Amicus Brief of Civil Rights Organizations (NAACP LDF, et al.) in Whitford v. Gill
47 Pages Posted: 20 Dec 2017 Last revised: 5 Jan 2018
Date Written: September 1, 2017
Courts have long noted that “elected officials engaged in the single-minded pursuit of incumbency can run roughshod over the rights of protected minorities.” The same is true with respect to the pursuit of partisan advantage. Both Democratic and Republican legislatures have used the power of the state to enact extreme partisan gerrymanders, retaining or enhancing their own grip on power and subordinating voters who support an opposing party. Many of these gerrymanders were constructed at least in part at the expense of minority voting rights.
Amici write in the hope that we may assist this Court in considering the ramifications of the doctrine and practice of partisan gerrymandering on minority voters. In particular, amici explain how a properly structured partisan gerrymandering claim that requires a showing of intent to subordinate voters because of their party affiliation assists in establishing an administrable standard that guards against invidious partisanship in the redistricting process without undermining critical protections for minority voters.
Recognizing the constitutional invalidity of the invidious discrimination demonstrated in this case—subordination of voters within a jurisdiction as a whole because of their party affiliation—does not jeopardize the interests of minority voters. Indeed, because “political gerrymandering tends to strengthen the grip of incumbents at the expense of emerging minority communities,” a cause of action addressing egregious partisan gerrymandering may in some cases protect minority voters from improper manipulation by elected officials. In certain contexts, a properly structured partisan gerrymandering claim could lessen the need for courts to undergo the difficulty of disentangling race and party, which this Court and others have recognized can be impermissible proxies for one another. And finally, while causes of action in which race and racial discrimination remain a central doctrinal concern are essential in addressing some of the deepest and most pernicious forms of discrimination, we have also observed that actors whose primary concerns are partisan will occasionally attempt to misuse race-based voting claims for their own ends, twisting facts or law in the process. A properly structured cause of action for partisan gerrymandering can help courts better channel claims down the appropriate litigation paths, avoiding unwelcome doctrinal distortion and providing full redress for invidious discrimination of all forms.
This brief was coauthored with Sherrilyn A. Ifill, Janai S. Nelson, Samuel Spital, and Leah C. Aden, of the NAACP Legal Defense & Education Fund, Inc., and Laura W. Brill of Kendall Brill & Kelly LLP.
Keywords: partisan gerrymandering, gerrymandering, redistricting, invidious discrimination, race, partisanship, First Amendment, Fourteenth Amendment, discriminatory intent
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