No. 18-726

LINDA H. LAMONE, State Administrator of Elections,
and DAVID J. MCMANUS, JR., Chairman of the
Maryland State Board of Elections,
Appellants,
v.
O. JOHN BENISEK, EDMUND CUEMAN,
JEREMIAH DEWOLF, CHARLES W. EYLER, JR.,
KAT O’CONNOR, ALONNIE L. ROPP,
and SHARON STRINE,
Appellees.
On Appeal from the United States
District Court for the District of Maryland
MOTION TO AFFIRM
EUGENE R. FIDELL
Yale Law School
Supreme Court Clinic
127 Wall Street
New Haven, CT 06511
(203) 432-4992

EUGENE VOLOKH
UCLA School of Law
385 Charles E. Young
Drive East
Los Angeles, CA 90095
(310) 206-3926

MICHAEL B. KIMBERLY
Counsel of Record
PAUL W. HUGHES
STEPHEN M. MEDLOCK
E. BRANTLEY WEBB
MICAH D. STEIN
COLLEEN M. CAMPBELL
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3127
mkimberly@
mayerbrown.com

Counsel for Appellees

 QUESTION PRESENTED

State officials responsible for Maryland’s 2011
congressional redistricting targeted plaintiffs and other
like-minded voters for disfavored treatment because of
their past support for Republican candidates for public
office. These officials’ aims were achieved: the weight of
Republicans’ votes in Maryland’s Sixth Congressional
District was severely diluted and Republicans’ associational activities were significantly disrupted as a
result of the gerrymander.
After more than four years of litigation and two
previous appeals before this Court, all three judges
below agreed that the 2011 gerrymander of Maryland’s
Sixth Congressional District violated the First Amendment’s prohibition on official retaliation for political
expression.
The questions presented are:
1. Does partisan gerrymandering violate the First
Amendment’s prohibition on official retaliation for
political expression?
2. Is a First Amendment retaliation challenge to a
partisan gerrymander justiciable in federal court?
3. Did the district court properly grant a final judgment and permanent injunctive relief to plaintiffs in
light of the undisputed facts of record?

 ii
TABLE OF CONTENTS

Table of Authorities ...................................................... iii
Introduction .................................................................... 1
Statement ........................................................................ 3
A. Factual background............................................ 3
B. Procedural background ...................................... 7
1. The initial pro se proceedings and
first appeal .................................................... 7
2. The denial of the motion to dismiss ............. 8
3. The denial of preliminary relief and
second appeal ................................................ 9
4. The unanimous entry of final
judgment for plaintiffs ................................ 10
Argument ...................................................................... 15
I. Partisan Gerrymandering Violates The First
Amendment ............................................................ 15
A. Plaintiffs’ First Amendment retaliation
claim is justiciable ............................................ 15
B. The State’s rejoinders are misguided .............. 23
II. The District Court Properly Granted
Judgment To Plaintiffs .......................................... 27
A. The decision below rests entirely on
undisputed facts ............................................... 27
B. The district court correctly rejected the
State’s delay argument .................................... 31
Conclusion ..................................................................... 33

 iii
TABLE OF AUTHORITIES
Cases

Ambat v. City & Cty. of S.F.,
757 F.3d 1017 (9th Cir. 2014) .............................. 29
Anderson v. Celebrezze,
460 U.S. 780 (1983) ...................................... passim
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................. 25
Baker v. Carr,
369 U.S. 186 (1962) .............................................. 17
Bartlett v. Strickland,
556 U.S. 1 (2009) .................................................. 20
Benisek v. Lamone,
138 S. Ct. 1942 (2018) (per curiam) .......... 9, 10, 32
Benisek v. Mack,
11 F. Supp. 3d 516 (D. Md. 2014) .......................... 7
Benisek v. Mack,
584 F. App’x 140 (4th Cir. 2014)............................ 7
Board of Cty. Comm’rs v. Umbehr,
518 U.S. 668 (1996) .............................................. 15
Branti v. Finkel,
445 U.S. 507 (1980) .............................................. 23
Campbell v. Shinseki,
546 F. App’x 874 (11th Cir. 2013)........................ 29
Cook v. Gralike,
531 U.S. 510 (2001) ........................................ 22, 23
Cooper v. Harris,
137 S. Ct. 1455 (2017) .................................. passim
Crawford v. Marion Cty. Election Bd.,
553 U.S. 181 (2008) .............................................. 27
Davis v. Bandemer,
478 U.S. 109 (1986) ........................................ 17, 18

 iv
Cases—continued

Doali-Miller v. SuperValu, Inc.,
855 F. Supp. 2d 510 (D. Md. 2012) ...................... 30
EEOC v. Maricopa Cty. Cmty. Coll.,
736 F.2d 510 (9th Cir. 1984) ................................ 28
Elrod v. Burns,
427 U.S. 347 (1976) ............................ 16, 17, 22, 23
Erickson v. Pardus,
551 U.S. 89 (2007) (per curiam) .......................... 32
Gaffney v. Cummings,
412 U.S. 735 (1973) ........................................ 23, 24
Gratz v. Bollinger,
539 U.S. 244 (2003) .............................................. 33
Grutter v. Bollinger,
539 U.S. 306 (2003) .............................................. 33
Hunt v. Cromartie,
526 U.S. 541 (1999) ........................................ 27, 28
Johnson v. De Grandy,
512 U.S. 997 (1994) .............................................. 20
Karcher v. Daggett,
462 U.S. 725 (1983) .............................................. 26
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) ........................................ 16, 26
Malin v. XL Capital Ltd.,
499 F. Supp. 2d 117 (D. Conn. 2007)................... 30
Mt. Healthy City Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) .............................................. 18
O’Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712 (1996) .............................................. 15
Ortiz v. Jordan,
562 U.S. 180 (2011) .............................................. 15

 v
Cases—continued

Perez v. Abbott,
267 F. Supp. 3d 750 (W.D. Tex. 2017) ................. 32
Rutan v. Republican Party,
497 U.S. 62 (1990) ................................................ 16
Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208 (1974) .............................................. 17
Shapiro v. McManus,
136 S. Ct. 450 (2015) .......................................... 7, 8
Skolnick v. Illinois State Electoral Bd.,
307 F. Supp. 691 (N.D. Ill. 1969) ......................... 32
Thornburg v. Gingles,
478 U.S. 30 (1986) ........................................ passim
United Paperworkers v. Int’l Paper Co.,
64 F.3d 28 (1st Cir. 1995) .................................... 28
United States v. Brown,
490 F.2d 758 (D.C. Cir. 1973) .............................. 30
United States v. L.A. Tucker Truck Lines,
344 U.S. 33 (1952) ................................................ 24
United States v. Lopez,
514 U.S. 549 (1995) .............................................. 27
Vieth v. Jubelirer,
541 U.S. 267 (2004) ...................................... passim
Voinovich v. Quilter,
507 U.S. 146 (1993) .............................................. 19
Walz v. Tax Comm’n,
397 U.S. 664 (1970) .............................................. 27
Webster v. Fall,
266 U.S. 507 (1925) .............................................. 24
Wesberry v. Sanders,
376 U.S. 1 (1964) .................................................. 16

 vi
Cases—continued

White v. Daniel,
909 F.2d 99 (4th Cir. 1990) .................................. 32
Williams v. Long,
585 F. Supp. 2d 679 (D. Md. 2008) ...................... 30
Williams v. Rhodes,
393 U.S. 23 (1968) ................................................ 16
Zivotofsky v. Clinton,
566 U.S. 189 (2012) .............................................. 17
Statutes, rules, and constitutional provisions

28 U.S.C. 2284 ............................................................. 8
Fed. R. App. P. 10(a) ................................................. 31
Fed. R. Civ. P. 56(c)(2)............................................... 30
U.S. Const. art. I, § 2, cl. 1 .......................................... 1
Miscellaneous authorities

Alexander M. Bickel,
The Least Dangerous Branch (1962) ..................... 1
Alexander M. Bickel, The Passive Virtues,
75 Harv. L. Rev. 40 (1961) ..................................... 1
John Fritze, Bartlett Struggles with
Campaign Disclosure,
Balt. Sun (June 24, 2012) .................................... 31
Justin Levitt, Intent Is Enough: Invidious
Partisanship in Redistricting,
59 Wm. & Mary L. Rev. 1993 (2018) ................... 18

 INTRODUCTION

The Charter of our government establishes a representative democracy. See U.S. Const. art. I, § 2, cl. 1.
“Representative democracies * * * function by electing
certain [people] for certain periods of time, then passing judgment periodically on their conduct of public
office.” Alexander M. Bickel, The Least Dangerous
Branch 17 (1962) (Yale 1986 ed.). “It is a matter of
laying on of hands, followed in time by a process of
holding to account—all through the exercise of the
franchise.” Ibid.
The practice of partisan gerrymandering—aided in
modern times by sophisticated software and the most
detailed troves of data imaginable—is at war with this
system of government. It aims to insulate those in
power—those whom the public has taken into their
trust—from being held to account. Its purpose is to
reduce the franchise to a charade—a meaningless
exercise, the outcome of which is preordained by
computer scientists and political consultants turned
cartographers.
If this Court does not take the opportunity, once
and for all, to condemn political gerrymandering as the
First Amendment violation that it is, it will be giving a
green light to lawmakers across the country to engage
in gerrymandering in 2020 like never before. It will
make the 2010 cycle look like child’s play.
The State’s position is that the Court is powerless
to do anything about it—that the Supreme Court of the
United States must stand idly by as American democracy is undermined. That is wrong; without at all calling into question the passive virtues (Alexander M.
Bickel, The Passive Virtues, 75 Harv. L. Rev. 40
(1961)), the Court is not, has not been, and cannot be a
mere spectator in the public life of the Nation.

 2
The framework the district court applied to the
uncontested facts of this case is justiciable. Courts are
frequently called upon to evaluate the kinds of burdens
at issue here, including vote dilution (e.g., Cooper v.
Harris, 137 S. Ct. 1455 (2017)) and associational harms
(e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983)).
These are not the kinds of burdens that courts lack the
tools to evaluate. And the First Amendment theory
here leaves room for mapmakers to pursue all kinds of
political objectives in redistricting, ensuring general
consistency with this Court’s prior cases.
The State’s hodgepodge of rejoinders falls flat. The
First Amendment retaliation doctrine, applied to partisan gerrymandering, does not outlaw pursuit of
proportionally representative delegations. Nor does it
assume the constitutionality of the immediately prior
district; the only question is whether the State deliberately prevented voters from forming a majority in a
reasonably configured district on account of their party
affiliation or voting history; it makes no difference
what the prior district looked like. And the doctrine
likewise gives clear guidance to legislators: Lawmakers
must not deliberately target voters for disfavored treatment on the basis of their past political expression.
That should not be a controversial rule.
The State’s efforts to hide behind procedure also
fail. The grant of summary judgment below turned
entirely on undisputed facts; indeed, the State itself
repeatedly disavowed the need for a trial. And none of
the State’s evidentiary objections holds up. Courts
have also often ordered new maps for the final election
before the next census; the district court did not abuse
its discretion to do so here.
The Court should summarily affirm. If it instead
orders full briefing and argument, and it does so in

 3
Rucho v. Common Cause (No. 18-422) as well, it should
set the two cases for hearing on the same date.
STATEMENT
A. Factual background

The undisputed facts of record (JS App. 5a) establish the following.
1. For the great majority of the 50 years leading up
to Maryland’s 2011 redistricting, the State’s congressional delegation had comprised five or six Democrats
and two or three Republicans. But Maryland’s Democratic leaders considered it their duty in 2011 to crack
the Republican majority in one of Maryland’s two
Republican districts at the time, ensuring a “7-1” delegation from then on.
“Governor O’Malley took responsibility for creating
the 2011 congressional redistricting plan.” JS App. 12a.
“He testified explicitly that he wanted to use the redistricting process to change the overall composition of
Maryland’s congressional delegation to 7 Democrats
and 1 Republican by flipping either the First District
on the Eastern Shore of Maryland or the Sixth District
in western Maryland.” Ibid. “After brief consideration,
Governor O’Malley rejected the notion of flipping the
First District because the resulting district would have
to jump across the Chesapeake Bay.” Id. at 13a. “Consequently, ‘a decision was made to go for the Sixth.’”
Ibid. (emphasis omitted) (quoting Governor O’Malley’s
deposition testimony).
“Governor O’Malley appointed the Governor’s
Redistricting Advisory Committee as the public face of
his effort, directing it to hold public hearings and
recommend a redistricting plan.” JS App. 13a. “But at
the same time,” he asked U.S. House Minority Whip
Steny Hoyer, a self-described “serial gerrymanderer,”
to “come up with a map” on behalf of the sitting con-

 4
gressional delegation. Id. at 13a-14a. “Hoyer and other
members of the delegation retained NCEC Services”
and instructed the firm to “draw[] a map that maximized ‘incumbent protection’ for Democrats and that
changed the congressional delegation from 6 Democrats and 2 Republicans to 7 Democrats and 1 Republican.” Id. at 14a. See ibid. (Senate President Mike
Miller testifying that the map “primarily was drawn by
the congressional people”).
In undertaking his assignment, NCEC’s president,
Eric Hawkins, used NCEC’s “proprietary metric * * *
called the Democratic Performance Index (‘DPI’), which
measures how a generic Democratic candidate would
likely perform in a particular district.” JS App. 15a.
“Hawkins testified that he used the DPI * * * to draw a
map that would maximize ‘incumbent protection’ for
the Democrats currently representing Maryland districts in Congress and that would ‘chang[e] the makeup of Maryland’s U.S. House delegation from six
Democrats and two Republicans to seven Democrats
and one Republican.’” Id. at 16a.
“With respect to this 7-1 goal,” the court went on,
“Hawkins’ efforts focused on redrawing the Sixth
District’s lines to increase its federal DPI.” JS App.
16a. Whereas the district’s DPI had been 37.4% under
the previous map (indicating a near-certain Republican
win), “Hawkins prepared several different maps under
which the Sixth District would have had at least a 51%
federal DPI.” Ibid. “In preparing these draft maps,
Hawkins considered neither ‘any measure of compactness,’ nor whether ‘there was a community of interest
related to the I-270 corridor.’” Ibid. “Rather, ‘[t]he
intent was to see if there was a way to get another
Democratic district in the state.’” Ibid. And while alternative maps were proposed by third parties during the

 5
same timeframe, “they resulted in a far lower federal
DPI for the Sixth District and were not used.” Ibid.
“[A] group of staffers to the State’s most senior
Democratic leaders” was assigned ultimate responsibility for finalizing the draft map. JS App. 17a. These
staffers’ data files tellingly had NCEC’s proprietary
DPI metric built into them, and email traffic shows
that Hawkins “assisted at least some of these staffers
as they continued working on the congressional map”
through its completion. Ibid.
The final map released by the Advisory Committee
“had a federal DPI of 53% in the Sixth District, which
was greeted as ‘good news’ by the man who was widely
expected to be the Democratic nominee to represent
the newly redrawn District in the upcoming 2012
election.” JS App. 20a. Following a closed caucus
meeting in which the map was introduced to the Democrats in Maryland’s General Assembly, “Delegate Curt
Anderson told a reporter, ‘It reminded me of a weather
woman standing in front of the map saying, “Here
comes a cold front,” and in this case the cold front is
going to be hitting Roscoe Bartlett pretty hard.’” Id. at
22a (quoting joint stipulations). Other lawmakers
likewise acknowledged their goal of ensuring that a
Democrat would win the Sixth District moving forward. Id. at 23a-24a.
2. “[T]he Democratic officials responsible for the
plan redrew the Sixth District’s boundaries far more
dramatically than was necessary” to comply with the
one-person-one-vote standard, which would have required “remov[ing just] 10,186 residents from the District.” JS App. 7a. On the whole, the redrawing shifted
several hundred thousand residents; “[t]he registered
voters removed from the former Sixth District were
predominately Republican, while those added were

 6
predominately Democratic.” Id. at 10a. “In total, the
reshuffling of the Sixth District’s voters resulted in a
net reduction of roughly 66,000 registered Republicans
and a net increase of some 24,000 registered Democrats, for a swing of about 90,000 voters.” Id. at 11a.
And “for the first time since 1840” (id. at 73a), it split
Frederick County, which had been in the Sixth District
for the prior 140 years (id. at 20a). As a result of this
upheaval, those living in rural western Maryland—
bordering West Virginia and southwestern Pennsylvania—are now represented by a congressman elected by
wealthy suburban Democrats over 150 miles away, in
the suburbs of Washington, D.C.
Most of the Republican voters removed from the
Sixth District were reassigned to the Eighth District.
JS App. 11a. “[E]ven though the number of registered
Republicans in the Eighth District [therefore] rose significantly after the transfer of Republicans from the
Sixth District, registered Democrats still outnumbered
registered Republicans by nearly 2 to 1.” Id. at 12a.
The results of the gerrymander have been “precisely as intended and predicted.” JS App. 24a. Following the 2011 redistricting, the Sixth District swung
from a “Solid Republican” ranking by the Cook Political
Report to a “Likely Democratic” ranking. Id. at 25a. An
academic study of the ranking’s accuracy showed that,
as a consequence of the redistricting, the chances that
a Democrat would win the district skyrocketed from
0.3% in 2010 to 94.0% in 2012. Ibid. The DPI similarly
“confirmed that the Democrats held a clear electoral
advantage in the District as a result of its redistricting.” Id. at 25a-26a.
“The record demonstrates further that, in addition
to the reduced opportunity to elect a candidate of their
choice, the plaintiffs and other active members of

 7
Maryland’s Republican Party faced new difficulties in
their organizational efforts as a result of the redistricting.” JS App. 26a. Plaintiff Sharon Strine testified,
for example, that the gerrymander made campaigning
in the district more difficult, including by depressing
voter interest and enthusiasm. Ibid. Plaintiff Alonnie
Ropp similarly testified that the gerrymander’s fracturing of Frederick County made voter engagement
difficult and confusing. Id. at 26a-27a. Plaintiff Ned
Cueman explained that his connection with historic
portions of the district had been severed; it was a “chop
job,” and he had “absolutely no connection with what is
in this [new] district.” Id. at 27a.
“Other record evidence corroborate[d]” this testimony, “including evidence showing that Sixth District
registered Republican voters’ participation declined in
primary elections in midterm years.” JS App. 28a.
“Similarly, the record shows a decline in fundraising by
the Republican Central Committees of the three counties that remained entirely within the Sixth District
after the 2011 redistricting.” Ibid.
B. Procedural background
1.

The initial pro se proceedings and first
appeal

Three initial plaintiffs filed suit, challenging the
2011 gerrymander as (among other things) a violation
of their First Amendment rights. Dkt. 11, ¶¶ 2, 23.
A single-judge district court dismissed the case
without convening a three-judge court. Benisek v.
Mack, 11 F. Supp. 3d 516 (D. Md. 2014). The Fourth
Circuit affirmed. Benisek v. Mack, 584 F. App’x 140
(4th Cir. 2014).
This Court granted review and reversed. Shapiro v.
McManus, 136 S. Ct. 450 (2015). Of relevance here, the
Court held that plaintiffs’ First Amendment challenge

 8
to Maryland’s 2011 gerrymander should have been
referred to a three-judge district court pursuant to 28
U.S.C. 2284 because it is “based on a legal theory put
forward by a Justice of this Court” and “uncontradicted” by any of the Court’s cases. 136 S. Ct. at 456.
2.

The denial of the motion to dismiss

On remand, plaintiffs “promptly filed a second
amended complaint in February 2016,” about “one
week after [the] three-judge court was empaneled.” JS
App. 29a. “The amended complaint added six additional plaintiffs and refined the [First Amendment] theory
underlying their constitutional challenge.” Ibid.
The district court denied the State’s motion to dismiss. JS App. 172a-225a.
“[W]hen a State draws the boundaries of its electoral districts so as to dilute the votes of certain of its
citizens,” the majority explained, “the practice imposes
a burden on those citizens’ right to ‘have an equally
effective voice in the election’ of a legislator to represent them.” JS App. 195a. “The practice of purposefully diluting the weight of certain citizens’ votes to
make it more difficult for them to achieve electoral
success because of the political views they have expressed through their voting histories and party
affiliations thus infringes this representational right.”
Id. at 196a.
Observing that “there is no redistricting exception”
to the First Amendment’s protections, the majority
concluded that a plaintiff bringing a First Amendment
retaliation challenge to a partisan gerrymander “must
allege that those responsible for the map redrew the
lines of his district with the specific intent to impose a
burden on him and similarly situated citizens because
of how they voted or the political party with which they
were affiliated.” JS App. 198a-199a (emphasis omit-

 9
ted). They must also prove a concrete harm and causation. Id. at 199a-202a.
Finding that this inquiry was judicially manageable, the court “recognize[d] the justiciability of a claim
challenging redistricting under the First Amendment
and Article I, § 2.” JS App. 203a.
Chief Judge Bredar dissented. JS App. 206a-225a.
Although he concluded that harm based on vote dilution is nonjusticiable (id. at 210a, 225a), he recognized
that “[t]here may yet come a day when federal courts,
finally armed with a reliable standard, are equipped to
adjudicate political gerrymandering claims.” Id. at
224a.
3.

The denial of preliminary relief and
second appeal

Following lengthy discovery, plaintiffs moved for a
preliminary injunction and, in the alternative, for summary judgment. JS App. 30a. The State filed an opposition to the motion for a preliminary injunction and
alternatively cross-moved for summary judgment. Ibid.
Both parties agreed that there were no genuine factual
disputes necessitating a trial. See Dkt. 177-1, at 25
(plaintiffs’ brief); Dkt. 186-1, at 25-46 (State’s brief).
The district court denied a preliminary injunction
and stayed the proceedings. JS App. 82a-119a. Judge
Niemeyer dissented. Id. at 119a-171a.
This Court affirmed. See Benisek v. Lamone, 138 S.
Ct. 1942 (2018) (per curiam). Without reaching the
merits of plaintiffs’ First Amendment claim, the Court
concluded that “a due regard for the public interest in
orderly elections supported the District Court’s discretionary decision to deny a preliminary injunction”
given the proximity of the 2018 elections. Id. at 19441945. “On top of this time constraint,” the Court explained, “was the legal uncertainty surrounding any

 10
potential remedy for the plaintiffs’ asserted injury.” Id.
at 1945. “In these particular circumstances,” the Court
concluded, “the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of
discretion.” Ibid.
4.

The unanimous entry of final judgment
for plaintiffs

a. On remand a second time, the parties filed a

joint status report in which the State reaffirmed that
“this matter is appropriate for resolution on summary
judgment,” without need for a trial. Dkt. 209, at 3.
To that end, the parties filed supplemental summary judgment briefs. We reiterated in our brief that
plaintiffs had suffered vote dilution according to the
traditional Gingles preconditions. Dkt. 210, at 5-15. We
also showed that Republican voters’ associational
activities had been significantly chilled and disrupted
by the gerrymander, resulting in lower voter turnout
and depressed fundraising. Id. at 15-18.1
To add further support for the second point, we
attached voting data and campaign finance reports
available on the State’s own website, together with an
affidavit that performed basic addition and division.
The State incorrectly calls this second point a “new claim.” JS
11. In fact, plaintiffs alleged in the second amended complaint
that the gerrymander “chilled and manipulated political participation” in the Sixth District, including by making citizens less likely
to vote and “less likely to participate actively in campaigning.”
Dkt. 40-1, ¶¶ 112-119. In our opening summary judgment brief,
we pointed to evidence that political participation had been
“chilled and disrupted” by the gerrymander. Dkt. 177-1, at 18-19.
And in our principal brief before this Court in the second appeal,
we explained (at 43) that successful gerrymanders depress associational activities by “reduc[ing] * * * political engagement”
and “inhibit[ing] fundraising and recruitment of volunteers.”
1

 11
The district court unanimously denied the State’s
motion to strike this material. Dkt. 219.
b. On November 7, 2018—the day after the 2018
congressional elections—the three-judge court unanimously granted final judgment to plaintiffs and enjoined the State from using the 2011 redistricting map
in any future elections. JS App. 1a-77a.
The district court held first that plaintiffs have
standing. JS App. 43a-47a. “The plaintiffs in this case,
unlike the plaintiffs in Gill [v. Whitford, 138 S. Ct.
1916 (2018)], have brought and pursued the kind of
single-district challenge that Gill recognized as providing * * * standing.” Id. at 47a.
“Turning to the merits,” the court ruled that the
“undisputed facts” in the record “establish[] each
element of [plaintiffs’] First Amendment claim that
their representational rights have been impermissibly
burdened by reason of their political views and voting
history.” JS App. 48a.
First, with respect to the mapmakers’ intent,
the process described in the record admits of
no doubt. Maryland Democratic officials
worked to establish Maryland’s congressional
district boundaries in 2011 with a narrow focus
on diluting the votes of Republicans in the
Sixth Congressional District in an attempt to
ensure the election of an additional Democratic
representative in the State’s [eight-member]
congressional delegation.
Ibid. (boldface added). Indeed, “the record is replete
with direct evidence of this precise purpose.” Id. at 49a.
The court rejected the State’s argument that an
intent to help Democrats is not the same as an intent
to harm Republicans. “If the government uses partisan
registration and voting data purposefully to draw a

 12
district that disfavors one party, it cannot escape
liability by recharacterizing its actions as intended to
favor the other party.” JS App. 50a. There is no legal
basis to “distinguish between these intents” in a twoparty, winner-take-all election. Ibid.
The court also rejected the State’s argument that
the First Amendment requires proof that lawmakers
“target[ed] specific voters based on their individual
party affiliation or voting history.” JS App. 51a. “The
fact that the State intentionally moved Republican
voters out of the Sixth District en masse, based on precinct-level data, and did not examine each individual
voter’s history does not make its action permissible
under the First Amendment.” Ibid.
Second, with respect to the injury element, the
plaintiffs have shown that the redrawn Sixth
District did, in fact, meaningfully burden their
representational rights.
JS App. 52a (boldface added). On this point, the court
stressed that “plaintiffs must have experienced a
‘demonstrable and concrete adverse effect’ on their
right to have ‘an equally effective voice in the election’
of a representative, which they can establish by showing that they have been placed at a concrete electoral
disadvantage.” Ibid. And “[t]he plaintiffs here have
made that showing” with evidence of vote dilution confirmed by both parties’ experts. Id. at 53a.
Drawing on Justice Kagan’s concurring opinion in
Gill, the court held further that “plaintiffs can prove
injury in the form of associational harm, as ‘distinct
from vote dilution,’ by showing that the State has
‘burdened the ability of like-minded people across the
State to affiliate in a political party and carry out that
organization’s activities and objects.’” JS App. 58a
(quoting 138 S. Ct. at 1938-1939).

 13
Here too, the court held, “the plaintiffs have shown
that the 2011 redistricting plan did indeed burden
their associational rights,” in several ways. JS App.
61a. For example, “voter engagement in support of the
Republican Party dropped significantly” following the
gerrymander. Id. at 62a. Testimony thus “revealed a
lack of enthusiasm, indifference to voting, a sense of
disenfranchisement, a sense of disconnection, and confusion after the 2011 redistricting by voters,” making it
more difficult for plaintiffs and other Republicans “to
‘band together in promoting among the electorate
candidates who espouse their political views.’” Ibid. In
addition, there was undisputed evidence “that fundraising by the Republican Central Committees of the
counties that remained entirely within the Sixth District after the 2011 redistricting dropped off after the
redistricting in both midterm and presidential elections.” Id. at 63a.
The “undisputed evidence” thus “amply demonstrate[d] that the plaintiffs’ associational rights were
burdened.” JS App. 63a.
Finally, as to causation, the plaintiffs have
established that, without the State’s retaliatory intent, the Sixth District’s boundaries
would not have been drawn to dilute the
electoral power of Republican voters nearly to
the same extent.
JS App. 54a (boldface added). And it was the same
“reshuffling that caused the associational harms
noted.” Id. at 64a.
Having held that the undisputed record evidence
established a First Amendment violation, the court addressed the standard for entering a permanent injunction. On this score, the court emphasized that plaintiffs’ request for permanent injunctive relief dates to

 14
the original complaint, filed in 2013. JS App. 66a.
“While it is true that the case has dragged on” in the
interim, the court found that the “protraction cannot be
attributed to the plaintiffs, but to process.” Ibid. The
court thus held that both plaintiffs and defendants had
been diligent in their litigation of the case. Ibid.
Concluding that the “balance of the equities” and
the “public interest” both favor a permanent injunction
(JS App. 64a-67a), the court enjoined the State from
using the 2011 redistricting map in future elections
and ordered the preparation of a new map.
c. Chief Judge Bredar concurred in the judgment.
JS App. 67a-76a. Although he remained skeptical of
our vote dilution theory because it turns in part on
“evidence of electoral outcomes as proof that the gerrymander succeeded” (id. at 70a), Chief Judge Bredar
“embrac[ed]” the “associational rights theory” (id. at
71a). “Regardless of whether the State succeeded in its
obvious intent to increase the likelihood that a Democrat would win the Sixth District,” he reasoned, “the
State certainly caused harm.” Id. at 72a. In this way,
“[t]he State retaliated against voters for those associations.” Ibid.
d. Judge Russell concurred separately, joining both
Judge Niemeyer’s lead opinion and Chief Judge
Bredar’s concurrence. JS App. 76a-77a.
e. The State moved for a discretionary stay of the
injunction. Dkt. 226. Plaintiffs consented on the conditions that (1) the parties brief jurisdiction before this
Court on a sufficiently expedited schedule to ensure
adequate time for this Court either to summarily
affirm or to note probable jurisdiction and rule on the
merits this Term and (2) the State stipulate to the fact
that there will be sufficient time to draw a new map

 15
before the 2020 elections following a decision from this
Court in June 2019. See Dkt. 227.
ARGUMENT

After more than four years of litigation and nine
published decisions (including two from this Court) the
district court entered a unanimous final judgment in
favor of plaintiffs, enjoining enforcement of Maryland’s
unlawful 2011 political gerrymander of its Sixth
Congressional District.
The standards determined and applied by the
district court, grounded in well-settled First Amendment doctrine, are readily justiciable. And plaintiffs’
entitlement to relief under those standards is beyond
cavil. The Court accordingly should affirm.
I.

PARTISAN GERRYMANDERING VIOLATES THE
FIRST AMENDMENT
A. Plaintiffs’ First Amendment retaliation claim
is justiciable

1. The First Amendment prohibits a State from
subjecting individuals to disfavored treatment on the
basis of their speech or politics, whether it be in the
context of hiring or firing employees, granting or
terminating contracts, or punishing or rewarding
prison inmates. See O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712 (1996) (public employment);
Board of Cty. Comm’rs v. Umbehr, 518 U.S. 668 (1996)
(public contracts); Ortiz v. Jordan, 562 U.S. 180 (2011)
(prisoner retaliation).
The same logic describes the constitutional violation inherent in partisan gerrymanders. “[P]olitical belief and association constitute the core of those activities protected by the First Amendment.” Rutan v.
Republican Party, 497 U.S. 62, 69 (1990) (quoting
Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality)).
Indeed, “[n]o right is more precious in a free country

 16
than that of having a voice in the election of those who
make the laws under which, as good citizens, we must
live. Other rights, even the most basic, are illusory if
the right to vote is undermined.” Williams v. Rhodes,
393 U.S. 23, 31 (1968) (quoting Wesberry v. Sanders,
376 U.S. 1, 17 (1964)).
Because there is this “right of qualified voters, regardless of their political persuasion, to cast their votes
effectively” (Anderson v. Celebrezze, 460 U.S. 780, 787
(1983)), it follows that “general First Amendment principles” prohibit a State from subjecting citizens to “disfavored treatment” because of their “voting history” or
“association with a political party.” Vieth v. Jubelirer,
541 U.S. 267, 314 (2004) (Kennedy, J., concurring in
the judgment). That is, citizens enjoy a First Amendment right not to be “burden[ed] or penaliz[ed]” for
their “voting history,” “association with a political
party,” or “expression of political views.” Ibid. Indeed,
“[i]f a court were to find that a State did impose
burdens and restrictions on groups or persons by
reason of their views, there would likely be a First
Amendment violation.” Id. at 315. Accord League of
United Latin Am. Citizens v. Perry, 548 U.S. 399, 461
(2006) (LULAC) (Stevens, J., concurring in part and
dissenting in part).
The State has never expressly disagreed with these
basic principles. It has never asserted a right to use
redistricting to burden voters by reason of their support for the opposition party, nor has it disagreed that
partisan gerrymandering, like political patronage, “is
inimical to the process which undergirds our system of
government and is ‘at war with the deeper traditions of
democracy embodied in the First Amendment.’” Elrod,
427 U.S. at 357 (plurality). The State instead has
taken the position that the First Amendment retal-

 17
iation framework is nonjusticiable when applied in the
redistricting context. That is mistaken.
2.a. The starting point for federal litigation is “the
concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by
the ‘case or controversy’ requirement of [Article] III.”
Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 215 (1974). Among those limitations is the
“narrow” political-question doctrine, which arises in
two principal circumstances: those in which there is “a
textually demonstrable constitutional commitment of
the issue to a coordinate political department” and
those in which there is “a lack of judicially discoverable
and manageable standards for resolving [the controversy].” Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012).
“The second [circumstance] is at issue here”; it reflects the maxim that “law pronounced by the courts
must be principled, rational, and based upon reasoned
distinctions.” Vieth, 541 U.S. at 278 (plurality). In law,
unlike politics, ad hoc decision-making will not do;
“judicial action must be governed by standard, by rule.”
Ibid. The “lack of judicially discoverable standards”
indicates the commitment of the issue to the “political
departments.” Baker v. Carr, 369 U.S. 186, 214 (1962).
That is not to say that all cases with political consequences involve nonjusticiable political questions;
the doctrine “is one of ‘political questions,’ not one of
‘political cases.’” See Davis v. Bandemer, 478 U.S. 109,
122 (1986) (emphasis added) (quoting Baker, 369 U.S.
at 217). Thus, “courts cannot reject as ‘no law suit’ a
bona fide controversy as to whether some action * * *
exceeds constitutional authority” simply because the
action is “denominated ‘political.’” Ibid.
b. Application of the First Amendment retaliation
doctrine to cases like this one is manifestly justiciable.

 18
The doctrine provides a timeworn framework that asks
objective questions answerable with traditional evidence, by reference to ordinary legal standards. There
is, in other words, a discernible and judicially enforceable right at issue here, and there are “principled, wellaccepted rules” for enforcing it. Vieth, 541 U.S. at 308,
311 (Kennedy, J.).
Applied in this context, the First Amendment
retaliation doctrine comprises three elements: (1) Did
the State consider citizens’ protected First Amendment
conduct in deciding where to draw district lines, and
did it do so with an intent to burden those citizens by
reason of their political beliefs? (2) If so, did the redistricting map, in fact, dilute the votes of the targeted
citizens or disrupt their political association? And (3) if
so, is there a constitutionally acceptable explanation
for the map’s ill effects, independent of the intent to
discriminate on the basis of political belief?
No one seriously disputes that the first and third
elements are justiciable. Courts regularly adjudicate
the question of legislative intent. See Justin Levitt,
Intent Is Enough: Invidious Partisanship in Redistricting, 59 Wm. & Mary L. Rev. 1993 (2018) (citing examples). Courts also routinely address whether there
are legitimate, alternative explanations for otherwise
unconstitutional burdens. See generally Mt. Healthy
City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
The only question, therefore, is whether the second
element of the First Amendment framework—the
requirement that plaintiffs show that the redistricting
plan burdened them in a practical way—is justiciable
in federal court. Given the practical and functional
nature of the burdens imposed, it plainly is.
c. We begin with the obvious: Vote dilution is a
justiciable harm. See Gill, 138 S. Ct. at 1930-1931

 19
(majority); Cooper v. Harris, 137 S. Ct. 1455, 1470
(2017). It is caused “either ‘by the dispersal of [minority voters] into districts in which they constitute an
ineffective minority’” or by “concentrat[ing minority
voters] into districts where they constitute an excessive
majority.’” Voinovich v. Quilter, 507 U.S. 146, 154
(1993) (quoting Thornburg v. Gingles, 478 U.S. 30, 46
n.11 (1986)).
The most developed body of law on vote dilution is
in the context of racial vote dilution under Section 2 of
the Voting Rights Act. To establish that vote dilution
has “impede[d] the ability of minority voters to elect
representatives of their choice” (Gingles, 478 U.S. at
48), a Section 2 plaintiff must satisfy the so-called
Gingles preconditions:
First, the targeted voters must be sufficiently
numerous and “geographically compact to constitute a
majority in some reasonably configured legislative
district.” Cooper, 137 S. Ct. at 1470 (quotation marks
omitted).
Second, “the minority group must be politically
cohesive.” Ibid. (quotation marks omitted).
Third, the majority “must vote sufficiently as a
bloc to usually defeat the minority’s preferred candidate.” Ibid. (alterations incorporated; quotation
marks omitted).
Each of these three elements is directed at the
questions of burden and causation. If the targeted
group is not “able to demonstrate that it is sufficiently
large and geographically compact to constitute a majority in a [reasonably drawn] single-member district” in
the area, then the drawing of the district’s lines “cannot be responsible for minority voters’ inability to elect
its candidates.” Gingles, 478 U.S. at 50.

 20
Similarly, if the targeted group cannot “show that
it is politically cohesive,” then “it cannot be said that
the [redistricting] thwarts [its] interests.” Id. at 51.
And if the majority does not “vote[] sufficiently as a
bloc to enable it * * * usually to defeat the minority’s
preferred candidate,” then cracking the minority group
will not “impede[] its ability to elect its chosen representatives.” Ibid.
When these three conditions are satisfied, however,
it follows that there has been a denial of “equal electoral opportunity” as a result of the lines that the
legislature drew. Johnson v. De Grandy, 512 U.S. 997,
1012 (1994).2
We demonstrated below that the Gingles preconditions are satisfied in this case. E.g., Dkt. 210, at
6-8; Dkt. 177-19, at 3-4 (expert report of Dr. Michael
McDonald). Indeed, satisfaction of the preconditions is
the premise of the swings in DPI and PVI, which also
showed that plaintiffs and other Sixth District Republicans were deprived of “an equally effective voice in
the election of a representative.” JS App. 52a-53a.
Separate and apart from the Gingles preconditions,
a plaintiff can also establish vote dilution by “proTo be sure, Johnson held that the Gingles preconditions by
themselves are not independently “sufficient” to demonstrate a
Section 2 vote dilution claim. 512 U.S. at 1011. The Court stressed
that the focus of the inquiry must be, instead, on the deprivation
of “equal electoral opportunity” in light of all “relevant facts.” Id.
at 1012. But Johnson was expressly framed as an interpretation of
Section 2 of the VRA. And Bartlett v. Strickland, 556 U.S. 1
(2009), emphasized that this Court’s opinions interpreting “the
text of [Section] 2” do “not apply to cases in which there is intentional discrimination.” Id. at 19-20. We thus rely on the Gingles
preconditions only as a commonsense guide for identifying burden
and causation in partisan gerrymandering cases involving intentional discrimination.
2

 21
duc[ing] an alternative map (or set of alternative
maps)—comparably consistent with traditional districting principles—under which her vote would carry
more weight.” Gill, 138 S. Ct. at 1936 (Kagan, J., concurring). We did that, too. See Dkt. 177-1, at 21.
d. The principal objective of any partisan gerrymander is to dilute the votes of the opposition party.
“But partisan gerrymanders inflict other kinds of constitutional harm as well,” including “infringement of
the[] First Amendment right of association.” Gill, 138
S. Ct. at 1934, 1938 (Kagan, J., concurring). For example, “[m]embers of the ‘disfavored party’ * * * deprived of their natural political strength by a partisan
gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support
from independents, and recruiting candidates to run
for office.” Ibid. “By placing a state party [and its
supporters] at an enduring electoral disadvantage, the
gerrymander weakens its capacity to perform all its
functions.” Ibid.
As the district court held, “the kinds of injury resulting from such associational violations [like this] are
readily discernable and significant: ‘Volunteers are
more difficult to recruit and retain, media publicity
and campaign contributions are more difficult to secure, and voters are less interested in the campaign.’”
JS App. 57a (quoting Anderson, 460 U.S. at 792).
These are traditional First Amendment burdens,
readily visible to the judicial eye. In Anderson, the
Court confronted an early candidacy filing deadline
that applied only to independent candidates. Invalidating that discriminatory regulation under the First
Amendment, the Court explained that “the right of
qualified voters, regardless of their political persuasion, to cast their votes effectively” can be “heavily

 22
burdened” by voting “restrictions” and “regulation[s].”
460 U.S. at 787-788. Courts faced with First Amendment challenges to such regulations must evaluate the
burdens imposed using “an analytical process that
parallels [their] work in ordinary litigation.” Id. at 789.
This requires consideration of “the character and magnitude of the asserted injury” measured against “the
precise interests put forward by the State as justifications for the burden imposed.” Ibid.
The Court ultimately invalidated the early filing
deadline in Anderson because—as a matter of commonsense observation—it selectively “place[d] a particular
burden on an identifiable segment of Ohio’s independent-minded voters.” 460 U.S. at 792. The deadline
applied “unequally” among the political parties and
therefore “burden[ed] the availability of political opportunity” based on the “political preferences” of voters—
and was therefore unlawful. Id. at 793-794. The Court
reached similar conclusions in Cook v. Gralike, 531
U.S. 510 (2001), concerning ballot notations, and Elrod,
concerning patronage practices.
Application of this framework here is readily manageable. As the district court held, the “undisputed
evidence amply demonstrates that the plaintiffs’ associational rights were burdened.” JS App. 63a. “Members of the Republican Party in the Sixth District,
deprived of their natural political strength by [the]
partisan gerrymander, were burdened in fundraising,
attracting volunteers, campaigning, and generating
interest in voting in an atmosphere of general confusion and apathy.” Ibid. There is nothing nonjusticiable
about that conclusion or the analysis underlying it.
The point, at bottom, is a simple one: If a State
may not intentionally “burden[] the availability of
political opportunity” using discriminatory filing dead-

 23
lines (Anderson, 460 U.S. at 793); “dictate electoral outcomes” using ballot notations (Gralike, 531 U.S. at
523); or “deny a benefit to a person because of his
constitutionally protected speech or associations” using
patronage practices (Elrod, 427 U.S. at 359), neither
may it intentionally do those things by manipulating
district lines. And if the burdens are capable of rational
judicial assessment in those other contexts, they are
equally so in this one.
B. The State’s rejoinders are misguided

The State offers unpersuasive rejoinders.
1. The State insists first (JS 16-18) that the
decision below will outlaw the use of political data in
pursuit of proportionally representative delegations, in
violation of the holding of Gaffney v. Cummings, 412
U.S. 735 (1973). Not so.
Although it is not a question presented here, a
State’s good faith effort “fairly to allocate political
power to the parties in accordance with their voting
strength” (Gaffney, 412 U.S. at 754) would almost
surely pass strict scrutiny. In Branti v. Finkel, 445
U.S. 507 (1980), for example, the Court concluded that
“political affiliation” may be “a legitimate factor to be
considered” when “essential” to a compelling government interest; the Court offered the apt example of
achieving political equipoise in a slate of election
judges. Id. at 518. See also Elrod, 427 U.S. at 367-368
(plurality) (a government official’s discrimination
based on political views is permissible to serve the
“overriding interest” of hiring political loyalists in
important “policymaking positions”). In light of these
precedents, a narrowly-drawn effort to undo past
gerrymandering and ensure fair representation is not
likely to violate the First Amendment.

 24
Regardless, Gaffney did not involve a First Amendment challenge. That matters, because an issue that is
“neither brought to the attention of the court nor ruled
upon” is “not to be considered as having been so
decided as to constitute [a] precedent[]” on the issue.
Webster v. Fall, 266 U.S. 507, 511 (1925). Accord, e.g.,
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.
33, 38 (1952). The same goes for every other gerrymandering case this Court has addressed under different constitutional provisions. See Cooper, 137 S. Ct.
at 1488 (Alito, J., concurring in the judgment in part
and dissenting in part) (observing that prior cases not
involving First Amendment challenges have suggested
that States “may engage in constitutional political
gerrymandering”).
2. The State says (JS 18) that the decision below
permits no consideration of party affiliation. A simple
read of the applicable framework shows otherwise: “the
First Amendment analysis” asks “not whether political
classifications were used,” without more; rather, it asks
“whether political classifications were used to burden a
group’s representational rights.” Vieth, 541 U.S. at 315
(Kennedy, J.). Thus, mapmakers may “still use data
reflecting prior voting patterns to advance legitimate
districting considerations, including the maintenance
of ‘communities of interest.’” JS App. 200a.
Along similar lines, the State mistakenly suggests
that because every redrawing of district lines risks
some voter confusion, the standard applied below has
no limit. JS 19, 24. But proof of associational harms,
without more, would not make for a claim under the
framework adopted below; rather, the harms must be a
specifically intended penalty for citizens’ politics.
The State offers the head-scratching rejoinder (JS
19) that the intent element of the test “contains no

 25
means of distinguishing between permissible and
impermissible political considerations.” But the difference is self-evident between political considerations
that are in service of a specific intent to burden voters
for their past voting history and those that are not. See
Vieth, 541 U.S. at 315 (Kennedy, J.). The State later
says (JS 25-27) that gerrymandering defendants “will
face difficulty” disproving intent. That gets matters
backward: Proving intent in a case like this is “inordinately difficult.” Gingles, 478 U.S. at 43-45. Indeed,
many claims of unlawful intent are certain to be
screened at the pleading stage. Ashcroft v. Iqbal, 556
U.S. 662, 680-681 (2009).
3. The State wrongly asserts (JS 20-22) that “[t]he
intent and effects elements adopted by the three-judge
court can be evaluated only with reference to the prior
map,” in effect “[e]nshrining pre-existing maps as the
constitutional touchstone for future redistricting.”
Again, voters targeted by a gerrymander must
show only that they are sufficiently numerous and
“geographically compact to constitute a majority in [a]
reasonably configured legislative district” in the area.
Cooper, 137 S. Ct. at 1470. Thus, the benchmark for
measuring vote dilution is not the immediately prior
district; it is, instead, the full range of hypothetical
districts that could have been drawn in the area—just
as in any other vote dilution case. See ibid. To be sure,
we know in this case that Republican voters are sufficiently numerous and compact because, between 1991
and 2011, they constituted a majority of a reasonably
drawn district in western Maryland. But that is merely
evidence to satisfy the standard, not a statement of the
standard itself.
This observation clarifies that a deliberate continuation of a prior partisan gerrymander would also vio-

 26
late the First Amendment, all other factors satisfied.
The State is therefore wrong when it asserts (JS 21)
that “voters whose districts did not change * * * would
be barred” from challenging a redistricting map. We
made this point below (Dkt. 210, at 6-7 & n.3), but the
State has declined even to acknowledge, much less
rebut, our argument.
4. In its only contention addressing justiciability as
distinct from the merits, the State asserts (JS 24) that
“a [numerical] standard for measuring burden is indispensable.” In the State’s view (JS 23-24), it is acceptable for legislators to intentionally inflict some degree
of harm on voters for their voting histories, as long as
it doesn’t go too far—the problem is that the decision
below does not offer any basis for determining “how
much is too much.” That is wrong on multiple levels.
To begin, it is wrong to say that some degree of intentionally inflicted harm in response to the expression
of political views is constitutionally acceptable. The
distinction that the First Amendment retaliation doctrine draws is one of kind, not degree: It forbids States
from deliberately diluting citizens’ votes and disrupting their political associations because lawmakers
disapprove of those citizens’ political views. That
prohibition does not depend on the “size” of the burden.
But it does leave a wide range of valid political considerations that are permissible in redistricting,
including avoiding contests between incumbents
(Karcher v. Daggett, 462 U.S. 725, 740 (1983)), respecting municipal boundaries and communities of interest
(LULAC, 548 U.S. at 441), and allocating specific
institutions to particular districts to preserve affinity
relationships (Dkt. 104, ¶ 50).
Even if that were not so, the First Amendment
does not demand a numerical standard for measuring

 27
burden. “[A]s the branch whose distinctive duty it is to
declare ‘what the law is,’ [this Court is] often called
upon to resolve questions of constitutional law not
susceptible to the mechanical application of bright and
clear lines.” United States v. Lopez, 514 U.S. 549, 579
(1995) (Kennedy, J., concurring). “[I]t is an essential
part of adjudication to draw distinctions, including fine
ones, in the process of interpreting the Constitution”
one case at a time. Walz v. Tax Comm’n, 397 U.S. 664,
679 (1970). Thus, the Court has never before required
a universal “‘litmus test’ that would neatly separate
valid from invalid” burdens as a precondition to exercising Article III jurisdiction in election-law cases.
Crawford v. Marion Cty. Election Bd., 553 U.S. 181,
190 (2008) (plurality). It should not start here.
II. THE DISTRICT COURT PROPERLY GRANTED
JUDGMENT TO PLAINTIFFS
A. The decision below rests entirely on undisputed facts

After repeatedly telling the district court that the
parties’ disputes are strictly legal and that no trial was
necessary, the State now faults the district court for
not ordering a trial after all. The State thus likens this
case to Hunt v. Cromartie, 526 U.S. 541 (1999), asserting (JS 28) that the court improperly “resolved disputed facts pertaining to multiple elements of plaintiffs’ claims.” That gives new meaning to the phrase
“wide of the mark.”
a. As an initial matter, Hunt is readily distinguishable. There, the district court granted summary judgment “before either party had conducted discovery and
without an evidentiary hearing.” 526 U.S. at 545.
Although the parties attached “supporting materials”
to their summary judgment papers, the plaintiffs
“offered only circumstantial evidence in support of

 28
their claim” and notably lacked “direct evidence of
intent.” Id. at 545, 547.
Here, the opposite is true: “The parties have conducted and completed extensive discovery, and neither
the plaintiffs nor the State has requested any more.”
JS App. 3a. After all that, “the record is replete with
direct evidence” of intent (id. at 49a), including numerous facts that were jointly stipulated by the parties (id.
at 50a; Dkt. 104) and otherwise admitted by the State
(e.g., Dkt. 191-15, at 16). In light of the undisputed
nature of the relevant facts, both parties took the
position that no trial was warranted. E.g., Dkt. 177-1,
at 25; Dkt. 186-1, at 25-46.3
b. Beyond that, there were no disputes of material
fact warranting a trial. The State asserts (JS 29-30)
that there is a dispute between (on the one hand)
Against this background, it is debatable whether the district
court’s decision is better understood as a summary judgment or a
judgment following submission on the papers.
“In a nonjury case” like this, “when the basic dispute between
the parties,” if any, “concerns only the factual inferences that one
might draw from the more basic facts to which the parties have
agreed, and where neither party has sought to introduce additional factual evidence or asked to present witnesses, the parties are,
in effect, submitting their dispute to the court as a ‘case stated.’”
United Paperworkers v. Int’l Paper Co., 64 F.3d 28, 31 (1st Cir.
1995). Accord, e.g., EEOC v. Maricopa Cty. Cmty. Coll., 736 F.2d
510, 513 (9th Cir. 1984). In that event, the district court is “freed
from the usual constraints that attend the adjudication of summary judgment motions, and may engage in a certain amount of
factfinding, including the drawing of inferences.” United Paperworkers, 64 F.3d at 31 (quotation marks omitted).
If the decision below is better understood as a judgment following submission on the papers, clear error (rather than de novo)
review applies. See United Paperworkers, 64 F.3d at 31; Maricopa
Cty. Cmty. Coll., 736 F.2d at 513. Cf. Cooper, 137 S. Ct. at 14641465 (giving the district court “significant deference on appeal,”
including clear-error review of factual findings).
3

 29
evidence establishing that some of the plaintiffs were
politically engaged and (on the other hand) evidence
establishing that plaintiffs’ associations were disrupted. That evidence is factually consistent. Even if it
created a dispute, the dispute would be immaterial:
The point is that plaintiffs’ ability to band together
with others has been inhibited by the gerrymander’s
associational interruptions, not that they personally
became disengaged in politics. See JS App. 60a-61a.
The State is also wrong to say (JS 33) that the
district court “refused to accept as true defendants’
showing that changes in the Sixth District’s boundaries
were driven by legitimate legislative decisions.” In fact,
the district court expressly assumed the truth of the
State’s assertion that “other causes” were at work. JS
App. 55a. It found, however, that there was no evidence that any of the supposed alternative justifications was capable, alone or together, of “explain[ing]
the dramatic exchange of populations between the
Sixth and Eighth Districts.” Ibid. Rightly so.
The State’s evidentiary objections (JS 30-33) are
likewise unavailing. For starters, the admissibility of
evidence is a legal matter—an objection to the entry of
evidence does not mean that the evidence is “disputed”
in the Rule 56 sense. Nor is there anything unusual or
problematic about the district court’s disposition of the
State’s objections; a court may “implicitly dispose[]” of
evidentiary objections at the Rule 56 stage “by granting the summary judgment motion and relying on the
evidence * * * objected to.” Campbell v. Shinseki, 546
F. App’x 874, 879 (11th Cir. 2013). Accord, e.g., Ambat
v. City & Cty. of S.F., 757 F.3d 1017, 1032 (9th Cir.
2014).
Nor do the State’s evidentiary objections hold up on
their merits. As an initial matter, the question is only

 30
whether the cited evidence is capable of being “presented in a form that would be admissible in evidence”
at trial, regardless whether it is presently so. Fed. R.
Civ. P. 56(c)(2). All of the evidence met that standard.
Neither Strine’s nor Ropp’s testimony was hearsay
because neither was offered to establish the truth of
the matters asserted. Strine, for example, testified that
“every time we were out [campaigning],” voters told her
“it’s not worth voting anymore.” JS App. 26a. The
testimony was not offered as proof that it literally
wasn’t worth voting anymore. It was offered instead as
evidence of voter sentiment, reflecting depressed voter
interest and engagement. Cf. United States v. Brown,
490 F.2d 758, 762-763 (D.C. Cir. 1973) (“[T]he statement ‘X is no good’ circumstantially indicates the
declarant’s state of mind toward X.”). The same is true
with respect to Ropp’s testimony concerning voter
confusion. JS App. 26a-27a.
The State’s objection (JS 31-33) to the campaign
finance reports is bizarre, and the court below correctly
rejected it (Dkt. 219). First, the reports—which are
made available on the defendants’ own website—are
“unsworn statements declared to be true under penalty
of perjury,” and they are thus admissible as “declarations” for purposes of Rule 56. Williams v. Long, 585 F.
Supp. 2d 679, 685 (D. Md. 2008). Second, the reports
are self-authenticating records of regularly conducted
activity. E.g., Doali-Miller v. SuperValu, Inc., 855 F.
Supp. 2d 510, 518-519 (D. Md. 2012). Third, they are
subject to judicial notice. E.g., Malin v. XL Capital
Ltd., 499 F. Supp. 2d 117, 133 (D. Conn. 2007). Bottom
line: The reports obviously could have been admitted

 31
into evidence at trial. And the State did not offer any
evidence bringing their contents into dispute. 4
Finally, the State is wrong (JS 34) that the causation element of plaintiffs’ claim required a trial. The
preliminary injunction decision erroneously held that
plaintiffs had to prove that the gerrymander alone
dictated the outcomes of the congressional elections in
2012, 2014, and 2016 and that it would “continue to
control the electoral outcomes in [the] district.” JS App.
100a, 105a-113a. The opinion granting summary judgment corrected that error, holding that our burden was
to show only that the plaintiffs “have been placed at a
concrete electoral disadvantage.” Id. at 52a. Thus, the
difference in the two decisions is legal.
B. The district court correctly rejected the
State’s delay argument

The State’s delay argument can be dispatched
quickly. The district court—which had a front-row seat
to all aspects of the litigation for the past four-plus
years—found that there were no “dilatory efforts” by
either side, attributing the dragging on of the litigation
to “process.” JS App. 66a. That conclusion was not an
abuse of discretion.
This Court’s affirmance of the denial of preliminary
relief does not change matters. The Court based its
decision on the late filing of the preliminary injunction
motion and the proximity of the 2018 election. Benisek,
The State introduced evidence bearing on plaintiffs’ claim of
associational burdens (see JS 31), but it did not include evidence
bearing on fundraising specifically. It now attempts to introduce
such evidence for the first time on appeal. See JS 8 & n.3; JS 33 &
n.10. That evidence—which has been reported to be inaccurate
(e.g., John Fritze, Bartlett Struggles with Campaign Disclosure,
Balt. Sun (June 24, 2012), perma.cc/2Z64-4NWJ?type=image)—is
not properly before the Court. See Fed. R. App. P. 10(a).
4

 32
138 S. Ct. at 1943-1945. But as the district court explained (JS App. 66a), permanent injunctive relief “was
requested when the litigation was first commenced in
2013.”5 And as the State admits (JS 38-39), “there
remain[s] time to implement a new plan for the 2020
election.” See also Dkt. 227. A denial of relief for a
“serious constitutional violation” simply because the
litigation took years to conclude would “demean[]”
plaintiffs’ First Amendment injuries. JS App. 65a.
Nor is it an answer to say “[just] bear it because it
will be over soon.” JS App. 65a. The State’s citations to
case law do not suggest otherwise. In White v. Daniel,
909 F.2d 99 (4th Cir. 1990), “there [were] no elections
scheduled before * * * [the next] census,” meaning that
the case was moot. Id. at 104. Here, the 2020 election
has yet to take place. And in Skolnick v. Illinois State
Electoral Board, 307 F. Supp. 691 (N.D. Ill. 1969), the
passage of time made correcting the one-person-onevote claim in that case practically impossible. Id. at
694-695. The same cannot be said here. Every other
case cited at pages 36 to 37 of the jurisdictional statement is similarly distinguishable.
Courts regularly enter injunctive relief late in a
redistricting cycle when the constitutional violation
can be corrected. E.g., Perez v. Abbott, 267 F. Supp. 3d
750 (W.D. Tex. 2017) (granting injunction in August
2017), affirmed in part and reversed in part on unrelated grounds, 138 S. Ct. 2305 (2018). It was not an
abuse of discretion for the district court to do so here.
***
The initial pro se complaint is “to be liberally construed.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
5

 33
For the foregoing reasons, the Court should summarily affirm. If it notes or postpones probable jurisdiction in this case and Rucho v. Common Cause (No.
18-422), it should consider scheduling oral argument
for the same date. See Benisek v. Lamone, No. 17-333,
3/28/2018 Hr’g Tr. 26:8-27:7 (Justice Breyer proposing
“reargument” in multiple partisan gerrymandering
cases at once so that the Court could “see them all
together”). Doing so would ensure a broader spectrum
of legal arguments and a more substantial combined
factual record upon which to consider the issues
presented in the appeals.
CONCLUSION

The judgment below should be affirmed.
Respectfully submitted.
EUGENE R. FIDELL
Yale Law School
Supreme Court Clinic
127 Wall Street
New Haven, CT 06511
(203) 432-4992

EUGENE VOLOKH
UCLA School of Law
385 Charles E. Young
Drive East
Los Angeles, CA 90095
(310) 206-3926

MICHAEL B. KIMBERLY
Counsel of Record
PAUL W. HUGHES
STEPHEN M. MEDLOCK
E. BRANTLEY WEBB
MICAH D. STEIN
COLLEEN M. CAMPBELL
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3127
mkimberly@
mayerbrown.com

Counsel for Appellees
DECEMBER 2018