In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

ROBERT A. RUCHO, et al.,Appellants,

v.

COMMON CAUSE, et al., Appellees.

On Appeal from the United States District Courtfor the Middle District of North Carolina

Brief of Speaker Michael C. Turzai, in HisOfficial Capacity as Constitutional Officer of the

Pennsylvania House of Representatives, asAmicus Curiae in Support of Appellants

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

E. MARK BRADEN

Counsel of RecordKATHERINE L. MCKNIGHT

RICHARD B. RAILE

BAKER & HOSTETLER LLP1050 Connecticut Ave., N.W.Suite 1100Washington, D.C. 20036(202) 861-1500mbraden@bakerlaw.com

PATRICK T. LEWIS

BAKER & HOSTETLER LLPKey Tower127 Public Square, Suite 2000Cleveland, OH 44114(216) 621-0200plewis@bakerlaw.com

NO. 18-422

KATHLEEN A. GALLAGHER

RUSSELL D. GIANCOLA

CAROLYN BATZ MCGEE

PORTER WRIGHT MORRIS

& ARTHUR LLPSix PPG PLACEThird FloorPittsburgh, PA 15222(412) 235-4500kgallagher@porterwright.com

ROBERT J. TUCKER

BAKER & HOSTETLER LLP200 Civic Center DriveSuite 1200Columbus, OH 43215-4138(614) 228-1541rtucker@bakerlaw.com

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Whether plaintiffs’ partisan-gerrymandering claimsare justiciable.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICUS CURIAE . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT . . . . . . . . . . 2

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

I. The Elections Clause Contains No JudiciallyDiscernable Standard To Govern Partisan-Gerrymandering Claims . . . . . . . . . . . . . . . . . 8

A. The Elections Clause Is Not a Source ofJudicial Standards . . . . . . . . . . . . . . . . . . 8

B. The Elections Clause Inquiry Is Limitedto Whether, on Its Face, LegislationRegulates Election Procedure, as EveryRedistricting Plan Does . . . . . . . . . . . . . 12

II. The Elections Clause Deprives Courts ofAuthority To Supervise PoliticalConsiderations . . . . . . . . . . . . . . . . . . . . . . . 17

III. Judicial Redistricting Is PoliticalRedistricting . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

iii

TABLE OF AUTHORITIES

CASES

Agre v. Wolf, 284 F. Supp. 3d 591 (E.D. Pa. 2018) . . . . . . . . . 24

Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) . . . . . . . . . . . . . . . . . . . . 29

Ariz. State Leg. v. Ariz. Indep. RedistrictingComm’n, 135 S. Ct. 2652 (2015) . . . . . . . . . . . . . . . . . 13, 36

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

Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70 (2000) . . . . . . . . . . . . . . . . . . . . . . . 18

Colegrove v. Green, 328 U.S. 549 (1946) . . . . . . . . . . . . . . . . . . . . . . . 8

Common Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018) . . . . passim

Cook v. Gralike, 531 U.S. 510 (2001) . . . . . . . . . . . . . . . . . . passim

Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) . . . . . . . . . . . . . . . . . . . . . . 15

Davids v. Akers, 549 F.2d 120 (9th Cir. 1977) . . . . . . . . . . . . . . . 27

Davis v. Bandemer, 478 U.S. 109 (1986) . . . . . . . . . . . . . . . . . . . . . . 30

Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002) . . . . . . . . . . . . . . . . . . . 32

iv

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

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) . . . . . . . . . . . . . . . 14

Gaffney v. Cummings, 412 U.S. 735 (1973) . . . . . . . . . . . . . . . 2, 9, 17, 31

Gill v. Whitford, 138 S. Ct. 1916 (2018) . . . . . . . . . . . . . . . . . . . . 30

Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . 27

Hawke v. Smith, 253 U.S. 221 (1920) . . . . . . . . . . . . . . . . . . . . . . . 6

Holder v. Hall, 512 U.S. 874 (1994) . . . . . . . . . . . . . . . . . . . 19, 21

Holt v. 2011 Legis. Reapportionment Comm’n, 67 A.3d 1211 (Pa. 2013) . . . . . . . . . . . . . . . . . . . 32

Hunt v. Cromartie, 526 U.S. 541 (1999) . . . . . . . . . . . . . . . . . . . 13, 14

Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . . . . . . . . . . . . . . 13

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) . . . . . . . . . . . . . . . . . . . . . . . 6

League of Women Voters of Michigan v. Johnson, 2018 WL 2335805 (E.D. Mich. May 23, 2018) . 24

League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018) . . . . . . . . . . . . . . . . . . . 32

v

McCray v. United States, 195 U.S. 27 (1904) . . . . . . . . . . . . . . . . . . . . . . . 14

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) . . . . . . . . . . . . . . 13

McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Miller v. Johnson, 515 U.S. 900 (1995) . . . . . . . . . . . . . . . . . . . . 3, 29

Nixon v. United States, 506 U.S. 224 (1993) . . . . . . . . . . . . . . . . . . . . . . 22

Ohio A. Philip Randolph Inst. v. Larose, --Fed. App’x--, 2019 WL 259431 (6th Cir.Jan. 18, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Perry v. Perez, 565 U.S. 388 (2012) . . . . . . . . . . . . . . . . . . . . . . 25

Polish Nat’l All. of the U.S. of N. Am. v. N.L.R.B., 322 U.S. 643 (1944) . . . . . . . . . . . . . . . . . . . . . . 18

Reno v. Bossier Par. Sch. Bd., 528 U.S. 320 (2000) . . . . . . . . . . . . . . . . . . . . . . 19

Reynolds v. Sims, 377 U.S. 533 (1964) . . . . . . . . . . . . . . . . . 2, 29, 30

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . 27

Smiley v. Holm, 285 U.S. 355 (1932) . . . . . . . . . . . . . . . . . . 6, 9, 13

Sonzinsky v. United States, 300 U.S. 506 (1937) . . . . . . . . . . . . . . . . . . . . . . 14

vi

Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) . . . . . . . . . . . . . . . . . . . . . . 27

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) . . . . . . . . . . . . . . . . . . passim

Upham v. Seamon, 456 U.S. 37 (1982) . . . . . . . . . . . . . . . . . . . . . . . 25

Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir. 1982) . . . . . . . . . . . . . 27

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

Washington v. Davis, 426 U.S. 229 (1976) . . . . . . . . . . . . . . . . . . . . . . 14

Wesberry v. Sanders, 376 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . 27

White v. Weiser, 412 U.S. 783 (1973) . . . . . . . . . . . . . . . . . . . . . . 25

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012) . . . . . . . . . . . . . . . . . . . . . . 20

CONSTITUTION

U.S. Const. art. I, § 4, cl. 1 . . . . . . . . . . . . . . . . 2, 6, 7

STATUTES

52 U.S.C. § 10301(b) . . . . . . . . . . . . . . . . . . . . . . . . 29

RULES

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii

OTHER AUTHORITIES

William Blackstone, Commentaries (George Tuckered., 1803) . . . . . . . . . . . . . . . . . . . . . . . . 11, 23, 29

Nate Cohn et al., The New PennsylvaniaCongressional Map, District by District, N.Y.Times: The Upshot (Feb. 19, 2018),https://www.nytimes.com/interactive/2018/02/19/upshot/pennsylvania-new-house-districts-gerrymandering.html . . . . . . . . . . . . . . . . . . . . . 35

E. Coke, Institutes of Laws of England (Brooke, 5thed. 1797) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Editorial Bd., North Carolina’s Gerrymander Coup:Liberal Judges Hijack Redistricting To Abet aDemocratic House, Wall Street J., Aug. 30, 2018, https://www.wsj.com/articles/north-carolinas-gerrymander-coup-1535670476 . . . . . . . . . . . . . 37

The Federalist No. 59 (Hamilton) (Jacob Cooke ed.,1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

The Federalist No. 78 (Hamilton) (Jacob Cooke ed.,1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Get to Know the Candidates for State SupremeCourt, Lancaster Online (Oct. 31, 2015),http://lancasteronline.com/news/local/get-to-know-the-candidates-for-state-supreme-court/article_65c426d4-6d45-11e5-b74f-6babb36c03bb.html . . . . . . . . . . . . . . . . . . . . . . 34

Rudolf Gneist, The English Parliament in ItsTransformations Through a Thousand Years (R.Jenery Shee trans., 1886) . . . . . . . . . . . . . . . . . 10

viii

Eric Holmberg, Forums Put Spotlight on PASupreme Court Candidates, PUBLICSOURCE(Oct. 22, 2015), www.publicsource.org/forums-put-spotlight-on-pa-supreme-court-candidates 33

Leonard Woods Labaree, Royal Government inAmerica: A Study of the British Colonial SystemBefore 1783 (Yale University Press 2d prtg.1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Media Mobilizing Project, Neighborhood NetworksSupreme Court of PA Forum, YouTube (Apr. 25,2 0 1 5 ) , h t t p s : / / w w w . y o u t u b e .com/watch?v=713tnbv55mU&feature= youtu.be

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Thomas Pitt Taswell-Langmead, EnglishConstitutional History (Philip A. Ashworth ed.,6th ed. 1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

George Philips, Lex Parliamentaria (1689) . . . . . . 23

Records of the Federal Convention of 1787 (MaxFarrand ed., 1911) . . . . . . . . . . . . . . . . . . . . . . . . 7

Scarnati Issues Statement on PA Supreme CourtJustices Wecht & Donohue, Senator Joe ScarnatiPennsylvania’s 25th District (Feb. 2, 2018),h t t p s : / / w w w . s e n a t o r s c a r n a t i . c o m /2018/02/02/scarnati-issues-statement-pa-supreme-court-justices-wecht-donohue/ . . . . . . 34

Joseph Story, Commentaries on the Constitution ofthe United States (1st ed. 1833) . . . . . . . . . 11, 22

ix

Sean Trende, How Much Will Redrawn Pa. MapAffect the Midterms?, Real Clear Politics (Feb.20, 2018), https://www.realclearpolitics.com/articles/2018/02/20/how_much_will_redrawn_pa_map_affect_the_midterms_136319.html . . . 36

1

INTEREST OF THE AMICUS CURIAE

Representative Michael Turzai is the Speaker of thePennsylvania House of Representatives and files thisbrief in his official capacity. He, like all statelegislators, is interested in seeing the Constitution’sdelegation of federal-election-law authority to statelegislatures honored against the position, adoptedbelow, that courts should supervise legislatures’political discretion and deliberative processes.Pennsylvania was ground zero in 2018 for so-calledpart isan-gerrymandering l i t igat ion. TheCommonwealth faced three simultaneous challenges,won two trial victories, and spent an enormous sum inlegal fees defending the congressional redistrictinglegislation it enacted under the Constitution’s expressgrant of authority—and with bipartisan support. Thiseffort proved unavailing because the PennsylvaniaSupreme Court, overruling decades of precedent, struckdown the challenged plan and implemented its own, allat breakneck speed for the transparent purpose ofinfluencing the 2018 elections for Democratic Partygain. This experience shows why partisan-gerrymandering claims should be ruled non-justiciable.1

1 Pursuant to Rule 37.6, counsel for the amicus certifies that nocounsel for any party authored this brief in whole or in part andthat no person or entity other than the amicus or his counsel madea monetary contribution intended to fund the brief’s preparationor submission. Letters from the parties consenting to the filing ofamicus briefs are filed with the clerk.

2

INTRODUCTION AND SUMMARY OF THE ARGUMENT

When the constitutional framers delegated thepower to prescribe “[t]he Times, Places and Manner of”congressional elections to “the Legislature” of eachstate and to “Congress,” U.S. Const. art. I, § 4, cl. 1,they knew they were delegating that power to politicalactors. Those bodies are—no less then thannow—composed of politicians, and the framersunderstood the delegation as one of “discretionarypower over elections.” The Federalist No. 59, at 398(Hamilton) (Jacob Cooke ed., 1961). It was bothforeseeable and in fact foreseen that politicalconsiderations would guide that constitutionallyafforded discretion.

The district court profoundly misread this provision,known as the “Elections Clause,” by locating in it asource of judicial power to invalidate congressionalredistricting legislation it identified as too political.This could hardly be more backwards: the district courtread the Clause as denying state legislatures politicaldiscretion it plainly grants them and as granting thecourts purely political power it plainly denies them.“Politics and political considerations are inseparablefrom districting and apportionment.” Gaffney v.Cummings, 412 U.S. 735, 753 (1973). It is preciselybecause legislatures engage in politics that this Courthas repeatedly held that “redistricting is primarily amatter for legislative consideration anddetermination.” Reynolds v. Sims, 377 U.S. 533, 586(1964). Although courts certainly may reviewredistricting legislation under neutral constitutionaland statutory legal standards—and even then only

3

with “extraordinary caution,” Miller v. Johnson, 515U.S. 900, 916 (1995)—it is implausible that theElections Clause contains “judicially discoverable andmanageable standards,” Baker v. Carr, 369 U.S. 186,217 (1962), by which a court may invalidate legislationit deems too political. That invades the very essence ofthe power the Elections Clause delegates to non-judicial bodies.

The district court confused these legislative andjudicial roles because it confused two differentinquiries. One is whether legislation enacted under theElections Clause in fact regulates the times, places, ormanner of elections—a proper question for thejudiciary. See U.S. Term Limits, Inc. v. Thornton, 514U.S. 779, 804–5 (1995). But, here, that inquiry issimple because North Carolina’s congressionalredistricting plan plainly regulates election procedureby grouping voters into districts and dictating wherethey vote. The other inquiry, the one the district courtconducted, is whether a law that does regulate electionprocedure somehow ceases to qualify under theElections Clause because of political motive. Thatinquiry is improper. Just as a congressional act thatdirectly regulates interstate commerce is no lessCommerce Clause legislation when accompanied by apolitical purpose, Elections Clause legislation is validas such simply if it sets election procedure. Courts maynot question ulterior motive or effect when assessingwhether legislation exceeds an affirmative delegationof power.

The district court’s approach to the Elections Clauseimproperly reads the judiciary into the provision, whichmakes no mention of courts (state or federal) and which

4

necessarily excludes them, as a matter of both plainlanguage and original public meaning. Because theClause contains no standard for differentiating goodfrom bad political motive, the power the court claimedis nothing but a veto power to be exercised at will andfor political results. Further, it claimed the additionalpower to replace legislation it deemed overly partisanwith its own remedial scheme. Thus, the power itultimately asserted is nothing less than the power toregulate the times, places, and manner of congressionalelections directly from the bench. If that seemsincongruous with the Constitution’s plain language,that’s because it is.

Far from establishing an independent source ofjudicial intrusion into congressional redistricting, theElections Clause forecloses judicial intervention onpolitical grounds under any constitutional provision.The Clause renders the type of question the districtcourt entertained—which, at base, is what percentageof a congressional district should comprise a politicalparty’s perceived supporters—a quintessential politicalquestion. Predicating judicial review directly onlegislatures’ political choices would disfigure theClause’s delegation beyond recognition. Unlike claimsasserting one-person, one-vote and racial-discrimination violations, this type of claim turnsdirectly on legislatures’ deliberative processes andempowers judges to wield political considerations asweapons in supervising and striking down legislativepolicy and, ultimately, replacing it with judicial policy.That a proffered reading of the First and FourteenthAmendments would authorize this “substantialintrusion into the Nation’s political life” by judges is

5

dispositive evidence against it. Vieth v. Jubelirer, 541U.S. 267, 306 (2004) (Kennedy, J., concurring).

Redistricting is political because of what it is, notbecause of who does it. Reading the courts into theElections Clause would not take politics outredistricting; it would bring politics into the courts.Pennsylvania experienced that firsthand in 2018. Aftera Democratic Party majority took hold of thePennsylvania Supreme Court and justices campaignedon the promise that, if elected, they would strike downthe Commonwealth’s congressional maps, the courtoverruled decades of precedent and imposed a so-calledremedial plan that virtually all observers recognized asa Democratic Party gerrymander—which meticulouslycounteracted the inherent geographic disadvantageDemocratic Party supporters experience due to theirconcentration in and around Philadelphia andPittsburgh. Calls for impeachment followed, as did,later, a slew of Democratic Party wins in the newdistricts. Only justices who were members of theDemocratic Party voted for this coup d'état. Bycontrast, the legislation they struck down passed withbipartisan support.

This highly publicized and disgraceful episodemanifests the very type of power struggle the ElectionsClause plainly preempts. Courts and legislaturesshould not be at loggerheads over the power to regulatecongressional elections; the Constitution expresslyresolves such disputes. The district court’s decisionignores that constitutional fact and should be reversed.

6

ARGUMENT

The Elections Clause commits power to regulateelections to “the Legislature” of each state and to“Congress,” and it denies that power to other branchesof the state and federal governments. U.S. Const. art.I, § 4, cl. 1. The term “Legislature” was “not one ‘ofuncertain meaning when incorporated into theConstitution.”’ Smiley v. Holm, 285 U.S. 355, 365(1932) (quoting Hawke v. Smith, 253 U.S. 221, 227(1920)). The word necessarily differentiates betweenthat body and the “state” of which it is but a subpart.And just as the term is “a limitation upon the state inrespect of any attempt to circumscribe the legislativepower” over federal elections, McPherson v. Blacker,146 U.S. 1, 25 (1892), the term “Congress” limits thepower the other federal branches may exert over thesame. An Article I delegation to “Congress” is not adelegation to the “judicial power of the United States”under Article III. And, the judiciary possessing (likethe other federal branches) only limited powers, theabsence of a delegation is an express denial of power.See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375, 377 (1994).2

In delegating authority to two political bodies, theClause plainly anticipates an exercise of politicaldiscretion. Vieth v. Jubelirer, 541 U.S. 267, 285 (2004)(plurality opinion) (“The Constitution clearly

2 Because the Elections Clause is the sole source of state authorityover congressional elections and that power “had to be delegatedto, rather than reserved by, the states,” Cook v. Gralike, 531 U.S.510, 522 (2001), state courts are no differently situated from theirfederal counterparts in this unique arena.

7

contemplates districting by political entities, see ArticleI, § 4, and unsurprisingly that turns out to be root-and-branch a matter of politics.”). The framers understoodthe Clause to delegate “discretionary power overelections.” The Federalist No. 59, at 398 (Hamilton)(Jacob Cooke ed., 1961). This includes the prerogativeto exercise “Will,” the power to “prescribe[] the rules bywhich the duties and rights of every citizen are to beregulated.” The Federalist No. 78, supra, at 523, 526(Hamilton). That is all the Elections Clause delegates;the framers identified no legal principle to guide“judgment,” the prerogative of courts. See id.

Discretion, of course, can be abused. The framers,no strangers to human nature, expressly recognizedthat potential. They appreciated that the power toregulate federal elections might be wielded for petty,parochial, or partisan purposes. 2 Records of theFederal Convention of 1787, at 241 (Max Farrand ed.,1911) (James Madison observing that legislaturesmight “mould their regulations as to favor thecandidates they wished to succeed”). It is even, theysaw, the power even to “annihilate” the federalgovernment itself. The Federalist No. 59, supra, at 399(Hamilton). But, as in so many constitutionalprovisions, the framers responded to these threats, notby codifying standards differentiating fair from unfairelection laws, but by setting checks and balances,dividing the power between two political branches.They delegated primary authority over congressionalelections “in each State” to “the Legislature thereof,”and empowered Congress to check that power, i.e.,“make or alter such Regulations.” The resultingprovision, the Elections Clause, placed two political

8

checks against each other, setting fire up to fight fire.See Vieth, 541 U.S. at 275–76 (plurality opinion).

It is therefore implausible that the Elections Clausesupplies “agreed upon substantive principles of fairnessin districting” or “clear, manageable, and politicallyneutral standards” for adjudicating partisan-gerrymandering claims. Vieth, 541 U.S. at 307(Kennedy, J., concurring). Rather than codify thoseprinciples, the Clause delegates power to create them.Indeed, the Elections Clause contains “a textuallydemonstrable commitment” of those precise issues “toa coordinate political department” (actually, two) andestablishes other telltale indicia of a nonjusticiablepolitical question. Baker v. Carr, 369 U.S. 86, 217(1962). Nor is there anything to recommendunprecedented judicial frolics into the “politicalthicket.”3 Inserting courts into the Elections Clausewould do far more to bring politics into the judiciarythan to remove partisanship from redistricting. TheCourt need only look to Pennsylvania’s embarrassingexperience to see why that is so.

I. The Elections Clause Contains NoJudicially Discernable Standard To GovernPartisan-Gerrymandering Claims

A. The Elections Clause Is Not a Source ofJudicial Standards

The Elections Clause does not establish substantiveprinciples of fairness; it delegates political questions topolitical actors. The Clause uses “comprehensivewords” that “embrace authority to provide a complete

3 Colegrove v. Green, 328 U.S. 549, 556 (1946).

9

code for congressional elections.” Smiley v. Holm, 285U.S. 355, 366 (1932). Nothing in the text remotelyimplies “principles of fairness” that judges may imposeagainst legislation that otherwise regulates electionsprocedure. Vieth, 541 U.S. at 307 (Kennedy, J.,concurring). To the contrary, the Clause’s plainlanguage and its location in Article I both signal thatthose choices are vested in non-judicial bodies.

In the debates over this hotly contested provision,the idea that courts might play a role in regulatingfederal elections appears to have occurred to no one.Alexander Hamilton, for example, found it axiomaticthat “there were only three ways, in which this powercould have been reasonably modified and disposed”: inthe state legislatures, in Congress, or divided betweenthe two. The Federalist No. 59, supra, at 398–99(Hamilton). That is hardly surprising, since (as noted)the framers drew a bright line between judicial andlegislative power. Redistricting is not an act of legaljudgment; it is “primarily a political and legislativeprocess.” Gaffney v. Cummings, 412 U.S. 735, 749(1973). It was not intuitive then, and is not now, thatjudges might properly wield political authority overredistricting.

The Clause’s language is no accident. The districtcourt believed that “partisan gerrymandering” was not“widespread” before 1789, which it apparently took asa license for its anti-textual interpretation. CommonCause v. Rucho, 318 F. Supp. 3d 777, 849 (M.D.N.C.2018). But the framing generation was familiar withredistricting disputes and appreciated thatgovernmental branches might vie for power over lines.For example, “the Tudor sovereigns systematically

10

pursued the policy of creating insignificantboroughs…for the express purpose of corruptlysupporting the influence of the Crown in the House ofCommons,” and the “House of Commons took the issueof writs into its own hands” after the English CivilWar. Thomas Pitt Taswell-Langmead, EnglishConstitutional History 565–66 (Philip A. Ashworth ed.,6th ed. 1905); see also Rudolf Gneist, The EnglishParliament in Its Transformations Through aThousand Years 241 (R. Jenery Shee trans., 1886)(“Now,” at the reign of Charles II, “the right of theCrown to create new boroughs disappears.”). Likewise,the royal governors exercised the right to extendrepresentation to new counties in the Americancolonies, which the colonists considered an“insufferable intrusion.” Leonard Woods Labaree, RoyalGovernment in America: A Study of the BritishColonial System Before 1783, at 98–99, 333–34 (YaleUniversity Press 2d prtg. 1934). The framinggeneration, then, knew that power to prescribe electionrules may reside somewhere other than the legislature,it knew that this may create inter-branch conflicts, andthe Elections Clause plainly preempts those conflicts.The district court’s interpretation frustrates thatpurpose.

Further, the Clause can hardly provide uniformpartisan-gerrymandering standards when it plainlyestablishes local control over, and encourages broadvariation in, election procedure. It was common groundat the ratification debates that inserting a uniformelections code directly into the Constitution wasunworkable, since it would be impossible to account for“every probable change in the situation of the country.”The Federalist No. 59, supra, at 398 (Hamilton).

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Similarly, it was uncontroversial that state legislaturesshould possess primary authority over electionsprocedure “on account of their ability to adapt theregulation, from time to time, to the peculiar local, orpolitical convenience of the states.” 2 Joseph Story,Commentaries on the Constitution of the United States§ 820 (1st ed. 1833) (“Story”). Accordingly, the idea of“empowering the United States to regulate theelections from the particular States” was universallycondemned as “an unwarrantable transposition ofpower” and “a premediated engine for the destructionof the State governments.” Id.; see also 2 Story § 812(“The objection [to the Elections Clause] was not to thatpart of the clause, which vests in the state legislaturesthe power of prescribing the times, places, and mannerof holding elections….”). In fact, the objection to anycongressional involvement in regulating elections wasanswered with the claim that Congress would proveincapable of abusing its Elections Clause authority:“[t]he interests, the habits, the institutions, the localemployments, the state of property, the genius, and themanners, of the people of the different states, are sovarious, and even opposite, that it would be impossibleto bring a majority of either house to agree upon anyplan of elections” to achieve an abusive purpose at thenational level. Id. § 818; see also 1 William Blackstone,Commentaries (“Blackstone”), app., note D at 191–92(George Tucker ed., 1803) (“[A]ny attempt to render themanner of election uniform must therefore inevitablyproduce discontents among the states.”).

Accordingly, the long-elusive “agreed uponsubstantive principles of fairness in districting,” Vieth,541 U.S. at 307 (Kennedy, J., concurring), cannot befounded in this provision. Reading them in would codify

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the very nationally applicable standards the framersdeliberately withheld. As Justice Kennedy observed inVieth, redistricting standards like “contiguity andcompactness” cannot “promise political neutrality”because “a decision under these standards wouldunavoidably have significant political effect, whetherintended or not.” Id. at 308–09. That is because “if wewere to demand that congressional districts take aparticular shape, we could not assure the parties thatthis criterion, neutral enough on its face, would not infact benefit one political party over another.” Id. at 309.What is true in the abstract is even truer whencompounded across 50 states and innumerable politicalsubdivisions. How political motive and impact becomemanifest will depend on local geography and politics.The very factors that militated against aconstitutionally prescribed elections code foreclose anyattempt to read a uniform standard of fairness into theClause.

B. The Elections Clause Inquiry Is Limitedto Whether, on Its Face, LegislationRegulates Election Procedure, as EveryRedistricting Plan Does

The district court purported to find a standardbecause it confused two distinct forms of inquiry, onelegitimate and the other illegitimate. See Rucho, 318 F.Supp. 3d at 936–41.

The legitimate inquiry is whether challengedlegislation properly falls within the Elections Clause’sexpress delegation. See U.S. Term Limits, Inc. v.Thornton, 514 U.S. 779, 804–05 (1995). That federalcourts may review legislation on this basis is wellestablished and uncontroversial—and irrelevant here.

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This role is no different from the courts’ role in policingany positive grant of authority, such as Congress’sCommerce Clause power, its spending power, and itspower to enforce the Civil War Amendments.

Because the scope of review is limited to assessingwhether the exercise is “appropriate” to that grant,Katzenbach v. Morgan, 384 U.S. 641, 651 (1966);McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421(1819), judicial review of Elections Clause legislation islimited to whether it exceeds the “‘broad power’ toprescribe the procedural mechanisms for holdingcongressional elections,” Cook v. Gralike, 531 U.S. 510,523 (2001). In particular, the Court has reviewedwhether legislation falls within those “comprehensivewords,” “Times, Places, and Manner,” Smiley, 285 U.S.at 366; see Thornton, 514 U.S. at 832–36, and whetherlegislative action was exercised by “the Legislature,”see Ariz. State Leg. v. Ariz. Indep. RedistrictingComm’n, 135 S. Ct. 2652, 2673 (2015).

A redistricting plan—every redistrictingplan—satisfies this test. Districting legislation“classifies tracts of land, precincts or census blocks,”Hunt v. Cromartie, 526 U.S. 541, 547 (1999), andclearly sets the “Places” and “Manner” of elections. Itassigns voters to districts and representatives anddictates where they vote. Under the correct inquiry,North Carolina’s districts plainly qualify.

The district court could conclude otherwise onlybecause it conducted a separate, improper inquiry intolegislative motive, adjudicating whether the NorthCarolina legislature’s facially valid procedural rule wasaccompanied by some (ill-defined) purpose and effect.See Rucho, 318 F. Supp. 3d at 938. That was legal

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error. Motive is irrelevant to whether an exercise ofauthority falls within a positive grant of power. See,e.g., Sonzinsky v. United States, 300 U.S. 506, 513–14(1937) (finding inquiry into “hidden motives” to be“beyond the competency of courts” in assessing whethertax legislation exceeded constitutional taxingauthority); McCray v. United States, 195 U.S. 27, 56(1904) (rejecting the notion “that the judiciary mayrestrain the exercise of lawful power on the assumptionthat a wrongful purpose or motive has caused thepower to be exerted”); see also Fletcher v. Peck, 10 U.S.(6 Cranch) 87, 130 (1810).

The question whether legislation exceeds a positivedelegation differs in this respect from the questionwhether legislation infringes on individual rights.Courts probe motive in individual-rights cases because“[a] statute, otherwise neutral on its face,” violatesindividual rights if it is “applied so as invidiously todiscriminate on the basis of race” (or another suspectclassification). Washington v. Davis, 426 U.S. 229, 241(1976). For that reason, the Court, in adjudicatingequal-protection redistricting cases, does look past the“tracts of land, precincts or census blocks” to ascertainif a redistricting plan was “motivated by a racialpurpose or object.” Hunt, 526 U.S. at 546 (quotationsomitted). But “object or motive” is of no import inassessing whether legislation fits within an affirmativegrant of legislative power. McCray, 195 U.S. at 54. Tohold otherwise would subject the “wisdom” oflegislation to judicial review and “overthrow the entiredistinction between the legislative, judicial, andexecutive departments of the government.” Id. at54–56. Accordingly, whether or not North Carolina’sredistricting legislation is “a partisan gerrymander”

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has no bearing on whether or not it is valid under theElections Clause. Cf. Crawford v. Marion Cty. ElectionBd., 553 U.S. 181, 203–04 (2008) (affording partisanintent no weight on the question whether a voteridentification requirement was an impermissibleburden on the right to vote).

The district court misread Thornton and Gralike, insupport of its motive inquiry. Rucho, 318 F. Supp. 3d at936–38. Those cases do not condemn proceduralelection laws if accompanied by improper motive oreffect; they rather condemn laws that do not regulateelection procedure at all. Thornton concluded that thepower to craft procedural laws does not encompass thepower to establish qualifications to congressional office.514 U.S. at 828. It then rejected a state constitutionalprovision establishing qualifications (term limits) on itsface in the form of a ballot-access rule. Id. at 833–36.The provision expressly stated: “the people ofArkansas…herein limit the terms of elected officials.”Id. at 784, 830. Likewise, Gralike invalidated a statutethat, on its face, expressed government opposition tocandidates who declined to support term limits; itviewed this mechanism as the functional equivalent ofan impermissible qualification for office. Gralike, 531U.S. at 514–15 (“Section 18 provides that the statement‘DECLINED TO PLEDGE TO SUPPORT TERM LIMITS’ beprinted on all primary and general election ballots”).Both cases judged the challenged provisions accordingto their plain text, and neither provision evenpurported to set time, place, or manner rules.

Thornton’s references to “intent” and “effect” mustbe understood in that context. 514 U.S. at 829,(quotations omitted). Although the decision condemned

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legislation “with the avowed purpose and obvious effectof evading the requirements of the QualificationsClause,” id. at 831, it in no way suggested that someamorphous degree of motive unrelated to theQualifications Clause would condemn a law that doesregulate election procedure.

The problem was that the law in no way regulatedelection procedure and in every way set qualifications.In response to the argument that the term-limitprovision was a ballot-access rule and did not setqualifications, the Court held that this “indirect”measure had “the sole purpose…to achieve a resultthat is forbidden by the Constitution” and thus was nota procedural rule. Id. at 829. Similarly, Gralike’sobservation that the legislation at issue “is plainlydesigned to favor candidates who are willing to supportthe particular form of a term limits amendment” wasfounded in “a concrete consequence” identifiable in theprovision’s text. 531 U.S. at 524. It does not follow fromeither holding that facially neutral state laws thatdirectly and extensively regulate election procedure areinvalid on a judicial finding of some type of motive oreffect. A redistricting plan, even one enacted toadvantage one group over another, is never a“sole…attempt to achieve a result that is forbidden bythe Federal Constitution.” Thornton, 514 U.S. at 829.Notably, the type of fact and expert testimony thedistrict court relied on to discern hidden motive, seeRucho, 318 F. Supp. 3d at 868–80, is completely absentfrom Thornton and Gralike and foreign to theirinterpretive approach.

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The district court’s contrary reading of theseprecedents is nonsensical. It would equally condemngoals of unfairness and fairness in redistricting. Thatis because the constitutional problem in Thornton andGralike was not that the laws were unfair, but thatthey set qualifications to office. Thornton, 514 U.S. at813–815. If a districting scheme intended to influenceelectoral results amounts to a qualification, it does notmatter whether the qualification is fair or unfair:qualifications per se are forbidden. Thus, the districtcourt’s reading of these precedents would treat statelegislatures’ attempts “to allocate political power to theparties in accordance with their voting strength,”Gaffney, 412 U.S. at 754, no differently from attemptsto advantage one group over another. This reading, ofcourse, is untenable. The precedents say nothingwhatsoever on this topic and have nothing to do withthis case.

II. The Elections Clause Deprives Courts ofAuthority To Supervise PoliticalConsiderations

A. Not only does the Elections Clause itself notsupport judicial adjudication of so-called partisan-gerrymandering claims, it also is powerful evidencethat manageable standards are not to be found in otherconstitutional provisions. Questions of “fairness” inredistricting are quintessentially political and beyondjudicial competency.

1. The Elections Clause contains “a textuallydemonstrable constitutional commitment” of politicaldiscretion over election regulations “to a coordinatepolitical department”—in fact, two departments perstate, the legislature and Congress. Baker v. Carr, 369

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U.S. 186, 217 (1962). Although courts may reviewwhether an election law falls under the Clause’sdelegation (see § I.B above) and whether it violatescentral individual-rights guarantees (see § II.B below),review of whether the act is politically unfair invadesthe core of the delegation itself. What is and is not fairis exactly the subject matter the Clause empowerslegislatures and Congress to address.

Although the principal recipient of the delegation isthe state legislature, that does not extenuate theseparation-of-powers harm of judicial review. When itenacts congressional districts, the legislature “is notacting solely under the authority given it by the peopleof the State, but by virtue of a direct grant of authoritymade under…the United States Constitution.” Bush v.Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 76(2000). Moreover, to seize supervisory authority overelections is to seize congressional power, an invasion ofauthority allocated to “a coordinate politicaldepartment.”

2. The Elections Clause points to “the impossibilityof deciding” a partisan-gerrymandering case “withoutan initial policy determination of a kind clearly fornonjudicial discretion.” Baker, 369 U.S. at 217. Theframers understood that the power delegated under theElections Clause is “discretionary.” The Federalist No.59, supra, at 398 (Hamilton) (emphasis added). Toevaluate whether discretion is exercised fairly orunfairly is to evaluate whether it is exercised wisely orunwisely, an inquiry unfit for judicial resolution. See,e.g., Polish Nat’l All. of the U.S. of N. Am. v. N.L.R.B.,322 U.S. 643, 650 (1944).

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To be precise, the initial policy determination apartisan-gerrymandering claim presents is what doesand does not qualify as “fairness in districting.” Viethv. Jubelirer, 541 U.S. 267, 307 (2004) (Kennedy, J.,concurring). Electing one’s preferred candidates is notlike expressing one’s beliefs: speech can be counteredby more speech, so courts can enforce free-speech rightssimply by enjoining a speech restraint; they need notlimit other persons’ ability to communicate an opposingmessage. By contrast, for one constituency—defined inits preferred way—to elect its preferred candidates, itmust outvote competing constituencies, frustratingtheir ability to do the same. And, for one constituencyto obtain more favorable districts, others must losefavorable districts. Identifying whether a redistrictingmap unfairly burdens a given constituency requires(1) classifying the constituency in one way overanother, (2) deciding how much representation itdeserves, and (3) deciding from what otherconstituency to take that representation.

Accordingly, in racial vote-dilution cases, to identifya burden on a judicially enforceable right, the courtsmust identify “what the right to vote ought to be.” Renov. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000)(emphasis in original). This requires proof of “somebaseline with which to compare” the challengedscheme. Id. “[W]here there is no objective and workablestandard for choosing a reasonable benchmark bywhich to evaluate a challenged voting practice, itfollows that the voting practice cannot be challenged asdilutive….” Holder v. Hall, 512 U.S. 874, 881 (1994).

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But, outside the racial context, those questions arepolitical, not legal.4 North Carolina can be divided intoan infinite number of equally populated districts, andan infinite number of baseline maps can therefore beidentified—each with its own set of political winnersand losers. Constituencies also can be defined andredefined in any number of ways: “farmers or urbandwellers, Christian fundamentalists or Jews,Republicans or Democrats,” and so on. Vieth, 541 U.S.at 288 (plurality opinion). Democratic and Republicanvoters do not exist either as facts of nature or asmembers of constitutionally defined castes; the partiescan be broken down into sub-constituencies, and manyconstituencies have a home in neither party. A legalright to elect preferred candidates can only beadministered for favored groups (here, the Democraticand Republican Parties), or else administering it wouldpit the rights of all Americans against each other.

Further, there are innumerable competingprinciples of fairness. Even if an expert witness createsan algorithm to produce millions of alternative maps bywhich to measure the alleged gerrymander, the expertnecessarily plugs policy judgments into those maps bycreating one algorithm, not another. Fairness can bedefined geographically, such as under so-calledtraditional districting principles like compactness,

4 Notably, racial vote-dilution cases are governed principally bystatute, the Voting Rights Act, not the Constitution. See Zivotofskyex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195–96 (2012)(distinguishing, for justiciability purposes, adjudication of policymatter delegated to political branches from adjudication ofstatutory rights flowing from statute enacted under thatdelegation).

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contiguity, and political-subdivision integrity. It can,alternatively, be defined under votes-to-seats ratios bycomparing how many votes a party obtains against howmany seats its candidates win. These measures, too,may be subdivided and reworked under their owninternal logic, and they set up competing definitions offairness as against other methods.

In all these respects, “[t]he wide range ofpossibilities makes the choice inherently standardless.”Holder, 512 U.S. at 889. That is why the Constitutiondelegates these questions to political bodies, not courts.To decide whether a legislature acted fairly, a courtmust usurp the predicate question of what that evenmeans, a quintessential political question.

3. The Elections Clause renders it impossible for “acourt’s undertaking independent resolution” of apartisan-gerrymandering case “without expressing lackof the respect due coordinate branches of government.”Baker, 369 U.S. at 217. A court cannot rule that alegislature engaged in improper “partisangerrymandering” without concluding that the courtknows better than the legislature which competingconstituencies deserve electoral representation, in whatway, and to what degree. What’s more, as the districtcourt recognized, invalidating the legislature’sredistricting legislation often necessitates replacing itwith a court-drawn scheme. Common Cause v. Rucho,318 F. Supp. 3d 777, 942–44 (M.D.N.C. 2018). That, inturn, means replacing core legislative policy withjudicial policy.

Entertaining these questions disrespects both statelegislatures and Congress. When it was proposed, theElections Clause sparked controversy because many

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convention delegates were appalled that it authorizedCongress to override state legislatures’ election laws,universally viewed as a matter for local control. See 2Story § 813. The Federalists retorted, not that electionprocedure should be viewed primarily as a nationalmatter, but that the power “will be so desirable a boonin [the legislatures’] possession” that Congress wouldnot likely interfere “unless from an extreme necessity,or a very urgent exigency.” Id. § 820. But a decision bythe courts that a legislature acted unfairly—from apolitical standpoint—would insult both the legislature,by removing this “desirable” “boon” from its“possession,” and Congress, by ruling on what is and isnot “an extreme” or “very urgent exigency” meritingfederal intervention.

In spite of this, the district court erroneouslyfocused on what principles might apply to partisan-gerrymandering claims without asking why courtsshould apply them. See Rucho, 318 F. Supp. 3d 937–39.The district court was correct that the framers fearedthat partisan mischief might twist election procedure,but the court did “not offer evidence of a single word inthe history of the Constitutional Convention or incontemporary commentary that even alludes to thepossibility of judicial review” as the remedy. Nixon v.United States, 506 U.S. 224, 233 (1993) (emphasisadded).

That no such evidence has been forthcoming isunsurprising. The Clause vests remedial authority withCongress. And to remedy state legislatures’ abuse isnot “to act in the manner traditional for English andAmerican courts.” Vieth, 541 U.S. at 278 (pluralityopinion). In referencing the “Times, Places and

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Manner” of elections, the Elections Clause plainlyreferences what English parliamentary law called“methods of proceeding” as to the “time and place ofelection” to parliament. See 1 Blackstone 163, 177–179.Those “time and place” “methods,” in turn, were“regulated by the law of parliament.” Id. at 177; seealso 4 E. Coke, Institutes of Laws of England 48(Brooke, 5th ed. 1797). Neither house would “permitthe subordinate courts of law to examine the merits” ofan election dispute, and the House of Commons denied“any right” of any officer outside that body “to interferein the election of commoners” or “intermeddle inelections.” 1 Blackstone 163, 179; see also id. at 179(stating that to the house of commons “alone belongsthe power of determining contested elections”); GeorgePhilips, Lex Parliamentaria 9, 36–37, 70–80 (1689).The House of Commons was not shy to protect itsexclusive jurisdiction in this domain. It, for example,declared a quo warranto writ from “any Court” thatsent burgesses to parliament based on time, place, andmanner adjudications to be “illegal and void,” and itfurther opined that the “Occasioners, Procurers, andJudges in such Quo Warranto’s” may be punished forjurisdictional usurpation. George Philips, supra at 80.By carrying forward that tradition of legislative controlover quintessentially legislative matters, the ElectionsClause views courts as, if anything, threats to, notvindicators of, “free” elections. 1 Blackstone 179.

4. The Elections Clause codifies “an unusual needfor unquestioning adherence to a political decisionalready made,” and it points to “the potentiality ofembarrassment from multifarious pronouncements byvarious departments on one question.” Baker, 369 U.S.at 217.

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Partisan-gerrymandering claims set courts up assuperior branches, capable of second-guessing and evenmaking political choices, when they have nocompetency to do so. These cases are unlike thosealleging criminal misconduct or discrimination basedon an immutable characteristic, where courts can tailortheir proceedings, inquiries, decisions, and remedies tofinite questions distinct from those properly left toother branches—and touch on political questions onlyincidentally. Courts in partisan-gerrymandering caseshave no choice but to place the entire deliberativeprocess at issue, because the entire deliberative processis political, and base their determinations squarely onpolitical choices.

Courts have therefore enforced broad subpoenasagainst elected officials, demanding testimony anddocuments concerning core political deliberations anddecisions. See, e.g., League of Women Voters ofMichigan v. Johnson, 2018 WL 2335805, at *4 (E.D.Mich. May 23, 2018) (enforcing demand for “alldocuments, notes, data and analysis related to the 2012Michigan Redistricting process”); Agre v. Wolf, 284 F.Supp. 3d 591, 650 (E.D. Pa. 2018) (“The claim ofexecutive privilege and deliberative privilege assertedby the Legislative Defendants was overruled by thisCourt.”). Such decisions have, in turn, been extended tojustify third-party subpoenas to political parties andadvocates, demanding wide-ranging documentproduction and testimony about politics, their coreorganizational mission. See, e.g., Ohio A. PhilipRandolph Inst. v. Larose, --Fed. App’x--, 2019 WL259431, at *8 (6th Cir. Jan. 18, 2019) (rejectingmandamus petition to prevent broad discovery into theNational Republican Committee and related

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organizations). This means that one major politicalparty can fund redistricting litigation and therebyobtain discovery into its opponents’ political strategy.

This undermines both the judicial and legislativeprocesses. A judge sits on a dais, orders legislators toappear in court and testify and to produce theirpolitical email correspondence with constituents andsupporters, and passes judgment on the very politics ofthat information. The impropriety of this can hardly beover-emphasized. The Constitution vests these verypolitical choices with the legislature, so placing thejudge over and against the legislature and itsconstituent members to review those very choices,precisely for their being political, creates the publicmisimpression that courts—viewed as non-political andfair arbiters of law—are competent to condemnlegislators’ political choices and views.

Further, an enjoined redistricting plan must bereplaced, often by a court-ordered plan. Becausepolitical consequences are unavoidable, these plans ofnecessity reflect policy choices. Under this Court’sprecedents, district courts must narrowly tailor theirremedies, touching only discrete legal violations. Theymust “honor state policies,” not “unnecessarily putaside” legislative decisions, and choose a remedy“which most clearly approximate[s] thereapportionment plan of the state legislature, whilesatisfying constitutional requirements.” White v.Weiser, 412 U.S. 783, 795–96 (1973); see also Upham v.Seamon, 456 U.S. 37, 42–44 (1982); Perry v. Perez, 565U.S. 388, 394 (2012). But a partisan-gerrymanderingclaim encompasses the very foundations of thelegislative policy decisions, politics and all. Thus,

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remedying these would-be violations will eventuatewholesale judicial reinvention of redistricting prioritiesfrom scratch. The “state policies” themselves beingcondemned, district courts will surely implement theirown criteria. That means directly “prescrib[ing]” the“Times, Places and Manner” of congressional electionsand cutting out “the Legislature” altogether.

In this very case, the district court displayed thinlyveiled contempt for the North Carolina legislature,representing that “we have not yet decided whether wewill afford the General Assembly another chance” toredistrict and that “the General Assembly should” act“as quickly as possible” in the event that the districtcourt might, as a matter of judicial grace, allow it thatopportunity—on an expedited basis. Rucho, 318 F.Supp. 3d at 944. But a state legislature does not needjudicial permission to enact congressional redistrictinglegislation; the Constitution delegates that powerdirectly to the legislature. Honoring that delegationmeans deferring to legislature’s political choices.Subjecting them to judicial process upends the uniqueneed for a single voice on these matters.

B. The Elections Clause renders political-gerrymandering claims non-justiciable even though itdoes not have this impact on one-person, one-vote andracial-gerrymandering and racial vote-dilution claims.Those claims are governed by a “limited and preciserationale” that allows courts to “correct an establishedviolation of the Constitution” without committing“federal and state courts to unprecedented interventionin the American political process.” Vieth, 541 U.S. at306 (Kennedy, J., concurring). They therefore implicatefew, if any, of the political-question factors. A partisan-

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gerrymandering claim is altogether different; there isno way for courts to adjudicate such claims withoutseizing for themselves the political discretionconstitutionally delegated to other branches. Cf.Vander Jagt v. O’Neill, 699 F.2d 1166, 1176 (D.C. Cir.1982) (concluding that, although constitutionality ofHouse rules is not per se beyond judicial review,challenge to partisan motive and impact of House rulespresented a “startlingly unattractive,” non-justiciablecontroversy) (quoting Davids v. Akers, 549 F.2d 120,123 (9th Cir. 1977)).

1. It is certainly true that the Elections Clause doesnot immunize an election law from scrutiny if itthreatens core free-speech and equal-protection rights.Tashjian v. Republican Party of Conn., 479 U.S. 208,217 (1986). And it is true that the Civil WarAmendments “operated to alter the pre-existingbalance” established in many constitutional provisions,Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65–66(1996), including the Elections Clause, therebyempowering judicial involvement unforeseen in 1789.See Gregory v. Ashcroft, 501 U.S. 452, 468 (1991).Accordingly, this Court has correctly held that a time,place, or manner rule that violates an independentconstitutional right is not immune from judicial reviewsimply because it is enacted under the ElectionsClause. Wesberry v. Sanders, 376 U.S. 1, 6 (1964). Justas Congress’s affirmative interstate-commerce, taxing,or spending powers do not immunize ensuing laws fromreview under constitutional individual-rightsguarantees, Elections Clause legislation too mustsatisfy those guarantees.

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But it is equally true that all constitutionalprovisions must be interpreted together with theElections Clause as codifying a coherent and unifiedbalance of congressional, legislative, and judicialauthority. The Fourteenth Amendment neitherabrogated the Elections Clause nor signaled ameaningful departure from its delegation of legislativepower. For that reason, a proffered interpretation ofthe Fourteenth Amendment that would disfigure theElection Clause’s delegation beyond recognition isuntenable. The Civil War Amendments (much lessprovisions ratified together with the Elections Clause)did not license judicial authorship of state electionscodes.

2. This Court’s racial-discrimination and one-person, one-vote doctrine leaves state legislative powerover congressional elections intact. It targets onlydiscrete abuses and cabins judicial review andremedies to.

The Court’s racial precedents address theparadigmatic evils the Civil War Amendmentsattempted to cure and utilize the same strict scrutinyapplied to all racially discriminatory laws. Racialmotive and effect are “much more rarely encountered”than political motive, Vieth, 541 U.S. at 286 (pluralityopinion), so review of racial cases does not mark awholesale transfer of legislative discretion to thejudiciary. And, notably, most of the Court’sjurisprudence on racial redistricting arises fromstatute, the Voting Rights Act, not the Constitution.5

5 Even the Court’s racial-gerrymandering precedents, whichtechnically arise under the Equal Protection Clause, virtually

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(That a statute is necessary to guarantee racialminorities an equal opportunity “to electrepresentatives of their choice,” 52 U.S.C. § 10301(b),strongly suggests that the Constitution grants no suchright to major political parties.)

Similarly, the one-person, one-vote rule—itselfcontroversial when announced—provides a concise andobjective framework by which legislatures mayredistrict, not a diversion of their power to courts. Itprovides a “background rule” against whichredistricting can occur, Ala. Legis. Black Caucus v.Alabama, 135 S. Ct. 1257, 1271 (2015), and otherwisefrees legislative political and policy choices fromjudicial scrutiny.

Equally important, the rule presupposes thatindividuals receive representation from therepresentative of their geographic-based districts. SeeEvenwel v. Abbott, 136 S. Ct. 1120, 1127–31 (2016).This traditional view defines an individual by the pieceof geography the state designates as the individual’sdistrict, the standard unit of representation. See 1Blackstone at 158–59; 178–79. Although perhaps notreadily foreseeable in 1789 or 1868, the principle atleast follows logically from that traditional notion: auniform ratio of persons to representatives ensuresequality in voting as between persons within thatframework. See Reynolds v. Sims, 377 U.S. 533, 565–66(1964); see also 1 Blackstone 178–79; see also id., app.,note D at 190 (“[N]o just reason therefore can be

always arise from state legislatures’ attempted compliance withthe Voting Rights Act. See, e.g., Miller v. Johnson, 515 U.S. 900,916 (1995).

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assigned why ten men in one part of the communityshould have greater weight in its councils, than onehundred in a different place, as is the case in England,where a borough composed of half a dozen freeholders,sends perhaps as many representatives to parliament,as a county which contains as many as thousands.”).The rule incorporates a theory of “fair and effectiverepresentation for all citizens,” Reynolds, 377 U.S. at565–66, grounded in “individual rights,” not“generalized partisan preferences,” Gill v. Whitford,138 S. Ct. 1916, 1933 (2018).

3. By contrast, the district court’s theory assumesa partisan framework and ensures an equal right tosuccess within that framework. It predicates the rightto vote on affiliation with a major political party withmillions of members and millions of dollars in funding.It further exposes all legislative decision-making tojudicial scrutiny and in no way restricts review todiscrete issues distinct from the legislature’s core policyjudgments. And it proposes a new theory ofrepresentation, ignoring that “[a]n individual or agroup of individuals who votes for a losing candidate isusually deemed to be adequately represented by thewinning candidate and to have as much opportunity toinfluence that candidate as other voters in the district.”Davis v. Bandemer, 478 U.S. 109, 132 (1986) (pluralityopinion). The district court’s theory contains noindividual-rights predicate; it instead presupposes aright to a particular partisan composition of thelegislature, the assumption being that DemocraticParty supporters receive their representation fromDemocratic Party representatives and vice versa.

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The rationale is neither limited nor precise andwould work a revolution of the courts’ role in legislativematters. It cannot square with the Constitution ortraditional American notions of what the right to voteis.

III. Judicial Redistricting Is PoliticalRedistricting

Although partisan-gerrymandering plaintiffs (andthe political parties funding the litigation) have longcomplained of politics in redistricting, two centuries’worth of practical experience demonstrate thatdistricting is “root-and-branch a matter of politics.”Vieth, 541 U.S. 267, 285 (2004) (plurality opinion). ThisCourt has therefore found it appropriate “to assumethat those who redistrict and reapportion work withpolitical and census data” and that, “[w]ithin the limitsof the population equality standards of the EqualProtection Clause,” they work “to achieve the politicalor other ends of the State.” Gaffney v. Cummings, 412U.S. 735, 754 (1973).

But what happens when judges redistrict? Therebeing no objective legal principles to recommend onedistrict over another, they too engage in politicaldecision-making. And, unsurprisingly, they too “workwith political…data” to achieve their own “political”ends in what is “root-and-branch a matter of politics.”The trade is one political actor for another, nothingmore.

Pennsylvania’s experience with state-courtpartisan-gerrymandering litigation provides avivid—and entirely repeatable—example of thatprinciple in action. In January 2018, the Pennsylvania

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Supreme Court invalidated a legislatively enactedcongressional plan and redistricted the state itself,concluding that the legislative plan did not comply withstate constitutional requirements for fairness indistricting, namely “that all voters have an equalopportunity to translate their votes intorepresentation.” League of Women Voters v.Commonwealth, 178 A.3d 737, 804 (Pa. 2018). Thatrequirement has no basis in the PennsylvaniaConstitution, which provides no congressionalredistricting criteria, even while regulating withprecision the Commonwealth’s legislative districts. Andthe Pennsylvania Supreme Court had no choice but tooverrule decades of its own precedents (and the lowercourt’s rejection of the claims) to achieve this result.This included a 2013 decision holding that “nothing inthe [Pennsylvania] Constitution” prohibits partisanredistricting. Holt v. 2011 Legis. ReapportionmentComm’n, 67 A.3d 1211, 1236 (Pa. 2013); see also Erferv. Commonwealth, 794 A.2d 325, 334 n.4 (Pa. 2002)(holding that “no analogous, direct textual referencesto…neutral apportionment criteria” governcongressional districts).

The about-face on this supposedly legal questionhad a political explanation. A Republican-controlledlegislature had enacted the challenged congressionaldistricts—with Democratic Party support supplying thevotes essential to its passage. Yet judicial elections in2015 gave control of the Pennsylvania Supreme Courtto justices expressly affiliated with the DemocraticParty. That development, together with the abruptchange in jurisprudence, would have sufficed to spawnquestions about the judiciary’s neutrality. But any hopeof perceived fairness was shattered when it came to

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light that the court’s decisions fulfilled campaignpromises made by some justices when they ran forelection in 2015.

One of the deciding votes (indeed, it was decisive onseveral key case issues, including at the remedialphase) was cast by Justice David Wecht, who attackedthe Commonwealth’s congressional plan during his2015 election campaign. Justice Wecht expressed thoseviews in a forum held by the League of WomenVoters—the original lead challenger and named partyin the state-court partisan-gerrymandering litigation.At that forum, he stated:

Everybody in this room should be angry abouthow gerrymandered we are….Understand,sitting here in the city of Pittsburgh, your vote isdiluted. Your power is taken away from you.6

On another occasion, he stated:

There are a million more Democrats in thisCommonwealth—I want to let that sink in—amillion more Democrats in this Commonwealth,but…there are only 5 Democrats in the Congress,as opposed to 13 Republicans. Think about it. Dowe need a new Supreme Court? I think youknow the answer.7

6 Eric Holmberg, Forums Put Spotlight on PA Supreme CourtCandidates , PUBLICSOURCE (Oct . 22 , 2015) ,www.publicsource.org/forums-put-spotlight-on-pa-supreme-court-candidates (emphasis added).

7 Media Mobilizing Project, Neighborhood Networks Supreme Court ofPA Forum, YouTube (Apr. 25, 2015), at 18:43, https://www.youtube.com/watch?v=713tnbv55mU&feature= youtu.be (emphasis added).

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He also argued:

…[I]n 2014, I believe, there were at least morethan 200,000 votes for Democratic candidates forU.S. Congress than Republicans and yet weelected 13 Republicans and 5 Democrats, andthere are more than 1,000,000 moreDemocrats.…I’m not trying to be partisan, but Ihave to answer your question, frankly--. Wehave more than a million more Democrats inPennsylvania, we have a state senate and statehouse that are overwhelmingly Republican. Youcannot explain this without partisangerrymandering.8

When these and other statements (including similarstatements by other justices during their campaigns)9

came to light, the legislative parties defending the plan(including the amicus) moved for Justice Wecht’srecusal. In response, Justice Wecht issued an opinionstanding by his prior statements and concluding, interalia, that they were permissible under Pennsylvania

8 Get to Know the Candidates for State Supreme Court, LancasterOnline (Oct. 31, 2015), http://lancasteronline.com/news/local/get-to-know-the-candidates-for-state-supreme-court/article_65c426d4-6d45-11e5-b74f-6babb36c03bb.html (embedded video for “JudgeDavid Wecht, Democrat from Allegheny County,” at 38:23)(emphasis added).

9 For example, as a candidate, Justice Donahue represented that,if elected, she would ensure that “gerrymandering will come to anend.” Scarnati Issues Statement on PA Supreme Court JusticesWecht & Donohue, Senator Joe Scarnati Pennsylvania’s 25thDistrict (Feb. 2, 2018), https://www.senatorscarnati.com/2018/02/02/scarnati-issues-statement-pa-supreme-court-justices-wecht-donohue/.

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law and the First Amendment as judicial campaignspeech.

That set the stage for remedial proceedings. ThePennsylvania Supreme Court afforded thePennsylvania General Assembly only 18 days to enacta new plan, and it withheld its 138-pageopinion—which stated such rudimentary points aswhat provision of the Pennsylvania Constitution thelegislative plan violated and the new legal standard thePennsylvania Supreme Court read into it—until twodays prior to that deadline. When the GeneralAssembly could not meet that deadline, thePennsylvania Supreme Court promptly enacted its ownplan which it declared by fiat, with no adversarialproceedings, was compliant with state law and superiorto the plans proposed by the legislative leadership(including the amicus) and others. In crafting its plan,the court made no effort to implement the legislativepolicy goals of any legislatively enacted districtingplan.

As news accounts have noticed, the court’s map wasself-evidently drawn to favor the voters of theDemocratic Party. The New York Times declared that“Democrats couldn’t have asked for much more fromthe new map. It’s arguably even better for them thanthe maps they proposed themselves.”10 Real ClearPolitics observed that the court “repeatedly madechoices that increased the Democrats’ odds of winning

10 Nate Cohn et al., The New Pennsylvania Congressional Map,District by District, N.Y. Times: The Upshot (Feb. 19, 2018),https://www.nytimes.com/interactive/2018/02/19/upshot/pennsylvania-new-house-districts-gerrymandering.html.

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districts.”11 The judicially drawn map achieves thisthrough remarkable partisan precision, which isessential to counteract Democratic Party constituents’natural geographic concentration in an aroundPhiladelphia and Pittsburgh.

In other words, faced with remedying what itperceived to be a Republican Party-friendly“gerrymander,” the Pennsylvania Supreme Court,controlled by a Democratic Party majority, drew aDemocratic Party-friendly gerrymander. Indeed, itcould do nothing else because, even in the mostsanitized of circumstances, a political-gerrymanderingcause of action claims the right of a major politicalparty to win elections. Remedying its perceivedinability to do so requires judges to use their equitablepowers directly, intentionally, and expressly to help theparty obtain power. That is what the PennsylvaniaSupreme Court did: Democratic Party candidatesclaimed four new seats that were formerly held byRepublican representatives. The district court in thiscase apparently has similar intentions for NorthCarolina.

If states are “laboratories for devising solutions todifficult legal problems,” Ariz. State Leg. v. Ariz. Indep.Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015)(quotation marks omitted), this Court should heed theirFrankenstein and Chernobyl, as much as their Eureka,moments. Redistricting is political because of what it

11 Sean Trende, How Much Will Redrawn Pa. Map Affect theMidterms?, Real Clear Politics (Feb. 20, 2018),https://www.realclearpolitics.com/articles/2018/02/20/how_much_will_redrawn_pa_map_affect_the_midterms_136319.html.

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is, not because of who conducts it. Opening the courtsto partisan-gerrymandering litigation holds no promiseof non-partisan redistricting and every threat of apoliticized judiciary. And, although there is everyreason to hope judges can set partisan feelings asidewhen enforcing non-partisan rules (like one person, onevote), that is too much to ask when the rules arethemselves partisan in content and the litigants’express demand is for partisan aid in winningelections.

That federal judges are appointed, not elected, in noway mutes these alarms. Federal judges are appointedby the political branches in increasingly contentiousand partisan proceedings, and judges are as human asanyone else. Worse, they—unlike the legislators thedistrict court placed in the dock—are not subject tobeing voted out of office for political decisions. And, ifnothing else, judicial redistricting, even by lifetime-appointed federal judges, will raise questions. This caseis no exception. See Editorial Bd., North Carolina’sGerrymander Coup: Liberal Judges HijackRedistricting To Abet a Democratic House, Wall StreetJ., Aug. 30, 2018.12

CONCLUSION

The Court should vacate the district court’sinjunction with instructions to dismiss this case as non-justiciable.

12 https://www.wsj.com/articles/north-carolinas-gerrymander-coup-1535670476

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Respectfully submitted,

KATHLEEN A.GALLAGHERRUSSELL D. GIANCOLACAROLYN BATZ MCGEEPORTER WRIGHTMORRIS & ARTHURLLPSix PPG PLACEThird FloorPittsburgh, PA 15222(412) 235-4500kgallagher@porterwright.com

ROBERT J. TUCKER BAKER & HOSTETLERLLP 200 Civic Center Drive Suite 1200 Columbus, OH43215-4138 (614) 228-1541 rtucker@bakerlaw.com

E. MARK BRADEN Counsel of RecordKATHERINE L. MCKNIGHTRICHARD B. RAILEBAKER & HOSTETLER LLP1050 Connecticut Ave., N.W.Suite 1100Washington, D.C. 20036(202) 861-1500mbraden@bakerlaw.com

PATRICK T. LEWIS BAKER & HOSTETLER LLP Key Tower 127 Public Square Suite 2000 Cleveland, OH 44114 (216) 621-0200 plewis@bakerlaw.com

Counsel for Amicus Curiae