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Briefs Explaining the First Amendment Harms Caused by Extreme Partisan Gerrymandering

To help court-watchers sort through more than one thousand pages of amicus briefs in Gill v. Whitford, the Brennan Center has prepared an annotated guide breaking down each brief’s most important arguments.

September 19, 2017

Brief of Election Law and Constitutional Law Scholars in Support of Appellees (Daniel Tokaji, et al.)

Summary: This brief, filed by a group of 12 law professors who specialize in election law and constitutional law, provides an account of the threats extreme partisan gerrymandering poses to voters’ First Amendment right of association. In addition to diagnosing the constitutional problem with extreme gerrymanders, the professors urge the Court to apply the most searching form of judicial review—known as “strict scrutiny”—to redistricting schemes that intentionally discriminate against a political party and its members by placing them at a significant disadvantage relative to their statewide voting strength. The law firm Munger, Tolles & Olson is counsel for this brief.

Brief of the American Civil Liberties Union, the New York Civil Liberties Union, and the ACLU of Wisconsin Foundation in Support of Appellees

Summary: This brief, filed by the ACLU, two of its state affiliates, and Professor Samuel Isaacharoff of the New York University School of Law, explains how redistricting schemes that intentionally entrench one party in power violate the constitutional obligation of government neutrality and, in the process, impinge on voters’ ability to cast meaningful votes and associate to advance their political interests through the ballot. The amici also provide guidance regarding the kinds of evidence that may be probative of unconstitutional intent and methods that courts can employ to determine when entrenchment has occurred.

Brief of Colleagues of Professor Norman Dorsen in Support of Appellees

Summary: This brief, filed by a group of legal scholars and practitioners on behalf of deceased Professor Norman Dorsen, explains how extreme gerrymandering renders genuinely contestable elections essentially extinct and thus violates the First Amendment rights of all voters regardless of their party affiliation. Professor Burt Neuborne of New York University School of Law is counsel for this brief.