No. 16-1161
In the

Supreme Court of the United States
________________

BEVERLY R. GILL, et al.,
Appellants,
v.
WILLIAM WHITFORD, et al.,
________________

Appellees.

On Appeal from the United States District
Court for the Western District of Wisconsin
________________
BRIEF FOR AMICI CURIAE
WISCONSIN STATE SENATE AND
WISCONSIN STATE ASSEMBLY
IN SUPPORT OF APPELLANTS
________________
KEVIN ST. JOHN
BELL GIFTOS
ST. JOHN LLP
5325 Wall Street
Suite 2200
Madison, WI 53718

PAUL D. CLEMENT
Counsel of Record
ERIN E. MURPHY
MICHAEL D. LIEBERMAN
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
paul.clement@kirkland.com

Counsel for Amici Curiae
April 24, 2017

 TABLE OF CONTENTS
STATEMENT OF INTEREST ................................... 1
SUMMARY OF ARGUMENT .................................... 1
REASONS FOR SUMMARILY REVERSING OR
NOTING PROBABLE JURISDICTION ................. 4
I.

The
Decision
Below
Will
Produce
Unprecedented Federal Intervention In The
State Redistricting Process ................................. 4

II. The Decision Below Rests On A Distorted
View
Of
Electoral
Politics
And
Representative Democracy................................ 11
A. The Constitution Does Not Guarantee
Proportional Representation ...................... 11
B. Voters Who Support Losing Candidates
Are Not Deprived of Representation or
Access to the Political Process ................... 16
C. Party Affiliation Is Not an Immutable
Characteristic ............................................. 19
III. The Decision Below Fails To Adequately
Account For Wisconsin’s Political Geography .. 21
CONCLUSION ......................................................... 26

 ii
TABLE OF AUTHORITIES
Cases
Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015).............................................. 5
Baldus v. Members of Wis. Gov’t
Accountability Bd.,
849 F. Supp. 2d 840 (E.D. Wis. 2012) ......... 6, 13, 15
Bethune-Hill v. Va. State Bd. of Elections,
137 S. Ct. 788 (2017)............................................ 5, 9
Bush v. Vera,
517 U.S. 952 (1996) ................................................ 10
City of Mobile v. Bolden,
446 U.S. 55 (1980) ............................................ 17, 18
Davis v. Bandemer,
478 U.S. 109 (1986) ........................................ passim
Democratic Party v. Wisconsin,
450 U.S. 107 (1981) ................................................ 13
Evenwel v. Abbott,
136 S. Ct. 1120 (2016)............................................ 12
Gaffney v. Cummings,
412 U.S. 735 (1973) ............................................ 4, 10
Gomillion v. Lightfoot,
364 U.S. 339 (1960) .................................................. 5
Growe v. Emison,
507 U.S. 25 (1993) .............................................. 4, 23
Jensen v. Wis. Elections Bd.,
639 N.W.2d 537 (Wis. 2002) ........................ 4, 5, 6, 8
Perry v. Perez,
565 U.S. 388 (2012) .................................................. 9

 iii
Reynolds v. Sims,
377 U.S. 533 (1964) .............................................. 5, 8
Shaw v. Reno,
509 U.S. 630 (1993) ................................................ 16
State v. Fitzgerald,
798 N.W.2d 436 (Wis. 2011) .................................. 14
Thornburg v. Gingles,
478 U.S. 30 (1986) .................................................... 5
Vieth v. Jubelirer,
541 U.S. 267 (2004) ........................................ passim
Vieth v. Pennsylvania,
188 F. Supp. 2d 532 (M.D. Pa. 2002) .................... 20
Whitcomb v. Chavis,
403 U.S. 124 (1971) .......................................... 16, 17
Constitutional Provisions
Wis. Const. art. IV, §3 ................................................ 8
Wis. Const. art. IV, §4 ................................................ 5
Wis. Const. art. IV, §5 ................................................ 5
Other Authorities
Jason Stein, Assembly Speaker Mike
Sheridan acknowledges dating lobbyist,
Wisconsin State Journal (Feb. 2, 2010),
http://bit.ly/2oEwNyK ............................................ 14
Lowenstein & Steinberg, The Quest for
Legislative Districting in the Public
Interest: Elusive or Illusory,
33 UCLA L. Rev. 1 (1985) ...................................... 15
Nathaniel Persily, In Defense of Foxes
Guarding Henhouses,
116 Harv. L. Rev. 649 (2002) ............................... 8, 9

 iv
Pamela S. Karlan, The Fire Next Time:
Reapportionment After the 2000 Census, 50
Stan. L. Rev. 731 (1998) ...................................... 8, 9

 STATEMENT OF INTEREST1
Amici are the legislative bodies to which the
Wisconsin Constitution assigns the task of drawing
state and federal legislative districts. Wis. Const. art
IV, §3. As the Wisconsin legislature, amici thus have
an acute interest in defending the constitutionality of
the districting map challenged here. The legislature
also has an acute interest in ensuring that the task of
redistricting remains, as the people of Wisconsin
intended, with the legislature, not the judiciary.
Finally, as the body responsible for representing
constituents throughout the State, the legislature is
uniquely well-positioned to explain the State’s history,
geography, and politics, and the myriad ways in which
the decision below distorts the nature of
representative democracy in Wisconsin.
SUMMARY OF ARGUMENT
For decades, the decennial task of redistricting in
Wisconsin has devolved into a decennial chore of
litigation. In the 1980s, 1990s, and 2000s, plaintiffs
from one party or another sued in federal court, and in
the face of divided government and partisan gridlock,
federal judges were forced to impose districting plans
for use in state legislative elections. In 2011, the
Wisconsin legislature finally was able to overcome
those obstacles and enact a politically accountable
districting plan that, after a tweak to a single line
Counsel for all parties have consented to this filing. No
counsel for any party authored this brief in whole or in part, and
no entity or person, aside from amici curiae, their members, and
their counsel, made any monetary contribution toward the
preparation or submission of this brief.
1

 2
separating two assembly districts, satisfied all thenextant state and federal requirements. Once again,
however, a federal court has intervened, becoming the
first court in decades to purport to divine a legal basis
to invalidate a districting plan as a partisan
gerrymander.
That decision is not only wrong, but dangerously
so, as it imposes on legislatures a constitutional
requirement so amorphous as to threaten their ability
to carry out their constitutionally assigned task of
drawing districts. It is already hard enough to draw
districts that simultaneously satisfy the competing
demands of the myriad state and federal constraints
on the districting process. If allowed to stand, the
decision below will make it all but impossible for
legislatures to perform that task without running
afoul of one prohibition or another—or at least without
being forced to defend against costly and timeconsuming litigation (even litigation brought, as here,
years after maps were enacted). That result would
serve only to increase the federal judiciary’s alreadyoutsized role in the redistricting process, a result that
this Court has repeatedly discouraged and that
inevitably transfers to federal judges and private
litigants a power that the people assigned to elected
legislators.
Making matters worse, the standard the district
court applied allows plaintiffs to bring partisan
gerrymandering claims on a statewide basis instead of
proceeding district by district. That is no mere foot
fault. That statewide approach not only contravenes
this Court’s precedents, but is premised on a
fundamental misunderstanding of how representative

 3
democracy works in Wisconsin. By assessing the
plaintiffs’ claims at the statewide level, the court
created a right to proportional representation that
neither the U.S. Constitution nor the Wisconsin
Constitution embraces and incorrectly treated
partisan preference as a determinative and
immutable characteristic that has little to do with the
attractiveness of candidates or the attentiveness of
legislators.
Even if statewide gerrymandering claims were
viable, the district court’s methodology failed to
adequately account for the impact of Wisconsin’s
political geography. Democratic voters in Wisconsin
are concentrated in urban areas like Madison and
Milwaukee, while Republican voters are dispersed
more widely throughout the State. As a result, any
districting map based on traditional principles like
compactness and contiguity (which this map
concededly was) will appear to have a pro-Republican
bias under the plaintiffs’ “efficiency gap” theory.
Indeed, the court-drawn plans over the past three
decades produced the same type of pro-Republican
“efficiency gap” as the plan challenged here. If there
really is a standard by which courts can adjudicate
partisan gerrymandering claims, surely it is not one
that treats the natural consequences of political
geography as evidence of a plan’s unconstitutionality.
The decision below is so profoundly out of step
with this Court’s jurisprudence—and with decades of
lower court decisions rejecting comparable claims—as
to warrant summary reversal. At a minimum, the
Court should note probable jurisdiction, as a decision
that threatens to wreak such havoc on the ability of

 4
state legislatures to fulfill their constitutional
responsibility to draw districts readily presents
questions sufficiently substantial to warrant this
Court’s review.
REASONS FOR SUMMARILY REVERSING
OR NOTING PROBABLE JURISDICTION
I.

The
Decision
Below
Will
Produce
Unprecedented Federal Intervention In The
State Redistricting Process.

Nearly half a century ago, this Court expressed
concern about standards “so difficult to satisfy” that
the decennial task of redistricting would be
“recurringly removed from legislative hands and
performed by federal courts.” Gaffney v. Cummings,
412 U.S. 735, 749 (1973). The decision below makes
that fear a reality, adding an amorphous prohibition
on partisan gerrymandering to the ever-growing list of
constraints. In doing so, the decision below wrests
control of districting away from the state legislators to
whom the state constitution assigns that task, and
hands it to federal judges and opportunistic plaintiffs
seeking to accomplish in court what they failed to
achieve at the ballot box. This Court should not
permit such an unwarranted interference in the core
sovereign function of redistricting.
1. Even before the decision below, federal courts
had taken up “seemingly permanent residency” in the
state redistricting process. Jensen v. Wis. Elections
Bd., 639 N.W.2d 537, 540 (Wis. 2002). Although the
Constitution
leaves
States
with
“primary
responsibility for apportionment of their federal
congressional and state legislative districts,” Growe v.
Emison, 507 U.S. 25, 34 (1993), this Court has

 5
imposed at least five federal limitations on state
redistricting.
Specifically, under this Court’s precedents
interpreting the Equal Protection Clause and the
Voting Rights Act (“VRA”), a state legislature must (1)
ensure population equality among its districts,
Reynolds v. Sims, 377 U.S. 533, 568 (1964), and must
not: (2) purposefully discriminate against minority
voters, Gomillion v. Lightfoot, 364 U.S. 339, 341
(1960); (3) dilute the voting strength of sufficiently
large and politically cohesive minority groups,
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); (4)
cause retrogression in minority voting strength in
jurisdictions covered by Section 5, Ala. Legislative
Black Caucus v. Alabama, 135 S. Ct. 1257, 1273
(2015); or (5) notwithstanding the VRA’s command to
consider the impact of district lines on minority voters,
allow racial considerations to predominate over
traditional districting principles absent a compelling
interest, Bethune-Hill v. Va. State Bd. of Elections, 137
S. Ct. 788, 797 (2017).
State legislators not only must reconcile those
not-always-harmonious federal requirements, but also
must obey state redistricting law. In Wisconsin, state
law requires the legislature to draw districts that are
“bounded by county, precinct, town or ward lines”; are
“in as compact form as practicable”; and “consist of
contiguous territory.” Wis. Const. art. IV, §4. The
legislature also must keep assembly districts intact
when drawing senate districts, id. §5, and comply with
a substantial body of case law governing the
redistricting process, see generally Jensen, 639 N.W.2d
at 543.

 6
The overlap and interplay among and between
those rules has contributed to the unfortunate reality
that redistricting in Wisconsin is “almost always
resolved through litigation rather than legislation.”
Id. at 540. Indeed, every districting cycle since 1972
has included trips to federal court. Baldus v. Members
of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840,
843 (E.D. Wis. 2012). In the 1980 cycle, the governor
vetoed the legislature’s plan; in the 1990 cycle,
another veto threat prevented the legislature from
passing a plan; and in the 2000 cycle, no plan
materialized because a divided legislature could not
overcome partisan gridlock. JS.App.9-11. All three
times, plaintiffs filed lawsuits alleging that the prior
decade’s plan had become unconstitutional, and all
three times, federal courts imposed plans of their own
design. Id.
Then, in 2011, after three decades of litigation and
court-drawn plans, a minor miracle occurred: The
legislature passed a districting plan (“Act 43”) that
obtained the governor’s approval and, after tweaks to
two districts, survived challenges under state law, the
VRA, and this Court’s racial gerrymandering
precedents.
That plan, moreover, scrupulously
complied with traditional districting criteria and
compared favorably to prior court-drawn plans in
terms of compactness, municipal splits, and
population deviations. JS13. Indeed, the plaintiffs in
this case have not claimed that a single district failed
to comport with traditional districting criteria.
JS.App.235.
But
not
even
that
once-in-a-generation
accomplishment was enough to keep redistricting

 7
under state control. Four years and two election cycles
after Act 43’s enactment, a group of plaintiffs filed
partisan gerrymandering claims in federal court.
After trial (and a third election under Act 43), a
divided three-judge district court declared that it had
divined a workable standard for partisan
gerrymandering claims and, applying that standard
without any advance warning, invalidated Act 43 as
an unconstitutional partisan gerrymander. JS16-18.
That decision, if allowed to stand, would
extinguish any last hope for state autonomy in the
redistricting process. As difficult as it is for state
legislatures to navigate partisan gridlock and legal
roadblocks, allowing claims like plaintiffs’ to proceed
(much less prevail) would make federal-court
litigation unavoidable. After all, just as nature abhors
a vacuum, “court action that is available tends to be
sought.” Vieth v. Jubelirer, 541 U.S. 267, 300 (2004)
(plurality opinion).
And given the reality that
redistricting is an inherently political task, “there is
almost always room for an election-impeding lawsuit”
alleging excessive partisan motivation for the
boundaries of one district or another. Id. at 286.
Moreover, the indeterminacy of the district court’s
test—and of any test attempting to measure whether
an inherently partisan body is being “too partisan”—
means the outcome of that litigation will inevitably be
uncertain, which will incentivize resort to the courts
“not just where it is necessary,” but wherever it is “in
the interest of the seeking party.” Id. at 300. And
such litigation always will be in the interest of
whichever party finds itself out of power, as “factions
that foresee ultimate defeat in the political process”

 8
predictably will “obstruct redistricting in the hope of
throwing the enterprise into courts where they may
fare better.” Pamela S. Karlan, The Fire Next Time:
Reapportionment After the 2000 Census, 50 Stan. L.
Rev. 731, 735 (1998).
2. The regular insertion of the judiciary into the
state districting process not only would cause delay
and bring “partisan enmity” upon the courts, Vieth,
541 U.S. at 301, but also would transfer power over
redistricting from elected state legislators to
unaccountable courts and litigants unhappy with
electoral outcomes. That would do far more to
undermine than to advance the “fair and effective
representation” that redistricting is intended to
promote. Reynolds, 377 U.S. at 565-66. It is no
accident that the Wisconsin Constitution—like that of
almost every State—assigns redistricting to the
legislative branch.
Wis. Const. art. IV, §3.
Redistricting is not just about lines on a map; it is a
substantive act of policymaking through which
legislators “make the tough value-laden decisions as
to how communities should be represented,” and foster
“relationships
between
representatives
and
constituents that fit into larger public policy
programs.” Nathaniel Persily, In Defense of Foxes
Guarding Henhouses, 116 Harv. L. Rev. 649, 679
(2002).
Because redistricting affects “the political
landscape for the ensuing decade and thus public
policy for years beyond,” it works best when it goes
through the same “give-and-take of the legislative
process” as any other act of policymaking. Jensen, 639
N.W.2d at 540. Legislators know every detail of their

 9
districts and have unique access to their colleagues’
collective knowledge, allowing them to undertake the
“careful assessment of local conditions” necessary to
ensure fair and effective representation. BethuneHill, 137 S. Ct. at 801. Federal courts, on the other
hand, lack the same intimate knowledge of local
conditions. Instead, courts must draw districts from a
“cold record” of maps and charts, meaning courts
unfortunately are far more likely than legislators to
unwittingly disrupt cooperative projects or split
communities of interest. See Persily, supra, at 678
n.95.
Redistricting litigation also grants private
litigants (and the organizations that fund or control
their conduct) outsized control over districting.
Courts cannot adjudicate gerrymandering claims until
someone files a lawsuit, and even then, must limit
their analysis to the challenged aspects of the plan.
See Perry v. Perez, 565 U.S. 388, 397 (2012). Private
litigants decide which districts to challenge, which
legal theories to press, and which remedies to propose.
Those litigants almost by definition will be dissatisfied
with the outcome of the elections that gave rise to the
legislative majorities that drew the challenged maps.
See Karlan, supra, at 735. Making matters worse, the
procedural safeguards that apply in other types of
aggregate litigation are absent from redistricting
litigation: There is no opt-out procedure for citizens
who prefer the enacted plan, no requirement that
litigants’ objections to the plan be typical, and no
mechanism to force litigants to reveal their
motivations or funding sources.

 10
Finally, the threat of partisan gerrymandering
claims would have the perverse effect of increasing the
legislature’s attention to partisan concerns. After
drawing districts to comply with traditional
principles, legislators would have to check their work
to see whether the resulting map “favored” one
party—a common natural consequence of political
geography. See infra Part III; Vieth, 541 U.S. at 359
(Breyer, J., dissenting). If so, legislators would then
be forced to adjust districts on explicitly partisan
terms—i.e., to engage in partisan gerrymandering—to
undo the plan’s naturally occurring “partisan slant.”
That, of course, would just invite partisan
gerrymandering claims from members of the other
political party, placing state legislatures in the same
damned-if-they-do-damned-if-they-don’t position they
often face when trying to comply with both the VRA
and this Court’s racial gerrymandering precedents—
but without the overriding justification of avoiding
racial discrimination. See Bush v. Vera, 517 U.S. 952,
977 (1996).
In short, if the decision below stands, the only
guarantees are an increased federal role in the state
redistricting process and increased uncertainty for
state legislatures drawing district lines. This Court’s
decision to enter “the political thicket” of redistricting
to adjudicate one-person, one-vote cases and racial
gerrymandering cases “does not mean that it should
become bogged down in a vast, intractable
apportionment slough, particularly when there is
little, if anything, to be accomplished by doing so.”
Gaffney, 412 U.S. at 749-50.

 11
II. The Decision Below Rests On A Distorted
View
Of
Electoral
Politics
And
Representative Democracy.
Even assuming some partisan gerrymandering
claims might be justiciable when particular districts
foreclose any other rational explanation for their
bizarre contours, the district court erred by allowing
the plaintiffs to pursue their claim at the statewide
level. As the jurisdictional statement explains, five
Justices in Vieth held such statewide claims
nonjusticiable.
JS21-25.
And for good reason:
Statewide partisan gerrymandering claims are
premised on a legal theory that this Court has
repeatedly rejected and on factual assumptions that
are inconsistent with how representative democracy
works in Wisconsin and across the country.
A. The Constitution Does Not Guarantee
Proportional Representation.
The district court’s decision is premised on a
constitutional right that does not exist. The two
measures
the
court
considered
were
the
“entrenchment” test and the “efficiency gap” test, both
of which examine the extent to which statewide vote
totals for candidates from one party translated into
seats for that party in the state legislature as a whole.
JS.App.145-77. In the court’s view, too large a
discrepancy between statewide votes and statewide
seats inflicts constitutional harm upon members of the
“underrepresented” party. In effect, then, the court
concluded that “there is a right to not have
disproportional representation,” which “is tantamount
to saying there is a right to have proportional

 12
representation.”
dissenting).

JS.App.272

(Griesbach,

J,

That approach cannot be reconciled with this
Court’s precedents. Not only has a majority of the
Court rejected statewide partisan gerrymandering
claims, JS21-25; the Court’s cases “clearly foreclose
any claim that the Constitution requires proportional
representation or that legislatures in reapportioning
must draw district lines to come as near as possible to
allocating seats to the contending parties in
proportion to what their anticipated statewide vote
will be.” Davis v. Bandemer, 478 U.S. 109, 130 (1986)
(plurality opinion).
The Constitution requires States to implement a
“Republican Form of Government,” U.S. Const. art.
IV, §4, but it otherwise affords States “significant
leeway” in deciding how votes cast by their citizens
should translate into representation in the state
legislature. Evenwel v. Abbott, 136 S. Ct. 1120, 1133
(2016) (Thomas, J., concurring). States are thus
equally free to adopt a district-based scheme, a
proportional representation scheme, or any other
apportionment method consistent with a Republican
form of government. The differences between systems
simply “reflect different conclusions about the proper
balance of different elements of a workable democratic
government.” Vieth, 541 U.S. at 358 (Breyer, J.,
dissenting). The Constitution takes no sides in that
debate.
By granting plaintiffs relief based on
purported disproportionality between votes cast and
statewide representation, the decision below
enshrines a political theory that the Framers allowed
the States to reject.

 13
The difficulties with the decision below are not
just theoretical. The assumptions built into the court’s
analysis do not accord with the realities of
representative democracy, in Wisconsin or elsewhere.
First, by equating votes for individual candidates with
support for a statewide political party, the court
assumed that the only factor determining voting
behavior is political affiliation. That “is assuredly not
true” anywhere, Vieth, 541 U.S. at 288—much less in
Wisconsin, the quintessential “purple state” where
primaries are open and voters “regularly elect
comparable numbers of Democrats and Republicans.”
Baldus, 849 F. Supp. 2d at 843; see Democratic Party
v. Wisconsin, 450 U.S. 107, 110-11 (1981).
Indeed, election results in Wisconsin reveal an
electorate that chooses candidates based on their
records and positions, not just their political parties.
Examples abound of state legislative candidates
vastly outperforming the Presidential candidate in
their districts. In Assembly District 96, for instance,
Republican Lee Nerison has held his seat since 2005
even though his constituents overwhelmingly
supported President Obama in 2008 and 2012.2 In
2012, for example, Nerison earned 59.5% of the twoparty vote while Mitt Romney received just 43.6% of
the Presidential two-party tally.
Likewise,
Republican Travis Tranel defeated a Democratic
incumbent in District 49 in 2010 and then held his
seat in 2012, outperforming Romney by 11 points. Not
so coincidentally, both of those legislators have

2 Election results are available at http://elections.wi.gov/
elections-voting/results.

 14
crossed party lines on occasion, including by opposing
the highly contentious Budget Repair Bill of 2011.3
The same dynamic is evident in the districts that
have changed hands within the same districting cycle.
In District 28, for instance, longtime Republican
incumbent Mark Pettis was unseated by Democrat
Ann Hraychuck in 2006, who herself was unseated by
Republican Eric Severson in 2010. Voters in District
68 elected a Democrat in 2002, a Republican in 2004,
a Democrat in 2008, and a Republican in 2010. And
this phenomenon is not confined to traditional “swing”
districts. The right candidate at the right time can
prevail when an incumbent in even the “safest” seat
adopts unpopular positions or loses the trust of his
constituency. In 2010, for example, Joe Knilans
defeated the embattled Speaker of the Assembly,4 who
in 2006 had earned 69.3% of his district’s vote and ran
unopposed in 2008.
As those results reflect, Wisconsin voters respond
to the individual candidates in their districts and their
positions on important issues; they do not just blindly
support one party or the other. By reducing elections
to an “R” or “D” on the ballot, the district court
undervalued the discernment of Wisconsin voters and
oversimplified the nuances of Wisconsin politics.
The Wisconsin Assembly’s roll call vote on the Budget Repair
Bill
is
available
at
http://docs.legis.wisconsin.gov/
2011/related/votes/assembly/av0184.
For discussion of the
controversy surrounding the bill, see State v. Fitzgerald, 798
N.W.2d 436, 442-443 (Wis. 2011) (Prosser, J., concurring).
3

4
See Jason Stein, Assembly Speaker Mike Sheridan
acknowledges dating lobbyist, Wisconsin State Journal (Feb. 2,
2010), http://bit.ly/2oEwNyK.

 15
Second, with its statewide focus, the district court
wrongly assumed that each voter’s preference for the
Democrat or Republican in her district reflects a
preference for every Democrat or Republican across
the State, and a desire for that party to achieve
statewide gains. In reality, voters cast votes for
individual candidates in individual districts, “not for a
statewide slate of legislative candidates put forward
by the parties.” Davis, 478 U.S. at 159 (O’Connor, J.,
concurring). There are “separate elections between
separate candidates in separate districts, and that is
all there is.”
Vieth, 541 U.S. at 289 (quoting
Lowenstein & Steinberg, The Quest for Legislative
Districting in the Public Interest: Elusive or Illusory,
33 UCLA L. Rev. 1, 59-60 (1985)). A voter who
generally favors Republicans might vote for the
Democratic candidate in her district if that candidate
prioritizes issues important to her, or if she finds the
Republican candidate too extreme, or for any number
of other reasons. And while that voter may prefer to
see the Democratic candidate prevail in her district,
she may prefer the Republican candidate in other
districts, and may prefer a majority-Republican
legislature.
As that unremarkable example illustrates,
political parties are “big tents” containing voters with
widely divergent views about policy, governance, and
representation. Baldus, 849 F. Supp. 2d at 851. And
that does not even account for consistently
independent voters, who may prioritize preserving a
balance of power in the legislature above whichever
candidate they find more attractive in a given election.
It thus makes no sense to treat losses by a party’s
statewide slate of candidates as inflicting harm on

 16
every individual voter who voted for one of those
candidates. An individual voter “cannot vote for such
candidates,” “is not represented by them in any direct
sense,” and might not support them at all. Davis, 478
U.S. at 153 (O’Connor, J., concurring).
B. Voters Who Support Losing Candidates
Are Not Deprived of Representation or
Access to the Political Process.
The district court’s focus on statewide election
results also caused it to incorrectly presume that
voters who supported losing candidates are deprived
of representation in the state legislature. That
premise is “antithetical to our system of
representative democracy.” Shaw v. Reno, 509 U.S.
630, 648 (1993). In Wisconsin and across the country,
legislators represent all of their constituents—not just
the ones who voted for them.
While a losing
candidate’s
supporters
might
be
“without
representation” by their candidate of choice,
Whitcomb v. Chavis, 403 U.S. 124, 153 (1971), courts
“cannot presume … that the candidate elected will
entirely ignore the interests of those voters.” Davis,
478 U.S. at 132. Instead, those voters are “deemed to
be adequately represented by the winning candidate
and to have as much opportunity to influence that
candidate as other voters in the district.” Id. at 132.
Because voters are represented even if they voted
for the losing candidate, this Court has rejected equal
protection claims that are based merely on the fact
“that a particular apportionment scheme makes it
more difficult for a particular group in a particular
district to elect the representatives of its choice.” Id.
at 131-32. In Whitcomb, for instance, this Court

 17
rejected gerrymandering claims filed by minority
voters who were submerged within a multi-member
district. 403 U.S. at 149-53. While the Court
acknowledged that those voters had been unable to
elect their candidates of choice, it rejected their claims
because they failed to show that they were unable to
participate in and influence the political process. Id.;
see also City of Mobile v. Bolden, 446 U.S. 55, 111 n.7
(1980) (Marshall, J., dissenting) (“When all that is
proved is mere lack of success at the polls, the Court
will not presume that members of a political minority
have suffered an impermissible dilution of political
power.”).
Despite this Court’s repeated holdings that
plaintiffs must show more than the failure to win
elections to prevail on partisan gerrymandering
claims, the district court treated election results alone
as proof that Democratic voters were denied equal
protection. That myopic focus not only contravenes
this Court’s precedents, but also obscures how
legislators serve their constituents and how
constituents influence their legislators. Wisconsin
voters cast their votes in private, with their choices
protected by the sanctity of the ballot box. Those who
voted for the losing candidate have as much access to
sitting legislators as anyone else, whether they “seek
help in dealing with a government agency, to express
a view about pending legislation, or to request help in
securing funds for repairing a local bridge or
extending a state bike trail.” JS.App.289 (Griesbach,
J., dissenting). The name of the majority party has no
bearing on the services that legislators provide their
constituents on a day-to-day basis.

 18
Moreover, voters can influence the political
process in myriad ways beyond voting for state
legislators. If a minority party truly “entrenches”
itself in a state legislature, “the majority should be
able to elect officials in statewide races—particularly
the Governor—who may help to undo the harm that
districting has caused the majority’s party,” Vieth, 541
U.S. at 362 (Breyer, J., dissenting), whether by
vetoing legislation or by wielding influence in the next
round of redistricting. That built-in structural check
is far preferable to an intrusive judicial check based
on questionable justifications and unadministrable
tests. And even apart from elections for statewide
office, voters are members of countless political, social,
and economic groups that can “bind together into
coalitions having enhanced influence, and have the
respectability necessary to affect public policy.”
Bolden, 446 U.S. at 111 n.7 (Marshall, J., dissenting).
Furthermore, treating all votes cast for the losing
candidate as “wasted” ignores the significant influence
those votes have on legislative behavior. The premise
of plaintiffs’ “efficiency gap” theory is that any vote not
essential to the election result—i.e., every vote for a
losing candidate and any vote for the winning
candidate beyond the 50 percent threshold—is a
“wasted” vote. JS14. But these so-called “wasted
votes” often are determinative of how legislators
govern. Votes for the losing candidate in a close race
can force the winning candidate to “adopt more
moderate, centrist positions” and to be more
responsive to independent and swing voters.
JS.App.287. Similarly, “wasted” votes for the winning
candidate in a landslide allow that candidate to move
further from the center, as he will likely be more

 19
concerned about a primary challenge from within the
party than a threat from the other party. Id. None of
these votes is truly “wasted,” and the district court’s
failure to account for that reality undermines both its
methodology and conclusions.
C. Party Affiliation Is Not an Immutable
Characteristic.
Finally, by concluding from the statewide results
of two elections that Act 43 will impede the ability of
Democratic voters to translate their votes into
legislative seats throughout the entire decade, the
district court failed to recognize that “voters can—and
often do—move from one party to the other.” Davis,
478 U.S. at 156 (O’Connor, J., concurring). Each
election cycle, “the candidates change, their strengths
and weaknesses change, their campaigns change,
their ability to raise money changes, the issues
change—everything changes.” Vieth, 541 U.S. at 289.
In Wisconsin especially, winning elections requires
support from independent voters and from members of
the other party, and yesterday’s votes do not
guarantee tomorrow’s victories.
Election results in Wisconsin over the past two
decades prove the point, as the state legislature has
experienced significant intra-decade volatility in
partisan balance. After the first election under the
districting plan imposed by a federal court in 2002,
Republicans held majorities in both chambers of the
state legislature. After two more elections—and with
no intervening changes in district lines—Republicans
had lost control of both chambers, losing three senate
seats and 12 assembly seats. Similarly, after the first
election under the plan at issue here, Republicans held

 20
18 senate seats and 60 assembly seats. Since then,
Republicans have added two senate seats and four
assembly seats, again without any change in district
lines.
The same shifts are evident at the county level. In
2008, President Obama carried 59 of Wisconsin’s 72
counties. In 2016, President Trump carried 60 of
Wisconsin’s 72 counties—picking up 47 counties that
Senator McCain had lost eight years earlier. Thus, in
the span of eight years—less than the lifespan of a
decennial districting map—nearly two-thirds of
Wisconsin’s counties flipped their party preference.
Voters’ party affiliation is simply not set in stone, and
seats held by one party can (and do) change hands
when effective candidates run effective campaigns.
That lesson applies beyond the borders of
Wisconsin, including to the districts this Court
considered in Vieth. The plaintiffs in Vieth alleged
that Pennsylvania’s congressional plan was “rigged to
guarantee that thirteen of Pennsylvania’s nineteen
congressional representatives will be Republican.”
Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 546 (M.D.
Pa. 2002). But in elections held just two years after
this Court found those claims nonjusticiable, a
majority of Pennsylvania’s congressional seats were
held by Democrats, with Republicans retaining just
eight of the 13 supposedly guaranteed seats.
JS.App.243. That result mirrored one that this Court
discussed in Vieth: In elections held just five days
after a district court found that North Carolina’s
system for electing judges unconstitutionally
disadvantaged Republican candidates, every single

 21
Republican candidate running for superior court judge
was victorious. Vieth, 541 U.S. at 287 n.8.
Under the district court’s approach, statewide
partisan gerrymandering claims would require courts
to focus on election results, including by predicting the
results of future elections. But without any knowledge
about the candidates who will run or the nationwide
trends that will prevail, courts adjudicating such
claims will be forced to view politics through a purely
partisan lens, attributing electoral success solely to
party affiliation. It is little surprise that experience
has proven such predictions unreliable, as federal
judges are ill-suited to the difficult task of political
prognostication, and viewing future elections through
a lens focused only on parties obscures the more
complicated realities of representative democracy.
III. The Decision Below Fails To Adequately
Account
For
Wisconsin’s
Political
Geography.
The district court’s analysis also failed to
adequately account for the unavoidable effects of
Wisconsin’s political geography. The “efficiency gap”
measurement, which the court treated as
“corroborative evidence” of partisan gerrymandering,
is calculated by taking the difference between the
“wasted” votes cast for each party statewide, and then
dividing that figure by the total number of votes cast
in the election. JS.App.160-61, 176. The party whose
voters cast the fewest “wasted” votes is said to have
translated votes into legislative seats more
“efficiently” than the other party.
JS.App.161.
According to the plaintiffs, an efficiency gap of 7% or

 22
more renders a plan presumptively unconstitutional.
JS.App.33-34.
Treating all votes for losing candidates and excess
votes for winning candidates as “wasted” not only
misunderstands how voting affects legislative
behavior, see supra Part II; it also sets up the
Wisconsin legislature for failure because of how voters
are dispersed throughout the State.
While
“Democratic voters are uniquely packed in urban
centers like Milwaukee and Madison,” JS.App.201,
Republicans are more evenly dispersed. Republicanleaning election wards thus tend to be more politically
diverse than Democratic-leaning ones. Indeed, while
“there are a substantial number of wards that are over
eighty percent Democratic,” there are “virtually no
wards that are similarly Republican.” JS.App.200.
Because of those geographic realities, elections in
Democratic-leaning districts are more likely to be
landslides, and elections in Republican-leaning
districts are more likely to be close calls. And not so
coincidentally, those two outcomes are precisely the
types that result in the most “wasted” votes for
Democratic candidates under the plaintiffs’ “efficiency
gap” theory. When a party wins a seat by a large
margin, all the votes for the candidate who would have
won with thousands fewer are marked as “wasted,”
and when a party loses a seat by a small margin, the
thousands of votes cast for the candidate who came up
short are likewise considered “wasted.” As a result, it
is nearly impossible to draw districting maps in
Wisconsin that comply with traditional districting
principles (as required by the state constitution) but

 23
do not result in an “efficiency gap” favoring
Republicans.
Indeed, the court-drawn plans Wisconsin used in
the past three decades all were intended to be
politically neutral, yet all resulted in efficiency gaps
favoring Republicans. JS.App.308-09. Most recently,
the judge-drawn plan in effect from 2000 to 2010
favored Republicans with an average efficiency gap of
7.6%. JS.App.245. Thus, under the plaintiffs’ own
test, that court-drawn plan was a presumptively
unconstitutional partisan gerrymander. The district
court attempted to brush that problem aside by noting
that court-drawn plans would survive constitutional
challenges because they are not drawn with partisan
“intent,” JS.App.171-72, but that proposed solution
turns a truism—that partisan bodies are motivated by
political considerations when redistricting, see Vieth,
541 U.S. at 285—into an element of a constitutional
violation. The fact that legislatures are inherently
political bodies is no reason to give federal courts more
leeway than state legislatures in drawing districts, at
least not if states are to retain “primary responsibility
for apportionment of their … state legislative
districts.” Growe, 507 U.S. at 34 (1993).
Moreover, the plaintiffs’ demonstration plan in
this case—which their expert tried to design with “an
efficiency gap as low to zero as he could get it”—still
resulted in a pro-Republican efficiency gap of 2.2%,
which increases to 3.89% when adjusted for
incumbency effects. JS.App.202-03 & n.355. In other
words, the plaintiffs’ own expert—operating without
the time pressures, partisan battles, or incumbency
concerns that typically constrain the redistricting

 24
process—was unable to design a districting plan that
did not result in what the efficiency gap theory would
label a “pro-Republican bias.” JS.App.202.
While the district court acknowledged that
Wisconsin’s political geography inherently favors
Republicans under an “efficiency gap” analysis, it did
so only when discussing whether the legislature had a
permissible “justification” for its purported overreliance on politics—i.e., after it already had
concluded that Act 43 burdened the representational
rights of Democratic voters in Wisconsin.
See
JS.App.176-77.
To support that conclusion, the
district court highlighted the efficiency gaps of the
2012 and 2014 elections, which were 13% and 10%,
respectively. But given the impossibility of creating a
districting plan in Wisconsin with an efficiency gap of
0%, the court should have—at a minimum—adjusted
those 13% and 10% figures to reflect the natural
political geography of the State, which itself was
responsible for a 7.6% efficiency gap between 2000 and
2010.
By instead measuring from a baseline of 0%, the
court skewed the analysis in a way that inherently
disadvantages Republicans. Because even neutral
plans produce a pro-Republican efficiency gap above
the 7% threshold, passing the efficiency gap test would
require Republican legislators to engage in “heroic
levels of nonpartisanship” and to draw district lines
that reduce the naturally occurring Republican
advantage. JS.App.245-46 (Griesbach, J., dissenting).
Yet if Democrats controlled the state legislature, they
could draw the most pro-Democratic plan possible—
e.g., the demonstration plan the plaintiffs’ expert

 25
submitted in this case—without running afoul of the
“efficiency gap” theory. If there really is a workable
standard for partisan gerrymandering claims, surely
it is not one that would allow only one political party
to engage in the “lawful and common practice” of
drawing district lines to secure party advantage.
Vieth, 541 U.S. at 286.
Indeed, the minimum
threshold for any viable test for identifying partisan
gerrymandering is that it should be equally opposed
by partisan legislative majorities of both parties and
equally welcomed by California Republicans and Utah
Democrats. The fact that the district court had to
resort to a theory with a built-in partisan bias is a sure
sign that if a justiciable test for partisan
gerrymandering is out there, it is not that one.

 26
CONCLUSION
For the foregoing reasons, this Court should
summarily reverse or note probable jurisdiction.
Respectfully submitted,
KEVIN ST. JOHN
BELL GIFTOS
ST. JOHN LLP
5325 Wall Street
Suite 2200
Madison, WI 53718

PAUL D. CLEMENT
Counsel of Record
ERIN E. MURPHY
MICHAEL D. LIEBERMAN
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
paul.clement@kirkland.com

Counsel for Amici Curiae
April 24, 2017