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Briefs Explaining How to Create a Workable Doctrinal Test for 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 for the Brennan Center for Justice at N.Y.U. School of Law in Support of Appellees

Summary: This brief, filed by the Brennan Center for Justice, identifies readily discernable evidentiary signposts that can help courts accurately differentiate between lawful redistricting and unlawful, extreme partisan gerrymanders. As the brief explains, two factors are in fact highly correlated with extreme partisan gerrymanders: (a) single-party control of the redistricting process, and (b) a recent history of close statewide elections. The Brennan Center and the law firm O’Melveny & Myers are co-counsel for this brief.

Brief of NAACP Legal Defense & Educational Fund, Inc., Latino Justice PRLDEF, Asian Americans Advancing Justice – AAJC, Asian Americans Advancing Justice – Asian Law Caucus, Lambda Legal Defense and Education Fund, Inc., and Leadership Conference on Civil and Human Rights in Support of Appellees

Summary: This brief, filed by the NAACP Legal Defense and Education Fund in concert with several other prominent civil rights organizations, explains the ramifications of the doctrine and practice of partisan gerrymandering for minority voters. The brief demonstrates how a properly structured claim for partisan gerrymandering—requiring proof of invidious discrimination against voters based on their political party affiliation—would help protect minority voters from improper manipulation. Further, as the organizations explain, such a claim would not be in tension with Section 2 of the Voting Rights Act. The civil rights organizations, in fact, said that such a claim 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 Kendall Brill & Kelly are co-counsel for this brief.

Brief of the League of Women Voters in Support of Appellees

Summary: This brief, filed by the League of Women Voters, explains why a mapmaker’s adherence to “traditional redistricting principles” should not immunize the resulting map from constitutional challenge as a partisan gerrymander. The brief warns that mapmakers can draw districting plans that have the facial appearance of normalcy while also intentionally creating impermissible electoral advantages for one party. The League of Women Voters and the law firm Boies Schiller Flexner are co-counsel for this brief.

Brief of Law Professors in Support of Appellees (Pamela Karlan, et al.)

Summary: This brief, filed by a coalition of 11 law professors led by Pamela Karlan, explains how the lack of a judicially enforceable constraint on partisan gerrymandering has eroded the coherence and integrity of the Supreme Court’s election law doctrines. In the absence of a recognized claim for unconstitutional partisan gerrymandering, the professors argue, partisan gerrymanders are improperly addressed as one-person-one-vote claims, racial-gerrymandering claims, or claims of vote-dilution under Section 2 of the Voting Rights Act, inevitably distorting those areas of law. The brief assures the Court that recognizing a partisan-gerrymandering claim would not unduly curtail states’ redistricting options or encroach on their legislative authority. The Stanford Law School Supreme Court Litigation Clinic is counsel for this brief.

Brief of the Georgia State Conference of the NAACP, Lavelle Lemon, Marlon Reid, Celeste Sims, Patricia Smith, and Coley Tyson in Support of Appellees

Summary: This brief, filed by the plaintiffs in a pending redistricting lawsuit in Georgia, proposes a standard to account for the many ways partisan gerrymandering can manifest: Whether the district lines were drawn with the invidious intent to minimize the voting strength of a particular group of voters. The brief advises that lower courts can develop subsidiary standards on a case-by-case basis to respond to the unique characteristics of the specific gerrymandering tactics at issue in a case. The Lawyers’ Committee for Civil Rights Under Law and the law firm Bryan Cave are co-counsel for this brief.

Brief of Professor Theodore Rave in Support of Appellees

Summary: This brief, 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.