Amicus Curiae Brief

No. 16-1161

In the

Supreme Court of the United States

October Term, 2017

______________________________

BEVERLY R. GILL ET AL.,

Appellants,

V.

WILLIAM WHITFORD ET AL.,

Appellees.

________________________________

On Writs of Certiorari From the United States District

Court for the Western District of Wisconsin

_________________________________

BRIEF OF THE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

AS AMICUS CURIAE IN SUPPORT OF

APPELLEES

_________________________________

Hannah R. Scholze

Of the District of Columbia for

Counsel of Record

Jenna L. DePellegrini

Of the Pennsylvania Bar

Counsel of Amicus Curiae

i

TABLE OF CONTENTS

Page

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

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

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

ARGUMENT……………………………………………………………………………. 3

CONCLUSION………………………………………………………………………….. 5

ii

TABLE OF AUTHORITIES

Gill v. Whitford. (n.d.). Oyez. Retrieved November 15, 2017, from

https://www.oyez.org/cases/2017/16-1161

Ifill , S. (1940). The NAACP Legal Defense and Education Fund . Retrieved November 11,

2017, from http://www.naacpldf.org/history

L., & C. (2004). Vieth v. Jubelirer. Retrieved November 12, 2017, from

https://www.law.cornell.edu/supct/html/02-1580.ZS.html

Lieb, D. A. (2017, June 25). Analysis Indicates Partisan Gerrymandering Has Benefited GOP.

Retrieved November 13, 2017, from https://www.usnews.com/news/

Roddenbery, T. (2016). Princeton Gerrymandering Project. Retrieved November 13, 2017, from

http://gerrymander.princeton.edu/

INTERESTS OF THE AMICI CURIAE

The NAACP Legal Defense and Educational Fund (LDF) is the country’s first a foremost civil and humans rights law firm. A non-profit and non-partisan firm, the organization was founded in 1940 under the leadership of Thurgood Marshall, who subsequently became the first African-American U.S. Supreme Court Justice. LDF was launched at a time when the nation’s aspirations for equality and due process of law were stifled by widespread state-sponsored racial inequality. In its first two active decades, LDF undertook a coordinated legal assault against officially enforced public school segregation. This campaign culminated in Brown v. Board of Education, the landmark Supreme Court decision in 1954 that has been described as “the most important American governmental act of any kind since the Emancipation Proclamation.” LDF was subsequently forced to file hundreds of lawsuits against schools across the country in order to uphold the decisions found within Brown v. Board of Education. In more recent decades, LDF has remained at the forefront of the ongoing struggle to ensure a high-quality and equitable opportunity to learn for all of our nation’s youth. For instance, LDF served as lead counsel to African-American and Latino students who intervened in litigation leading up to the Supreme Court’s 2003 decision in Grutter v. Bollinger, which sanctioned race-conscious university admissions policies to obtain the educational benefits of a diverse student body.

In concerns of the court today, the amici have a significant interest in preserving the full and proper enforcement of the United States Constitution and the guaranteed preservation of of full and equal voting and political participation rights by the states and local statutes- including the Voting Rights Act of 1965. While the state of Wisconsin has a sizeable minority population within its borders, it does not appear, in the instant case, that the arguments pertained rest on the manipulation of the minority population. However, pertaining to cases of the past and future, the issue of gerrymandering at the expense of minority participation rights- especially within the parts of our country where the issue of race and party are intertwined, can deeply impact minority representation and political participation. For these reasons, thus, any decision made by the Supreme Court in the present case may impact minority representation and political participation in the future court, creating far- reaching implications for minority voters.

For future cases of this Court, a properly structured partisan gerrymandering claim could lessen the need for courts to undergo the difficulty of disentangling race and party, which this Court and others have recognized can be impermissible proxies for one another. A viable cause of action addressing partisan gerrymandering may assist the courts in determining those whose primary concerns are partisan will occasionally attempt to misuse race-based voting claims for their own ends.

Thus, the amici write in hopes of convincing the Court of the ramifications the practice of partisan gerrymandering may have on minority voter- not just in the state of Wisconsin, but in all states united under the United States Constitution- beyond this instant case. When the Court last considered the issue of partisan gerrymandering all nine Justices of the time recognized that an “excessive injection of politics” in the redistricting process is irreconcilable the Constitution.

SUMMARY OF THE ARGUMENT

In the words of Founding Father and Third President of the United States Thomas Jefferson, “The minority possesses their equal rights, which equal law must protect, and to violate would be oppression.” In concerns of the case presently, both the Democratic and Republican parties have used the power of the state to carry out acute partisan gerrymanders that would strengthen the substantive voting power of one party over the other, further enhancing their own influence of power while further subverting voters belonging to an opposing party. Many of these partisan gerrymanders were made at the expense of minority voting rights depicted in the Voting Rights Act of 1965.

In the past case of Vieth v. Jubelirer, decided in 2004, Justice Scalia, joined by the Chief Justice, Justice O’Connor, and Justice Thomas, concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. They would therefore overrule Davis v. Bandemer, in which this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard for assessing political gerrymandering claims.

To the extent that the Court is inclined to set a justiciable standard for adjudicating claims of partisan gerrymandering, it should ensure that such claims succeed only when plaintiffs prove invidious discrimination distinct from legitimate political choices.

ARGUMENT

In previous cases, this Court has determined that claims of unconstitutional partisan gerrymandering to be justiciable. Certainly, this is so, as seen with the previous Presidential election of 2016. Current President Donald Trump has claimed in times past that voter polls were biased against his campaign. However, in an Associated Press study done subsequently after the election, it was shown that less attention was paid towards the drawing of lines and state legislative seats prior to the election polls. The AP scrutinized the outcomes of all 435 U.S. House races and about 4,700 state House and Assembly seats up for election last year using a new statistical method of calculating partisan advantage designed to detect cases in which one party may have won, widened or retained its grip on power through political gerrymandering.

The analysis found four times as many states with Republican-skewed state House or Assembly districts than Democratic ones. Among the two dozen most populated states that determine the vast majority of Congress, there were nearly three times as many with Republican-tilted U.S. House districts.

Similarly, a test done by Princeton University showed the increasing effects of gerrymandering on state legislatures during the 2016 election. According to the study done, within states that are gerrymandered, the party that benefits from the gerrymander will win many seats by small margins, while the opposing party wins a few seats by overwhelming margins. The differences in win margins were calculated using the two-sample T-test, the most widely used test in all of the sciences. Pertaining to this case, in Wisconsin's 2016 election, Republicans won their districts with an average of 64.5% percent of the vote, and Democrats won their districts with an average of 72.9% percent of the vote. The difference between the two parties’ win margins indicates Wisconsin may be gerrymandered in order to gain an advantage for Republicans. The chance that this difference would have arisen by nonpartisan processes alone is 2.6%.

Thus, both major political parties have drawn—and are capable of drawing—district lines to entrench themselves and subordinate the opposition 28 in ways that harm minority voters and their participation within their political process. History shows that both major political parties—Democratic and Republican—have drawn electoral districts in pursuit of their partisan interests in ways that have harmed minority voters. Following the 1970 Census, Texas Democrats drew multimember districts in Dallas and Bexar counties that were “unconstitutional in that they dilute the votes of racial minorities,” according to the case of Graves v. Barnes. Similarly, in 2003, after Texas Republicans gained control of both houses of the state legislature, they drew a new congressional redistricting plan with “the dual goal of increasing Republican seats in general and protecting [Republican Henry] Bonilla’s incumbency.” In doing so, however, the legislature diluted Latino voting strength in Congressional District 23, in violation of the Voting Act of 1965. As this Court observed in the case of Perez v. Abbott, “[t]he State chose to break apart a Latino opportunity district to protect the incumbent congressman from the growing dissatisfaction of the cohesive and politically active Latino community in the district.” Thus, both major political parties have drawn—and are capable of drawing—district lines to entrench themselves and subordinate the opposition in ways that harm minority voters.

CONCLUSION

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

DATED: November 16, 2017 Respectfully Submitted,

Jenna DePellegrini

Of the Pennsylvania Bar

Counsel of Amicus Curiae