Annotated Guide to the Amicus Briefs
As the Supreme Court prepares to take up the question of partisan gerrymandering, over forty briefs have been filed by friends of the court.
On March 26, the Supreme Court will hear arguments in two partisan gerrymandering lawsuits: Rucho v. Common Cause, a challenge to North Carolina’s 2016 congressional map; and Lamone v. Benisek, a challenge to Maryland’s 2011 congressional plan. Rucho and Benisek are two of the highest-profile cases for the Court’s 2018-19 term. Together, they offer the Court an opportunity to finally place some meaningful limits on the worst abuses of our redistricting processes by establishing a rule against extreme partisan gerrymandering.
Ahead of arguments, the Court received 43 amicus briefs from a diverse array of political scientists, historians, law professors, civil rights organizations, good government groups, states, and elected officials—30 supporting the plaintiffs (who won in the trial courts), ten briefs supporting North Carolina and/or Maryland, and three supporting neither side.
To help you get up to speed, the Brennan Center prepared this annotated guide to the amicus briefs, which includes summaries of each brief’s most prominent or unique points. Briefs marked with a star (*) were filed in support of the states.
Briefs Providing the Perspectives of Elected Officials from Both Parties on the Harms Created by Extreme Partisan Gerrymandering
This brief—which was filed by a bipartisan group of current and former members of Congress—explains how extreme partisan gerrymandering undermines the functioning of the U.S. House of Representatives. Among other things, the Members explain, gerrymandering makes compromise politically impossible and stokes voter disenchantment with—and disengagement from—the political process. The law firm of Wilmer Cutler Pickering Hale and Dorr LLP is counsel for this brief.
This brief—which was filed by a former Republican governor of California and the current Republican governor of Maryland—contends that extreme partisan gerrymandering has the practical effect of drowning out the voices of moderate voters and legislators. The governors also argue that state legislative redistricting conducted by politicians produces either one-party rule or legislative gridlock. The law firm of Irell & Manella LLP is counsel for this brief.
This brief—which was filed by Senator Sheldon Whitehouse (D-RI)—warns that the Court's failure to establish clear limits on partisanship in redistricting has encouraged politicians to gerrymander and created another channel for “dark money” and special interest groups to infiltrate our politics. Voters sense that their elections have been fixed by special interests, Senator Whitehouse asserts, and that has undercut their respect for American political institutions. Senator Whitehouse filed an earlier version of this brief with former Senator John McCain (R-AZ) in last term’s partisan gerrymandering case out of Wisconsin. The law firm of Covington & Burling LLP is counsel for this brief.
Briefs on the Necessity of Judicial Rules Against Partisan Gerrymandering
This brief—which was filed by 30 political science professors who study voter behavior and redistricting techniques—draws on the results of the 2018 midterms and other recent wave elections to show that partisan gerrymanders are no longer self-limiting, if they ever were. The professors also warn the Court that developments in mapping technology and voter data will permit mapmakers to create redistricting plans that are even more durably biased than the ones made in prior redistricting cycles. The law firm of Reed Smith LLP is counsel for this brief.
This brief—which was filed by the sitting Republican members of the North Carolina delegation to the U.S. House—argues that judicial intervention to fix gerrymanders is not necessary because Congress and the states can legislate to regulate the redistricting process and are, in fact, developing such legislation now. It further argues that the federal courts lack the institutional competence to decide partisan gerrymandering claims. The law firm of Troutman Sanders LLP is counsel for this brief.
Briefs Examining Partisan Gerrymandering from a Historical Perspective
This brief—which was filed by a panel of 16 leading historians including Jack Rakove of Stanford University, Alexander Keyssar of Harvard University, and Sean Wilentz of Princeton University—argues that partisan gerrymandering has been denounced throughout American history as an unconstitutional abuse of power. As the historians explain, the practice of drawing maps to entrench one political party runs counter to the vision of “actual representation” that was fundamental to the Framers' vision for American constitutional democracy. The brief also explains how partisan gerrymandering is hostile to values reflected in the First Amendment, the Fourteenth Amendment, and Article I of the Constitution. The law firm of Cravath, Swaine & Moore LLP is counsel for this brief.
Filed by the Constitutional Accountability Center, this brief examines the Constitution's text, structure, and history—as well as the Supreme Court's case law—to illuminate how redistricting plans designed to entrench a party's majority status violate core constitutional values and prohibitions.
This brief—which was filed by the Republican National Committee and National Republican Congressional Committee—argues that the courts are ill-suited to decide redistricting cases given their historical failures to correctly identify when district lines have entrenched a party in power. The courts’ purported failures, they contend, stem from the changeability of voters’ partisan preferences. The law firm of Holtzman Vogel Josefiak Torchinsky PLLC, the Republican National Committee, and the National Republican Congressional Committee are co-counsel for this brief.
This brief—which was filed by the Public Interest Legal Foundation—claims that the Fourteenth Amendment cannot govern partisan gerrymandering because its authors themselves benefited from gerrymandered districts. PILF further argues that the Founders granted the power to regulate elections—including the drawing of district lines for congressional elections—to the states. Consequently, courts would disrupt federalism if they began striking down redistricting plans.
Briefs Explaining How to Create a Workable Doctrinal Test for Partisan Gerrymandering
This brief from the Brennan Center for Justice provides the Court with advice for shaping its partisan gerrymandering standard to focus on extreme partisan gerrymanders. The brief identifies contextual clues in the redistricting process and the political landscape—such as single-party control of mapmaking and irregularities in the redistricting process—that can help courts accurately identify these kinds of gerrymanders. The law firm of O’Melveny & Myers and the Brennan Center are co-counsel for this brief.
Brief of NAACP Legal Defense & Educational Fund, Inc., LatinoJustice PRLDEF, Asian Americans Advancing Justice, Asian American Legal Defense and Education Fund, Lambda Legal Defense and Education Fund, Inc., and the Leadership Conference on Civil and Human Rights in Support of the Plaintiffs
This brief—which was filed by the NAACP Legal Defense and Education Fund in concert with several other prominent civil rights organizations—explains the ramifications of partisan gerrymandering for minority voters. The brief explains how a partisan gerrymandering claim that requires proof of invidious discrimination against voters based on their political party affiliation would benefit minority voters. Amici explain that this type of claim would not conflict with Section 2 of the Voting Rights Act—in fact, it would help protect minority voters from manipulation and deter the "spillover effects" of litigation that uses race-based causes of action to attack political gerrymanders. NAACP LDF, Professor Justin Levitt of Loyola Law School, Los Angeles, and the law firm of Kendall Brill & Kelly LLP are co-counsel for this brief.
This brief—which was filed by the ACLU and several of its state affiliates—explains how redistricting schemes that intentionally entrench one party in power violate the constitutional obligation of government neutrality and, in the process, infringe on voters’ ability to cast meaningful votes. The amici also provide guidance regarding evidence that may be probative of unconstitutional intent and methods that courts can employ to determine when entrenchment has occurred. The ACLU, its state affiliates, and Samuel Issacharoff are co-counsel for the brief.
This brief—which was filed by the Lawyers’ Committee—explains how a rule against partisan gerrymandering would protect minority voters. Among other things, such a ruling would bar partisan discrimination as a defense to redistricting plans that have the purpose or effect of disempowering minority voters. The brief urges the Court to adopt a flexible balancing test for evaluating partisan gerrymandering claims similar to tests it has long used to assess other state election laws. The Lawyers’ Committee and the law firms of Robinson, Bradshaw & Hinson, P.A. and Fish & Richardson P.C. are co-counsel for this brief.
This brief—which was filed by five law professors—shows that the Court’s vote dilution cases acknowledge a difference between the harms that are necessary to grant a plaintiff standing and the harms that vote dilution law ultimately tries to prevent. As the brief explains, plaintiffs generally must show that their particular votes have been diluted to have standing, but the vote dilution cause of action ultimately tries to ensure that the entire legislature is responsive to voter sentiment. As a result, the Court can take state-wide evidence into account when deciding whether plaintiffs have a winning claim. The law firm of Gilbert LLP is counsel for this brief.
This brief—which was filed by Professor Theodore Rave of the University of Houston Law Center—argues that legislators breach their fiduciary duties to their constituents when they draw districts that will entrench their position in the legislature. The brief draws on corporate law to suggest ways in which courts could create incentives for legislators to act in their constituents' best interest, including by creating a safe harbor for redistricting plans drawn by independent commissions.
Briefs Explaining the First Amendment Harms Caused by Extreme Partisan Gerrymandering
This brief—which was filed by 11 law professors who specialize in election law and constitutional law—explains the threats that extreme partisan gerrymandering poses to voters’ First Amendment right of association. Amici also urge the Court to apply strict scrutiny to redistricting schemes that discriminatorily burden a political group’s ability to influence the electoral process by placing them at a significant statewide disadvantage. The law firm of Munger, Tolles & Olson LLP is counsel for this brief.
This brief—which was filed by two non-partisan nonprofits in North Carolina, Democracy North Carolina and The People’s Alliance Fund You Can Vote program—narrates the effects of partisan gerrymandering on voters’ participation in the political process. Amici report a widespread perception across the state that gerrymandering has rigged the political process and that voting or participating in politics no longer matters. The brief also explains how gerrymandering in North Carolina has divided communities and decreased politicians’ responsiveness to their constituents. The law firm of Simpson Thacher & Bartlett LLP is counsel for this brief.
This brief—which was filed by the Floyd Abrams Institute for Freedom of Expression—argues that partisan gerrymandering is a form of viewpoint discrimination that is forbidden under the First Amendment. Existing First Amendment doctrines such as strict scrutiny, the Institute contends, are sufficient to guide courts in policing partisan gerrymanders. The law firm of Cahill Gordon & Reindel LLP and the Yale Law School’s Media Freedom & Information Access Clinic are co-counsel for this brief.
This brief—which was filed by the First Amendment Clinic at Duke Law—argues that North Carolina’s congressional map violates First Amendment bars on viewpoint discrimination. The clinic also details North Carolina’s long history of politically motivated redistricting and its attendant harms to voters’ rights and the state’s political environment.
This brief—which was filed by the American Jewish Committee—explains how extreme partisan gerrymandering violates constitutional bans on state laws that interfere with associational rights, retaliate against people for their political beliefs, or target people for disfavored treatment based on the viewpoints they express. The law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP and the American Jewish Committee are co-counsel for this brief.
This brief—which was filed by ten legal scholars and practitioners—argues that extreme partisan gerrymandering violates the First Amendment’s equality principle, degrades the quality and quantity of electoral speech, and negates voters’ First Amendment rights to a meaningful vote. Professor Burt Neuborne of New York University School of Law is counsel for this brief.
This brief—which was filed by one of the original plaintiffs in Benisek—contends that Maryland’s congressional gerrymander violates the First Amendment and that the Court should model its legal standard for partisan gerrymandering claims after its standard for racial gerrymandering claims. Stephen Shapiro and Professor Alan Morrison of the George Washington University Law School are co-counsel for this brief.
Briefs Explaining How Partisan Gerrymandering Violates Additional Constitutional Values
This brief—which was filed by Professor Michael Kang of Northwestern Pritzker School of Law—explains that the Supreme Court has never held that partisan advantage is a valid basis for government action, and that such advantage cannot be a legitimate basis for redistricting. The law firm of Davis Polk LLP is counsel for Professor Kang’s filing.
Brief of the Anti-Defamation League, County of Santa Clara, Democracy 21, Demos, Friends of the Earth, Government Accountability Project, League of Women Voters, Maryland Chapter, National Council of Jewish Women, National Federation of Democratic Women, North Carolina Justice Center, OneVirginia2021, Virginians for Fair Redistricting, and the Southern Poverty Law Center in Support of the Plaintiffs
This brief—which was filed by an array of good government groups, public policy organizations, and governmental entities—explains how extreme partisan gerrymandering undermines core American democratic principles that originated with the Framers. The brief also shows how the Court’s political question doctrine does not prevent it from adjudicating partisan gerrymandering claims. The law firm of Lowenstein Sandler LLP is counsel for this brief.
This brief—which was filed by one of the original plaintiffs in Benisek—argues that North Carolina’s congressional redistricting plan violates Article I of the Constitution because it “preselects” the party of each district’s congressional representative and subordinates the redistricting process to the Republican party’s goal of controlling Congress. Stephen Shapiro and Michael R. Geroe are co-counsel for this brief.
This brief from two political scientists argues that Maryland's map is unconstitutional under Article IV, Section IV of the U.S. Constitution (the "Guarantee Clause"). The law firm of Tydings & Rosenberg LLP is counsel for this brief.
Briefs Discussing the Role of Social Science in Partisan Gerrymandering Claims
This brief from political scientists Bernard Grofman and Ronald Keith Gaddie proposes a test for unconstitutional partisan gerrymandering that requires plaintiffs to prove that the mapmakers (a) packed or cracked voters in particular districts, (b) did so with invidious intent, and (c) thereby created a map that “persistently costs the party out of power at least one seat.” The brief outlines how various social science measures make this test manageable for the courts to use. The law firm of Orrick, Herrington & Sutcliffe LLP is counsel for this brief.
This brief—which was filed by 27 legal scholars and political scientists—explains why the Court should exercise deference in evaluating the three-judge panel's factual determinations regarding the discriminatory intent and effects of the North Carolina gerrymander, particularly to the extent that those determinations rely on social science evidence. The amici further explain why purported adherence to traditional redistricting principles cannot provide a safe harbor from partisan gerrymandering claims—either in this case or more generally—given technological advances that allow mapmakers to create hyper-partisan maps even within the constraints that those principles impose. Professor Andrew Chin of the University of North Carolina School of Law is counsel for this brief.
This brief from Professor Eric Lander of the Broad Institute explains how courts can use simulated redistricting applications to identify extreme gerrymanders. As the brief shows, courts can easily find signals of extreme partisan gerrymandering by comparing the partisan outcomes of elections under enacted maps to the expected outcomes produced by a range of simulations. The law firm of Smith Duggan Buell & Rufo is counsel for this brief.
This brief from professors Wesley Pegden, Jonathan Rodden, and Samuel Wang provides an overview of the suite of quantitative tools available to assess partisan gerrymandering. The brief also demonstrates that North Carolina’s 2016 congressional plan is a partisan gerrymander when analyzed with a variety of these tools. The law firm of Sidley Austin LLP is counsel for this brief.
This brief—which was filed on behalf of a group of mathematicians, law professors, and law students—offers both a legal standard and a mathematical approach for evaluating gerrymandering claims that are based on the concept of partisan vote dilution. According to the amici, this mathematical approach—which identifies maps that are extreme outliers under any of a number of different metrics—would allow the courts to reliably flag gerrymanders even when mapmakers have not made their partisan intent explicit. The law firm of Gupta Wessler PLLC and Professor Guy-Uriel Charles are co-counsel for this brief.
This brief—which was filed by Judicial Watch, Inc. and the Allied Educational Foundation—warns of legal standards that incorporate social science evidence because such standards run the risk of requiring proportional representation in redistricting. The brief also argues that “traditional redistricting criteria,” such as compactness and contiguity, are the only reliable legal guideposts for policing partisan gerrymandering. Judicial Watch, Inc. is counsel for this brief.
Briefs on the Justiciability of Partisan Gerrymandering Claims
This brief from constitutional scholars explains that both Article I and the Fourteenth Amendment of the U.S. Constitution permit the federal courts to place limits on redistricting. They further show how both the First Amendment and the Due Process Clause of the Fourteenth Amendment bar practices like partisan gerrymandering that discriminate against voters on the basis of their political affiliation. They recommend that the Court apply the same legal standard to partisan gerrymandering claims that it applies to racial gerrymandering claims. The law firm of King & Spalding LLP is counsel for this brief.
Brief of the States of Oregon, California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia in Support of the North Carolina Plaintiffs
This brief—which was filed by twenty-one states and the District of Columbia—advocates for a purpose-and-effects test for partisan gerrymandering claims that focuses on attempts by one party to entrench itself in power. The states argue that this test is manageable and adequately accounts for the states' legitimate interests in shaping their own electoral maps. Ellen F. Rosenblum, Attorney General of Oregon, and Benjamin Gutman, Solicitor General of Oregon, are co-counsel for this brief, leading a panel of state Attorneys General.
This brief—which was filed by Pennsylvania Speaker of the House Michael Turzai—argues that the Elections Clause does not permit federal courts to strike down maps on political fairness grounds. The brief also warns that judicial involvement in redistricting will erode the separation of powers and politicize the courts. The law firms of Baker & Hostetler LLP and Porter Wright Morris & Arthur LLP are co-counsel for this brief.
This brief on behalf of ten states flags the importance of courts maintaining the normal presumption of constitutionality and good faith for government actions when they evaluate legislative intent in partisan gerrymandering cases. The states further contend that partisan purposes are inherent in legislative decisions and that these purposes are neither “invidious,” nor “irrational” under the Fourteenth Amendment. The Texas Solicitor General Kyle D. Hawkins is counsel for this brief.
This brief from the National Republican Redistricting Trust warns the Court against adopting a rule requiring proportional representation, which amici argue is fundamentally at odds with traditional redistricting principles. The law firm of Graves Garrett LLC is counsel for this brief.
This brief—which was filed by the Wisconsin State Senate and State Assembly— contends that partisan gerrymandering claims are non-justiciable because the degree of partisan influence over district lines in a given map cannot be measured. It also warns that a ruling in favor of the plaintiffs will lead to the elimination of “territorial redistricting.” The law firms of Bartlit Beck LLP and Bell Giftos St. John LLP are co-counsel for this brief.
Briefs Providing Other Legal or Factual Context
This brief from organizations that represent local communities—including cities, counties, and towns—argues that partisan gerrymandering disrupts the representation of communities in legislative bodies and stifles local decision-making. It urges the Court to set clear standards for redistricting to guide mapping decisions at the local level. The International Municipal Lawyers Association and G. Michael Parsons, Jr. are co-counsel for this brief.
This brief from Professor David Orentlicher of the UNLV Boyd School of Law stresses the importance of the court adjudicating partisan gerrymandering cases in an “ideologically-balanced” way and encourages the Court to issue only unanimous rulings.
This brief—which was filed by Congressman David Trone, the current representative for Maryland’s Sixth Congressional District—argues that districts that are, among other things, reasonably compact, cohesive, and competitive should not be subject to gerrymandering challenges—even if those districts were drawn with the intent to change the district representative’s partisan affiliation. Under these standards, Congressman Trone contends, Maryland’s Sixth District is not an unconstitutional partisan gerrymander. The law firm Zuckerman Spaeder LLP is counsel for this brief.
This brief from a former member of Texas House of Representatives argues that traditional redistricting principles place a sufficient limit on partisan gerrymandering. Complying with such principles, the brief contends, should provide a safe harbor from any partisan gerrymandering claims. Nixon Law Firm, P.C. and Trainor Law Firm, P.C. are co-counsel for this brief.
This brief—which was filed by the American Civil Rights Union and Southeastern Legal Foundation—contends that the First Amendment should not and cannot provide a basis for partisan gerrymandering claims, because, among other things, that amendment does not address voting. The brief also argues that the plaintiffs’ alleged harms are too general to grant them access to the federal courts. John J. Park, Jr. and the Southeastern Legal Foundation are co-counsel for this brief.