

• Ordinance prohibiting animal sacrifice. Reports of City Council

making statements specifically targeting the Church.

• SCOTUS held that the ordinances were neither neutral nor

generally applicable and thus had to be justified by a compelling

governmental interest and narrowly tailored to that interest.

• The core failure of the ordinances were that they applied

exclusively to the church. The ordinances singled out the

activities of the Santeria faith and suppressed more religious

conduct than was necessary to achieve their stated ends. Only

conduct tied to religious belief was burdened. The ordinances

targeted religious behavior, therefore they failed to survive the

rigors of strict scrutiny.

LOFGREN & WENTWORTH, P.C.

Missouri Constitution

“That no money shall ever be taken from the public treasury, directly or indirectly,

in aid of any church, sect or denomination of religion, or in aid of any priest,

preacher, minister or teacher thereof, as such; and that no preference shall be given

to nor any discrimination made against any church, sect or creed of religion, or any

form of religious faith or worship.” Missouri Const. Art. I, § 7.

“Neither the general assembly, nor any county, city, town, township, school district

or other municipal corporation, shall ever make an appropriation or pay from any

public fund whatever, anything in aid of any religious creed, church or sectarian

purpose, or to help to support or sustain any private or public school, academy,

seminary, college, university, or other institution of learning controlled by any

religious creed, church or sectarian denomination whatever; nor shall any grant or

donation of personal property or real estate ever be made by the state, or any county,

city, town, or other municipal corporation, for any religious creed, church, or

sectarian purpose whatever.” Missouri Const. Art. IX, § 8

LOFGREN & WENTWORTH, P.C.

Trinity Lutheran Church v. Comer

Trinity Lutheran is not claiming any entitlement to a subsidy. It

instead asserts a right to participate in a government benefit program

without having to disavow its religious character. The “imposition of

such a condition upon even a gratuitous benefit inevitably deter[s] or

discourage[s] the exercise of First Amendment rights.” The express

discrimination against religious exercise here is not the denial of a

grant, but rather the refusal to allow the Church—solely because it is

a church—to compete with secular organizations for a grant. Trinity

Lutheran is a member of the community too, and the State’s

decision to exclude it for purposes of this public program must

withstand the strictest scrutiny.

LOFGREN & WENTWORTH, P.C.

Masterpiece Cakeshop v. Colorado

• Gay couple comes into Masterpiece Cakeshop seeking wedding

cake.

• Baker says he doesn’t believe in gay marriage because of his

religious beliefs and will not sell them a custom cake. Offers to

sell them any other cake in the store.

• Colorado Human Rights Commission finds baker discriminated

against them and orders him to, among other things, conduct

training for his employees (who are also his family members)

that they cannot discriminate.

LOFGREN & WENTWORTH, P.C.

Masterpiece Cakeshop v. Colorado

Quotes from the Colorado Human Rights Commission:

• I would also like to reiterate what we said in the hearing or the last

meeting. Freedom of religion and religion has been used to justify all

kinds of discrimination throughout history, whether it be slavery,

whether it be the [H]olocaust, whether it be–I mean, we–we can list

hundreds of situations where freedom of religion has been used to

justify discrimination. And to me it is one of the most despicable

pieces of rhetoric that people can use to–to use their religion to hurt

others.

• [O]ne’s opposition to same-sex marriage is discrimination.

LOFGREN & WENTWORTH, P.C.

Masterpiece Cakeshop v. Colorado

Question Presented:

Whether applying Colorado’s public accommodation law to compel

artists to create expression that violates their sincerely held religious

beliefs about marriage violates the Free Speech or Free Exercise

Clauses of the First Amendment.

This presentation focusses primarily on the Free Exercise claim.

LOFGREN & WENTWORTH, P.C.

Justice Breyer

Justice Breyer:

What people are trying to do with exceptions is take genuine, sincere

religious views or whatever it is, and minimize the harm it does to the

principle of the statute while making some kind of compromise for people of

sincere beliefs on the other side. And we find that in a lot of cases, that’s

primarily a legislative job. And my impression of this is there wasn’t much

effort here in Colorado to do that.

Counsel for Colorado:

Your Honor, I don’t agree that Colorado hasn’t taken very seriously the rights

of those who wish to practice their faith. I urge you to read the legislative

history that culminated in literally 10 years of debate about how to deal with

this question. And what the legislature decided after hearing from the faith

community, was make an exception for places of worship and other

exceptions.

LOFGREN & WENTWORTH, P.C.

Justice Sotomayor

Petitioner’s Counsel:

Justice Sotomayor, I think that the gravest offense to the First

Amendment would be to compel a person who believes that marriage

is sacred, to give voice to a different view of marriage and require

them to celebrate that marriage.

Justice Sotomayor:

Then don’t participate in weddings, or create a cake that is neutral, but

you don’t have to take and offer goods to the public and then choose

not to sell to some because of a protected characteristic. That’s what

the public anti-discrimination laws require.

LOFGREN & WENTWORTH, P.C.

Chief Justice Roberts

Chief Justice Roberts:

Assume Catholic Legal Services provides pro bono help to the public.

It’s not primarily religious. It’s primarily legal. It’s provided to all

faiths. They have taken every other customer to date, except this is the

first time someone has come in and wants legal services in connection

with a same-sex marriage and they say we’re not going to do it

because, as a religious matter, we’re opposed to same-sex marriage.

Counsel for Colorado:

Your Honor, I think if they were operating like a retail store like that,

then Colorado would have the ability to regulate them.

LOFGREN & WENTWORTH, P.C.

Justice Alito

Justice Alito:

Weddings have become so elaborate, that there are services that will write custom

wedding vows for you and custom wedding speeches. So somebody says: You know,

we’re not good with words, but we want you to write wedding vows for our wedding,

and the general idea we want to express is that we don’t believe in God, we think

that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a

better place. And the person who’s writing this is religious and says: I can’t lend my

own creative efforts to the expression of such a message. But you would say, well, it’s

too bad because you’re a public accommodation.

Respondent’s Counsel:

I think the principle would have to be some amendment to Smith to say that even

where there’s a generally applicable law, and even where it’s neutrally applied, if it

has the effect of compelling somebody to engage in a religious ceremony that is

against their deep religious commitment, we might treat that differently, but under

current law that would not be the result under Smith.

LOFGREN & WENTWORTH, P.C.

Justice Kennedy

Suppose we thought that in significant part at least one member of the

Commission based the commissioner’s decision on the grounds of

hostility to religion. Could your judgment then stand?

***

Counselor, tolerance is essential in a free society. And tolerance is

most meaningful when it’s mutual. It seems to me that the state in its

position here has been neither tolerant nor respectful of Mr. Phillips’s

religious beliefs.

LOFGREN & WENTWORTH, P.C.

z

Freedom for Religion

Freedom From Religion

Government

For-Profit Housing& Employment

PublicAccommodations

Religious Non-Profit Activities

ReligiousWorship &

Governance

18

A Map of Religious Liberty

Private Religious Space

A Core of Powerfully Protected Freedom for

Religion

Public Secular Space

A Periphery of Powerfully Protected Freedom from

Religion

Hybrid Private/Public Spaces

A Contested Middle of Freedom for Religion and

Freedom from Religion

19

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CHARLES G. WENTWORTH

536 Crescent Blvd. Suite 200, Glen Ellyn, IL 60137Tel: (630) 469-7100 | Fax: (630) 469-7108

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Charles G. Wentworth cwentworth@elrlaw.com Tel: (630) 469-7100 Fax: (630) 469-7108

Practice Areas Appellate Litigation Business Planning and Litigation Condominium Association Law Contract Drafting and Litigation Copyrights and Trademarks Employment Advice and Litigation Leases, Mortgages, and Mech. Liens Wills, Trusts, and Probate

Admissions & Qualifications: Illinois State Courts Northern District of Illinois Seventh Circuit Court of Appeals Ninth Circuit Court of Appeals United States Supreme Court

Prior Experience: Kirkland & Ellis LLP Wentworth Law Offices P.C.

Business Experience: Director & VP, McMillan Land Co.

Clerkship: Chief Justice John T. Broderick, Jr.

New Hampshire Supreme Court

Education: S.J. Quinney College of Law, University of Utah, J.D.

Order of the Coif Law Review Staff Editor Moot Court Team

University of Utah, Honors B.A.

Language: Spanish (fluent)

Background Charles attended law school at the University of Utah where he was a legal-writing teaching assistant and participated in moot court and law review. After graduation, he clerked for Chief Justice John Broderick of the New Hampshire Supreme Court before becoming a commercial litigation associate at Kirkland & Ellis LLP.

Charles then opened his own office, focusing his practice on business, employment, and property law and litigation; wills, trusts, and probate; copyrights, and trademarks. His clients include business owners and their companies, commercial and residential landlords and tenants, condominium associations, employees, and contractors. He recently joined offices with Richard J. Lofgren to form The Law Office of Lofgren & Wentworth, P.C., The Entrepreneur’s Legal ResourceSM. Charles is also very active in the Illinois State and DuPage County Bar Associations, where he often lectures and writes about the law.

Business and Personal Planning and Litigation Charles handles a variety of business and personal matters for his clients:

Won trial against client’s former commercial tenant for unpaid rent, and handling multiple other commercial landlord-tenant disputes and evictions.

Successfully vacated $472,000 federal-court judgment against client on motion to reconsider challenging the court’s jurisdiction.

Advised client on how to move forward in purchase of a dental practice.

Prosecuted two multi-million-dollar commercial mortgage foreclosures, including having a receiver appointed and defending mechanics-lien claims.

Drafted professional-services contract for client hiring bookkeeper.

Advised not-for-profit company on how to limit liability for directors.

Defended nation-wide publishing company against $2.7 million breach-of-contract and fraudulent-transfer claims.

Wrote will and special-needs trust for client and child who had a disability.

Successfully defended client against claims of breach of non-compete agreement in litigation brought by client’s former employer.

Negotiated settlement of dispute related to sale of client’s company.

Successfully represented condominium unit owners in proxy fight, resulting in their election to the Association’s board of directors.

Represented business leader as amicus curiae before United States Supreme Court in support of granting appellant’s cert petition.

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