No. 17-333
IN THE

Supreme Court
of the United States
___________
O. JOHN BENISEK, EDMUND CUEMAN, JEREMIAH DEWOLF,
CHARLES W. EYLER, JR., KAT O’CONNOR,
ALONNIE L. ROPP, AND SHARON STRINE,
Appellants,
v.
LINDA H. LAMONE, STATE ADMINISTRATOR OF ELECTIONS,
AND DAVID J. MCMANUS, JR., CHAIRMAN OF THE
MARYLAND STATE BOARD OF ELECTIONS,
Appellees.
___________

On Appeal from the United States
District Court for the District of Maryland
___________
BRIEF OF BIPARTISAN CURRENT AND FORMER
MEMBERS OF CONGRESS AS AMICI CURIAE IN
SUPPORT OF APPELLANTS
___________

ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAVID H. GANS
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amici Curiae
January 29, 2018

* Counsel of Record

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICI CURIAE ..........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT .........................................................

6

I. THE FIRST AMENDMENT DOES NOT
PERMIT
THE
GOVERNMENT
TO
SUBORDINATE VOTERS ON ACCOUNT
OF THEIR POLITICAL AFFILIATION ......

6

II. THE
CONSTITUTION
REQUIRES
REDRESS BY THE COURTS WHEN
STATES SUBORDINATE ADHERENTS
OF A POLITICAL PARTY BASED ON
VIEWPOINT IN VIOLATION OF THE
FIRST
AND
FOURTEENTH
AMENDMENTS ............................................

11

CONCLUSION .....................................................

14

APPENDIX: LIST OF AMICI ..............................

1A

(i)

 ii
TABLE OF AUTHORITIES
Cases

Page(s)

Anderson v. Celebrezze,
460 U.S. 780 (1983) ................................
Ariz. Free Enter. Club’s Freedom Club PAC
v. Bennett,
564 U.S. 721 (2011) ................................

3, 10

3, 7

Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n,
135 S. Ct. 2652 (2015) ............................

3

Bd. of Cty. Comm’rs v. Umbehr,
518 U.S. 668 (1996) ................................

9

Bd. of Educ. v. Pico,
457 U.S. 853 (1982) ................................

9

Burdick v. Takushi,
504 U.S. 428 (1992) ................................

10

Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) ................................

7

Citizens United v. FEC,
558 U.S. 310 (2010) ................................

7

Clinton v. City of New York,
524 U.S. 417 (1998) ................................

12

Cooper v. Harris,
137 S. Ct. 1455 (2017) ............................

14

Elrod v. Burns,
427 U.S. 347 (1976) ................................ 7, 8, 9

 iii
TABLE OF AUTHORITIES – cont’d
Page(s)
Heffernan v. City of Paterson,
136 S. Ct. 1412 (2016) ............................

9

Karcher v. Daggett,
462 U.S. 725 (1983) ................................

14

Kirkpatrick v. Preisler,
394 U.S. 526 (1969) ................................

14

Kusper v. Pontikes,
414 U.S. 51 (1973) ..................................

9

Lamb’s Chapel v. Ctr. Moriches Union Free
Sch. Dist.,
508 U.S. 384 (1993) ................................

8

Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) .................

5

Matal v. Tam,
137 S. Ct. 1744 (2017) ............................ 8, 9, 13
McDonald v. City of Chicago,
561 U.S. 742 (2010) ................................

3

McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) ................................

7

Meyer v. Grant,
486 U.S. 414 (1988) ................................

3

Miller v. Johnson,
515 U.S. 900 (1995) ................................

14

Monitor Patriot Co. v. Roy,
401 U.S. 265 (1971) ................................

6

 iv
TABLE OF AUTHORITIES – cont’d
Page(s)
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ............................ 11, 12
O’Hare Truck Serv., Inc. v. City of
Northlake,
518 U.S. 712 (1996) ................................

9

Rosenberger v. Rectors and Visitors of
Univ. of Va.,
515 U.S. 819 (1995) ................................

8

Rutan v. Republican Party of Ill.,
497 U.S. 62 (1990) .................................. 3, 9, 10
Shaw v. Hunt,
517 U.S. 899 (1996) ................................

14

Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986) ................................

13

Texas v. Johnson,
491 U.S. 397 (1989) ................................

5, 12

Vieth v. Jubelirer,
541 U.S. 267 (2004) ....................... 3, 4, 5, 6, 10
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ................................

2, 13

Wesberry v. Sanders,
376 U.S. 1 (1964) ....................................

13

White v. Weiser,
412 U.S. 783 (1973) ................................

14

Williams v. Rhodes,
393 U.S. 23 (1968) ..................................

10

 v
TABLE OF AUTHORITIES – cont’d
Page(s)
Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189 (2012) ................................

11

Constitutional Provisions and Legislative Materials
4 Annals of Cong. 934 (1794) ........................

8

Cong. Globe, 39th Cong., 1st Sess. (1866) ....

12

Cong. Globe, 41st Cong., 2d Sess. (1869) .....

12

Books, Articles, and Other Authorities
Akhil Reed Amar, The Bill of Rights:
Creation and Reconstruction (1998) .......... 3, 6
2 The Debates in the Several State
Conventions on the Adoption of the
Federal Constitution (Jonathan Elliot ed.,
1836) ........................................................... 4, 7
3 The Debates in the Several State
Conventions on the Adoption of the
Federal Constitution (Jonathan Elliot ed.,
1836) ...........................................................

11

The Federalist No. 10 (Clinton Rossiter rev.
ed., 1999) ...............................................

12

The Federalist No. 78 (Clinton Rossiter rev.
ed., 1999) ............................................... 11, 12
James Madison, Report on the Virginia
Resolutions (1800), in 4 The Debates in
the Several State Conventions on the
Adoption of the Federal Constitution
(Jonathan Elliot ed., 1836) ...................

2, 7, 8

 vi
TABLE OF AUTHORITIES – cont’d
Page(s)
1 The Records of the Federal Convention of
1787 (Max Farrand ed., 1911) ...................

5

 1
INTEREST OF AMICI CURIAE1
Amici curiae are bipartisan current and former
members of Congress who have a strong interest in
redistricting and in the robust enforcement of the
constitutional principles that govern the electoral
process. As current and former members of Congress,
amici appreciate the significance of the fundamental
republican principle that voters choose their
representatives, not the other way around, and they
are familiar with the constitutional provisions that
ensure that this principle is respected. Moreover, as
current and former members of Congress, amici are
particularly familiar with the Elections Clause of the
Constitution, which gives Congress the power to
override state regulation of the time, place, and
manner of federal elections, in order to enable
Congress to prevent state manipulation of electoral
rules. They also understand the important roles the
First and Fourteenth Amendments play in ensuring
democratic self-governance.
Having served in
Congress, amici know well how critical it is that these
constitutional provisions be enforced, and accordingly
they have a strong interest in this case.
A full listing of amici appears in the Appendix.

The parties have consented to the filing of this brief and their
letters of consent have been filed with the Clerk. Under Rule 37.6
of the Rules of this Court, amici state that no counsel for a party
authored this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation
or submission of this brief. No person other than amici or their
counsel made a monetary contribution to its preparation or
submission.
1

 2
SUMMARY OF ARGUMENT
In 2011, the Maryland legislature drew the 6th
Congressional District to dilute the voting strength of
Republican voters, seeking to flip the district from
Republican to Democratic and thereby create a
seventh seat in the Democratic congressional
delegation. To achieve this end, the mapmakers
shuffled hundreds of thousands of citizens either out
of or into the 6th District, using sophisticated political
data to produce an additional Democratic seat. In so
doing, the Maryland mapmakers subordinated voters
on account of their political affiliation. The First
Amendment does not permit this.
Our Constitution’s Framers created a system of
democratic self-governance in which freedom of speech
and association were guaranteed to all.
They
recognized that “the right of electing the members of
the Government constitutes more particularly the
essence of a free and responsible government,” James
Madison, Report on the Virginia Resolutions (1800), in
4 The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 546, 575
(Jonathan Elliot ed., 1836) [hereinafter “Elliot’s
Debates”], and they recognized that the First
Amendment would serve as a critical safeguard of
democratic self-governance, ensuring that “those in
power” may not “derive an undue advantage for
continuing themselves in it; which, by impairing the
right of election, endangers the blessings of the
government founded on it[.]” Id. at 576. Under our
Constitution, “no official, high or petty, can prescribe
what shall be orthodox in politics,” W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 642 (1943), including
by subjecting to disfavored treatment persons whose
“beliefs and associations” do not “conform . . . to some

 3
state-selected orthodoxy,” Rutan v. Republican Party
of Ill., 497 U.S. 62, 75 (1990).
The First Amendment and other fundamental
rights set out in the Bill of Rights originally
constrained only the federal government, but, in the
wake of a bloody Civil War fought over slavery, the
American people “fundamentally altered our country’s
federal system,” McDonald v. City of Chicago, 561 U.S.
742, 754 (2010), adding to the Constitution universal
guarantees of substantive fundamental rights. The
Fourteenth Amendment requires states to obey the
guarantees of freedom of speech and association
secured by the First Amendment. “During the Thirtyeighth and Thirty-ninth Congresses, Republicans
invoked speech, press, petition and assembly rights
over and over—more frequently than any other right
. . . .” Akhil Reed Amar, The Bill of Rights: Creation
and Reconstruction 235 (1998). Thus, as this Court
has long held, states cannot regulate the electoral
process in a manner that runs roughshod over the
rights secured by the First Amendment. See, e.g., Ariz.
Free Enter. Club’s Freedom Club PAC v. Bennett, 564
U.S. 721, 754 (2011); Meyer v. Grant, 486 U.S. 414,
420-21 (1988); Anderson v. Celebrezze, 460 U.S. 780,
786-88, 792-94 (1983). States must respect “the First
Amendment interest of not burdening or penalizing
citizens because of their participation in the electoral
process, their voting history, their association with a
political party, or their expression of political views.”
Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy,
J., concurring).
Partisan gerrymandering is at war with these
fundamental First Amendment principles.
The
drawing of district lines, not to further a legitimate
objective, but simply to entrench one party in power
“subordinate[s] adherents of one political party,” Ariz.

 4
State Legislature v. Ariz. Indep. Redistricting Comm’n,
135 S. Ct. 2652, 2658 (2015), “by reason of their views,”
Vieth, 541 U.S. at 314 (Kennedy, J., concurring), and
burdens disfavored “voters’ representational rights,”
id. It violates “‘the core principle of republican
government,’ namely, ‘that the voters should choose
their representatives, not the other way around.” Ariz.
State Legislature, 135 S. Ct. at 2677 (quoting Mitchell
N. Berman, Managing Gerrymandering, 83 Tex. L.
Rev. 781, 781 (2005)). The First Amendment does not
permit the government to discriminate against voters
because of their political viewpoint or affiliation.
These fundamental First Amendment principles
apply whether Democratic voters (as in Gill v.
Whitford), or Republican voters (as in this case), are
systematically
subordinated
by
a
partisan
gerrymander.
Partisan gerrymandering—whether
the aim is to subordinate Democratic or Republican
voters—is “cancerous, undermining the fundamental
tenets of our form of democracy.” Juris. Statement
App. 37a (Niemeyer, J., dissenting). Efforts by the
government to subordinate persons on account of their
political affiliation cannot be squared with the freedom
of speech and association the Constitution guarantees
to all. The state may not place unequal burdens on a
group of voters’ opportunities to elect their
representatives simply because of the party with
which they associate. This is viewpoint discrimination
pure and simple.
In our constitutional system, when the
government abuses its authority, “the judicial
department is a constitutional check.” 2 Elliot’s
Debates at 196. It is this Court’s constitutional
responsibility to intervene when state governments
use their authority to draw district lines to
subordinate voters because of their political affiliation.

 5
See Texas v. Johnson, 491 U.S. 397, 420 (1989)
(Kennedy, J., concurring) (“[T]he judicial power is
often difficult in its exercise. We cannot here ask
another Branch to share responsibility, as when the
argument is made that a statute is flawed or
incomplete. For we are presented with a clear and
simple statute to be judged against a pure command of
the Constitution. The outcome can be laid at no door
but ours.”).
It is true, as amici well know, that Congress has
the power to limit partisan gerrymandering in
congressional elections.
But this Court cannot
delegate to Congress its constitutional role to “say
what the law is” and enforce the Constitution’s status
as “the fundamental and paramount law of the
nation.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,
177, 177-78 (1803).
That would permit the
fundamental limits imposed by the First and
Fourteenth Amendments to be “passed at pleasure.”
Id. at 178. Undoubtedly, if this Court refuses to
entertain extreme partisan gerrymandering claims
such as this one, “the temptation to use partisan
favoritism in districting in an unconstitutional
manner [would] grow.”
Vieth, 541 U.S. at 312
(Kennedy, J., concurring).
The Framers recognized that “those who have
power in their hands will not give it up while they can
retain it. On the [c]ontrary we know they will always
when they can rather increase it.” 1 The Records of the
Federal Convention of 1787, at 578 (Max Farrand ed.,
1911). It is precisely in cases such as this one that
judicial redress is necessary. Vieth, 541 U.S. at 31112 (Kennedy, J., concurring) (“Allegations of
unconstitutional bias in apportionment are most
serious claims, for we have long believed that ‘the right
to vote’ is one of ‘those political processes ordinarily to

 6
be relied upon to protect minorities.’” (quoting United
States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4
(1938))); id. at 363 (Breyer, J., dissenting) (“[W]e
cannot always count on a severely gerrymandered
legislature itself to find and implement a remedy.”).
Maryland’s gerrymander of Congressional District
6 is incompatible with bedrock First Amendment
principles protecting political affiliation for all and
forbidding
viewpoint
discrimination
by
the
government. The district court erred in refusing to
enjoin it.
ARGUMENT
I. THE FIRST AMENDMENT DOES NOT
PERMIT
THE
GOVERNMENT
TO
SUBORDINATE VOTERS ON ACCOUNT OF
THEIR POLITICAL AFFILIATION.
Maryland’s redrawing of Congressional District 6
runs afoul of bedrock First Amendment principles: it
“subject[s] a group of voters . . . to disfavored treatment
by reason of their views.” Vieth, 541 U.S. at 314
(Kennedy, J., concurring). This cannot be squared
with the protection the First Amendment gives to
political speech and association or the Amendment’s
prohibition on government-sponsored viewpoint
discrimination.
It is settled that the constitutional guarantee of
freedom of speech and association, which protects “the
special structural role of freedom of speech in a
representative democracy,” Amar, supra, at 25, “has
its fullest and most urgent application precisely to the
conduct of campaigns for political office,” Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). This
reflects that “the right of electing members of the
Government constitutes more particularly the essence

 7
of a free and responsible government.” Madison,
Report on the Virginia Resolutions, in 4 Elliot’s
Debates at 575; see Citizens United v. FEC, 558 U.S.
310, 339 (2010) (“Speech is an essential mechanism of
democracy, for it is the means to hold officials
accountable to the people.”); Cal. Democratic Party v.
Jones, 530 U.S. 567, 574 (2000) (“Representative
democracy in any populous unit of governance is
unimaginable without the ability of citizens to band
together in promoting among the electorate candidates
who espouse their political views.”); Elrod v. Burns,
427 U.S. 347, 372 (1976) (“[T]he system of government
the First Amendment was intended to protect” is a
“democratic system whose proper functioning is
indispensably dependent on the unfettered judgment
of each citizen on matters of political concern.”).
In this respect, the First Amendment reflects our
Constitution’s promise of popular sovereignty: “[i]n
our governments, the supreme, absolute, and
uncontrollable power remains in the people.” 2 Elliot’s
Debates at 432 (emphasis in original); see Madison,
Report on the Virginia Resolutions, in 4 Elliot’s
Debates at 569 (“[i]n the United States, . . . [t]he
people, not the government, possess the absolute
sovereignty”). In other words, “[w]hen it comes to
protected speech, the speaker is sovereign.” Ariz. Free
Enter., 564 U.S. at 754; McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 346-47 (1995) (“In a republic
where the people are sovereign, the ability of the
citizenry to make informed choices among candidates
for office is essential, for the identities of those who are
elected will inevitably shape the course that we follow
as a nation.” (quoting Buckley v. Valeo, 424 U.S. 1, 1415 (1976))). As Madison put it, “[i]f we advert to the
nature of Republican Government, we shall find that
the censorial power is in the people over the

 8
Government, and not in the Government over the
people.” 4 Annals of Cong. 934 (1794). The First
Amendment ensures that “those in power” may not
“derive an undue advantage for continuing themselves
in it; which, by impairing the right of election,
endangers the blessings of the government founded on
it[.]” Madison, Report on the Virginia Resolutions, in
4 Elliot’s Debates at 576.
It is also “a fundamental principle of the First
Amendment that the government may not punish or
suppress speech based on disapproval of the ideas or
perspectives the speech conveys.” Matal v. Tam, 137
S. Ct. 1744, 1765 (2017) (Kennedy, J., concurring); see
Rosenberger v. Rectors and Visitors of Univ. of Va., 515
U.S. 819, 829 (1995) (“When the government targets
not subject matter, but particular views taken by
speakers on a subject, the violation of the First
Amendment is all the more blatant. . . . The
government must abstain from regulating speech
when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the
restriction.”); Lamb’s Chapel v. Ctr. Moriches Union
Free Sch. Dist., 508 U.S. 384, 394 (1993) (“[T]he First
Amendment forbids the government to regulate
speech in ways that favor some viewpoints or ideas at
the expense of others.” (quoting City Council v.
Taxpayers for Vincent, 466 U.S. 789, 804 (1984))).
Consistent with these bedrock rules, this Court’s
First Amendment decisions have repeatedly struck
down efforts to subordinate persons belonging to or
associated with a political party disfavored by the
state. “[P]olitical belief and association constitute the
core of those activities protected by the First
Amendment,” Elrod, 427 U.S. at 356, and the “right to
associate with the political party of one’s choice is an
integral part of this basic constitutional freedom,”

 9
Kusper v. Pontikes, 414 U.S. 51, 57 (1973).
Subordinating adherents of a disfavored political party
“based on disapproval of the[ir] ideas or perspectives”
is “the essence of viewpoint discrimination.” Matal,
137 S. Ct. at 1765, 1766 (Kennedy, J., concurring).
Thus, the First Amendment does not permit the
state to subject to disfavored treatment persons whose
“beliefs and associations” do not “conform . . . to some
state-selected orthodoxy,” Rutan, 497 U.S. at 75, in
order to “tip[] the electoral process in favor of the
incumbent party,” Elrod, 427 U.S. at 356; Heffernan v.
City of Paterson, 136 S. Ct. 1412, 1417 (2016) (“With a
few exceptions, the Constitution prohibits a
government employer from discharging or demoting
an employee because the employee supports a
particular political candidate. The basic constitutional
requirement reflects the First Amendment’s hostility
to government action that ‘prescribe[s] what shall be
orthodox in politics.’” (quoting Barnette, 319 U.S. at
642)). “[G]overnment discrimination based on the
viewpoint of one’s speech or one’s political affiliations”
is simply antithetical to the First Amendment. See Bd.
of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 683 (1996);
O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S.
712, 721 (1996) (refusing to permit government to
“coerce support” simply because of “dislike of the
individual’s political association”); Bd. of Educ. v. Pico,
457 U.S. 853, 870-71 (1982) (“If a Democratic school
board, motivated by party affiliation, ordered the
removal of all books written by or in favor of
Republicans, few would doubt that the order violated
the constitutional rights of the students denied access
to those books.”); Appellants Br. at 30-31.
The First Amendment analysis that applies in this
case and others involving state regulation of the
electoral process “concentrates on whether the

 10
legislation burdens the representational rights of the
complaining party’s voters for reasons of ideology,
beliefs, or political association.” Vieth, 541 U.S. at 315
(Kennedy, J., concurring). This Court’s cases insist on
a “pragmatic or functional assessment that accords
some latitude to the States,” id.; Burdick v. Takushi,
504 U.S. 428, 434 (1992), while ensuring “the right of
individuals to associate for the advancement of
political beliefs, and the right of qualified voters,
regardless of their political persuasion, to cast their
votes effectively,” Williams v. Rhodes, 393 U.S. 23, 30
(1968). Under these established First Amendment
principles, “it is especially difficult for the State to
justify a restriction that limits political participation
by an identifiable political group whose members
share a particular viewpoint, associational preference,
or economic status.” Anderson, 460 U.S. at 793. This
rule reflects the fact that “[c]ompetition in ideas and
governmental policies is at the core of our electoral
process and of the First Amendment freedoms.”
Williams, 393 U.S. at 32.
Because “voters can assert their preferences only
through candidates or parties or both,” Anderson, 460
U.S. at 787, efforts by a state to subordinate adherents
of a disfavored party and severely limit the
effectiveness of their votes cannot be squared with the
fundamental limits enshrined in the First
Amendment.
The First Amendment denies the
government the authority to entrench one party in
power. Cf. Rutan, 497 U.S. at 64 (“To the victor belong
only those spoils that may be constitutionally
obtained.”). The Maryland legislature’s redrawing of
District 6 cannot be squared with the First
Amendment’s protection of core electoral speech and
association and its prohibition on viewpoint
discrimination.

 11
II. THE
CONSTITUTION
REQUIRES
REDRESS BY THE COURTS WHEN STATES
SUBORDINATE
ADHERENTS
OF
A
POLITICAL PARTY BASED ON VIEWPOINT
IN VIOLATION OF THE FIRST AND
FOURTEENTH AMENDMENTS.
Judicial relief is warranted here. “[W]hen the
rights of persons are violated, ‘the Constitution
requires redress by the courts’ . . . . The Nation’s courts
are open to injured individuals who come to them to
vindicate their own direct, personal stake in our basic
charter.” Obergefell v. Hodges, 135 S. Ct. 2584, 2605
(2015) (quoting Schuette v. Coal. to Defend Affirmative
Action, 134 S. Ct. 1623, 1637 (2014)). Although this
case, like many others, is undeniably sensitive and
demands careful judgment, “this is what courts do.”
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189,
201 (2012).
Both at the Founding and following the Civil War,
our
Constitution’s
Framers
insisted
that
constitutional “limitations . . . can be preserved in
practice no other way than through the medium of
courts of justice, whose duty it must be to declare all
acts contrary to the manifest tenor of the Constitution
void. Without this, all the reservations of particular
rights or privileges would amount to nothing.” The
Federalist No. 78, at 434 (Alexander Hamilton)
(Clinton Rossiter rev. ed., 1999); 3 Elliot’s Debates at
554 (“To what quarter will you look for protection from
an infringement on the Constitution, if you will not
give the power to the judiciary? There is no other body
that can afford such a protection.”). The Framers
created the Article III judiciary to “guard the
Constitution and the rights of individuals” from
“designing men” who have a “tendency . . . to occasion
dangerous innovations in the government, and serious

 12
oppressions of the minor party in the community.” The
Federalist No. 78, supra, at 437; The Federalist No. 10,
supra, at 49 (James Madison) (discussing the need to
ensure that “the majority” would be “unable to concert
and carry into effect schemes of oppression”).
Like their counterparts at the Founding, the
Framers of the Fourteenth Amendment recognized
that judicial review was essential to ensure that the
Amendment’s constitutional protections “cannot be
wrested from any class of citizens, or from the citizens
of any State by mere legislation.” Cong. Globe, 39th
Cong., 1st Sess. 1095 (1866). The Framers understood
that the “object of a Constitution is not only to confer
power upon the majority, but to restrict the power of
the majority and to protect the rights of the minority.”
Id. “[T]he greatest safeguard of liberty and of private
rights,” they recognized, is to be found in the
“fundamental law that secures those private rights,
administered by an independent and fearless
judiciary.” Cong. Globe, 41st Cong., 2d Sess. 94
(1869).
As the Constitution’s text and history reflect, “[t]he
idea of the Constitution ‘was to withdraw certain
subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and
officials and to establish them as legal principles to be
applied by the courts.” Obergefell, 135 S. Ct. at 260506 (quoting Barnette, 319 U.S. at 638). This Court
“cannot . . . ask another branch to share
responsibility.” Johnson, 491 U.S. at 420 (Kennedy,
J., concurring).
This Court’s role is to enforce
constitutional limits, not leave the job to another
branch. “Abdication of responsibility is not part of the
constitutional design.” Clinton v. City of New York,
524 U.S. 417, 452 (1998) (Kennedy, J., concurring).

 13
Thus, it is of no moment that the Elections Clause
gives Congress the power to prescribe a remedy for
partisan
gerrymandering
in
congressional
redistricting. It is this Court’s constitutional role—
not Congress’s—to ensure that states respect the
“fundamental principle of the First Amendment that
the government may not punish or suppress speech
based on disapproval of the ideas or perspectives the
speech conveys.” Matal, 137 S. Ct. at 1765 (Kennedy,
J., concurring).
This Court has repeatedly refused to “immunize
state congressional apportionment laws which debase
a citizen’s right to vote from the power of courts to
protect the constitutional rights of individuals from
legislative destruction,” Wesberry v. Sanders, 376 U.S.
1, 6 (1964), simply because of the possibility that
Congress could act under the Elections Clause. The
authority granted by the Elections Clause “does not
extinguish the State’s responsibility to observe the
limits established by the First Amendment rights of
the State’s citizens.” Tashjian v. Republican Party of
Conn., 479 U.S. 208, 217 (1986). This reflects the fact
that—whether or not Congress acts—the Fourteenth
Amendment requires states to respect First
Amendment freedoms and obliges courts to intervene
to check lawless action at the state level. Barnette, 319
U.S. at 637 (“The Fourteenth Amendment, as now
applied to the States, protects the citizen against the
State itself and all of its creatures. . . . These have, of
course, important, delicate, and highly discretionary
functions, but none that they may not perform within
the limits of the Bill of Rights.”).
Consistent with its role of ensuring that states
respect the guarantees contained in the Fourteenth
Amendment, this Court has repeatedly struck down
congressional
districting
lines
that
were

 14
malapportioned in violation of the one-person, onevote principle, see Kirkpatrick v. Preisler, 394 U.S. 526
(1969); White v. Weiser, 412 U.S. 783 (1973); Karcher
v. Daggett, 462 U.S. 725 (1983), or that were drawn
predominantly on the basis of race, see Miller v.
Johnson, 515 U.S. 900 (1995); Shaw v. Hunt, 517 U.S.
899 (1996); Cooper v. Harris, 137 S. Ct. 1455 (2017). If
this Court had to stay its hand because of the
possibility that Congress might legislate under the
Elections Clause, each of these cases would have come
out the other way. Thus, the possibility that Congress
might act provides no basis for immunizing
Maryland’s partisan gerrymander from constitutional
review by this Court.
CONCLUSION
For the foregoing reasons, the judgment of the
district court should be reversed.
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAVID H. GANS
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amici Curiae
January 29, 2018

* Counsel of Record

 1A
APPENDIX:
LIST OF AMICI
Blumenauer, Earl
Representative of Oregon
Campbell, Tom
Former Representative of California
Carr, M. Robert
Former Representative of Michigan
Clarke, Yvette D.
Representative of New York
Cooper, Jim
Representative of Tennessee
Davis, Tom
Former Representative of Virginia
Deutch, Ted
Representative of Florida
Dingell, Debbie
Representative of Michigan
Gonzalez, Charlie
Former Representative of Texas
Harris, Andy
Representative of Maryland
Johnson, Jr., Henry C. “Hank”
Representative of Georgia

 2A
LIST OF AMICI – cont’d
Loebsack, Dave
Representative of Iowa
Lofgren, Zoe
Representative of California
Lowenthal, Alan
Representative of California
McCollum, Betty
Representative of Minnesota
Meeks, Gregory W.
Representative of New York
Morella, Constance
Former Representative of Maryland
Moulton, Seth
Representative of Massachusetts
Porter, John
Former Representative of Illinois
Schneider, Claudine
Former Representative of Rhode Island
Shays, Chris
Former Representative of Connecticut
Skaggs, David
Former Representative of Colorado
Smith, Peter
Former Representative of Vermont

 3A
LIST OF AMICI – cont’d
Suozzi, Thomas R.
Representative of New York
Watson Coleman, Bonnie
Representative of New Jersey