vs. § CIVIL ACTION NO. 2:03-CV-354
RICK PERRY, ET AL. § Consolidated


Applicant submits this brief late because it was necessary to provide litigants and intervenors an opportunity by the January 14, 2005, deadline to properly address the concerns of the United States Supreme Court in its remand and direction that the case be reconsidered in the light of Vieth v. Jubilirer. None of them has adequately done so. That remand was an invitation to present the court standards by which it could decide when congressional district maps are drawn in a way that is partisan to a degree that the constitutional issues are justiciable. Applicant presents such standards that the corrupt practice of gerrymandering can be ended after more than 200 years, and partisan influence that is undue or excessive not just be reduced, but removed altogether.

Jon Roland, in propria persona
7793 Burnet Road #37
Austin, Texas 78757
Telephone: (512)374-9585
January 20, 2005


vs. § CIVIL ACTION NO. 2:03-CV-354
RICK PERRY, ET AL. § Consolidated


Leave to file brief as amicus curiae is hereby granted to Jon Roland in this case.

_____________________________________________ __________________________
Judge presiding Date




vs. § CIVIL ACTION NO. 2:03-CV-354
RICK PERRY, ET AL. § Consolidated


Jon Roland, in propria persona
7793 Burnet Road #37
Austin, Texas 78757
Telephone: (512)374-9585


This case has emerged as a contest between two groups of litigant-intervenors, one supporting the Map of 2003, gerrymandered in favor of the Republican Party, and the other the undoing of the Map of 2003 and a return to what we may call the Map of 2001, which is gerrymandered in favor of the Democratic Party. Now the election of 2004 has already been conducted using the Map of 2003, and members of Congress elected from districts of that map are or will be seated in the 2005 session of Congress.

Attorneys for the litigant-intervenors opposing the Map of 2003 make cogent arguments against the Map of 2003 in their filings, which will not be repeated here. The problem is that those same arguments apply equally well to the Map of 2001.

In the brief of the Jackson plaintiffs and Democratic Party intervenors the duty of this court and all parties is defined well by the characterization of the position of the U.S. Supreme Court on remand by a "majority of the Supreme Court Justices have now held that partisan-gerrymandering claims remain justiciable, all members of the Court have now agreed that severe partisan gerrymanders violate the Equal Protection Clause, ..." but that the plurality "despaired of finding a workable standard", citing Vieth v. Jubelirer, 124 S. Ct. at 1785.

Litigant-intervenors have been arguing this case as though they are asserting a property right in the district maps, but there can be no property right in district maps. Their standing, if any, in this case must be based on the ancient principle of having the right to privately prosecute a public right, and that may require us to re-examine the precedent set in Frothingham v. Mellon, 262 U.S. 447 (1923). (1)

Based on the briefs amicus has seen, none of the litigant-intervenors has properly or adequately addressed the concerns of the United States Supreme Court in its remand and direction that the case be reconsidered in the light of Vieth v. Jubilirer. That remand was an invitation to present the court standards by which it could decide when congressional district maps are drawn in a way that is partisan to a degree that the constitutional issues are justiciable. The failure of litigant-intervenors to thus respond borders on contempt, and presents this court with the unenviable choice between two alternatives, both of which are unconstitutional. A third map, developed using the same methods used to produce the first two, would not be a solution, because the process is the problem. Amicus presents an entirely different alternative, and standards by which the corrupt practice of gerrymandering can be ended after more than 200 years, ending not just partisan influence that is undue or excessive, but removing it altogether.

What has heretofore been missing from these lines of argument is the recognition that partisan gerrymandering is not an attribute of maps so much as of the process of producing and adopting them. When maps are drawn by partisan human beings, no matter how conscientious they might be to avoid partisan bias, there will inevitably be undue influence exerted upon those doing the drawing and adopting, and also by those doing the drawing and adopting on those with a stake in the outcomes. There is a problem even if no one yields to such undue influence and it is only a matter of appearance and not of substance. Corruption works both ways.

The new situation

For more than 200 years partisan gerrymandering has been taking place in the United States. It is named for Elbridge Gerry, one of the Founders. This legacy is due in no small part to the fact that there was no alternative method available of drawing maps than to have it be done by human beings, and the process was so laborious that it was impractical to produce large numbers of maps and have the final map be selected at random rather than by legislative debate and vote on a particular map.

That situation has changed. The technology now exists to have a computer program draw maps randomly that soon satisfy almost any combination of mathematical constraints one might want to impose on them, without any manual intervention. Even though the constraints remain the same, each time the program is run, a quite different map is produced. Some such programs are commercial products, readily available at a modest cost. But perhaps the best is called Target, written by staff programmers of the Texas Legislative Council. It works well, feeding its results to the RedAppl program used now to manually draw maps, which also produces the legal descriptions of the districts.

It is no longer necessary for courts to be asked to examine maps as possible instances of severe partisan gerrymandering. The technical means now exists to end forever the corrupt process that produces gerrymandered maps, by letting machines produce them, mechanically, without influence by partisan factors. Courts or legislatures need only specify the constraints and administrative procedures, generating many and adopting one at random, without debate over adoption of the final version.

The court is invited to travel to Austin to the staff offices of the Texas Legislative Council at 1501 N. Congress Avenue, Austin, Texas 78711 tel. (512)463-1143 for a demonstration of the Target program used to generate maps according to the constraints proposed in this brief. It would be possible in principle for the Texas Legislative Council to arrange for a demonstration of the program in the courthouse in Marshall, but that would involve considerable time and expense. A video clip of a demonstration is online linked from the website of amicus at and amicus is willing to play it for the court if it is interested, but there is no good substitute for a direct experience with the program, and the importance of this case suggests it may be worthwhile for the court to take the extraordinary step of visiting Austin for a demonstration. If it does, amicus stands ready to assist in exploring the product and its possibilities.

Proposed standards

(1) Constraints on the maps. The smallest unit of area shall be the voting precinct, as presently established by law, which shall be of equal population within a county and not differ in population from county to county by more than necessary to accommodate counties of low population.

    (a) The population of each district shall not differ from that of any of the other districts by more than a factor of 0.0001 or the margin of error of the census count, whichever is less.

    (b) Only counties with a population of more than a factor of between 0.1 and 1/3, initially 1/3 unless or until amended by the State Legislature, of the average population of a congressional district, may be split between districts, unless a larger number of counties must be split to meet the specification (a) above, and a smaller number of counties shall be split if specification (a) can be met.

    (c) Districts must be contiguous, so that there is always at least one continuous line of points connecting any two points within the district, and no connection consists only of a line.

    (d) Districts must be simply connected, so that any continuous loop of points within the district may be shrunk to a point within the district without crossing boundary lines.

    (e) Districts shall be maximally compact, resulting from a running time of at least 6 and not to exceed 24 hours, adjusted for improvements in processor speed, with compactness defined by minimizing the value of p²/4pA, where p = perimeter and A = area of the district, with all other values remaining constant or improving.

(2) Procedures. District maps shall be generated and finally adopted mechanically with minimal human intervention using a computer program.

    (a) The software to be used initially shall be the Target software already developed, but may be modified or replaced at the discretion of the State Legislature thereafter. But source code for the production version of any computer redistricting software and the database shall be made accessible for downloading from the web site of the State for public examination and comment, and to be shared with other states and communities, at no cost.

    (b) The State shall establish and maintain adequate safeguards to insure that no unauthorized alterations are made in the software or interventions in the running of it that might bias the output. As soon as feasible, a version of the present database containing only information needed to satisfy the public constraints established herein or by act of the State Legislature shall be prepared, and made the only database accessible to the redistricting program during the generation of maps for official selection.

    (c) A commission or jury, hereinafter called the "Commission", consisting of at least twelve and not more than 23 individuals, initially the Texas Legislative Council unless or until the State Legislature shall provide otherwise, shall supervise the redistricting process.

    (d) Initially, and thereafter during one month every two years prior to each Congressional election, and after the most recent decenniel census results are available, the Commission shall cause to be generated at least twice as many maps as there are members of the Commission.

    (e) Each Commission member shall have the right to reject or strike one map from among the maps generated during the current redistricting session.

    (f) One map shall be selected at random from among the generated maps that remain after strikes, and that map shall become the district map for the next election without amendment or debate.

    (g) The biannual schedule of redistricting may revert to a decenniel schedule after 2010, if the State Legislature so enacts.

Satisfaction of other or previous constraints

The question must be addressed of what to do about compliance with such constraints as provisions of the Voting Rights Act that proscribe dilution of minority-majority districts. While this can be made an additional constraint on the maps to be generated by the redistricting software, and should be done initially if possible, there are several difficulties with that requirement that must be addressed by Congress and the courts.

(1) Demographic trends may make it difficult or impossible to attain. Integration is working. Ethnic groups are becoming increasingly dispersed and intermingled, such that if present trends continue, it may become impossible to find any locality were a minority is a majority, or even concentrated to a high degree, at the level of a congressional district.

(2) The requirement presumes manually-drawn maps, which have historically been susceptible to ethnic gerrymandering. Replacement of a manual process by a mechanical process which has no information about ethnicity effectively eliminates the factor of ethnic discrimination. If minority representation remains a valid political goal, and discrimination is no longer possible, then it will be time to initiate public debate on the issue.

(3) For the above reasons, it shall not be deemed a violation of the Voting Rights Act if the map adopted by the above process happens to dilute minority-majority districts.

Further argument

Now all of this would seem to suggest that the court "legislate from the bench", something neither the court nor amicus would favor under any but extraordinary circumstances, but we have to ask whether the State Legislature is going to do its duty to properly legislate in this area and not continue to abuse its legislative discretion, and if it is not, and in the absence of any legislation from Congress, whether the court has any choice but to intervene with a solution sua sponte as complex as the situation requires to satisfy the letter and spirit of the Constitution.

Amicus drafted two alternative bills for the Texas Legislature, but after canvassing nearly the entire membership, could not find a single member willing to sponsor legislation that would accomplish what is being proposed in this brief. He received a great deal of favorable comment to the effect that his was the most rational, sensible, and statesmanlike alternative, but members were unwilling to defy their party leadership, some expressing real fear. It would seem that the Republican majority wants to amplify its power to the maximum extent possible, the Democrat Party wants an issue it thinks will help it regain the majority after the next election, and neither seems devoted to the Constitution or to doing what is best for the people. In the face of this relentless dereliction, it would seem the court has little choice but to consider a judicial solution like this, nor the amicus any choice but to propose it in this somewhat unconventional brief.

About the amicus

Jon Roland is founder and president of the Constitution Society, founded in 1994, same address, with website at, and editor of the digital online editions of most of the more important works of constitutional history, law, and government, which can be found at that site. (2) He was the nominee in 2002 for the office of Texas Attorney General of the Texas Libertarian Party. By profession he is a computer programmer, but has not contributed to the development of the software discussed in this brief.

Respectfully submitted,

Jon Roland, in propria persona
7793 Burnet Road #37
Austin, Texas 78757
Telephone: (512)374-9585

January 20, 2005


1. Discussed in The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

2. Probably his best known law review article is Public Safety or Bills of Attainder?, West Los Angeles Law Review, Vol. 35, 2003.


I hereby certify that this 19th day of January 2005, I served a copy of the foregoing Application for Leave and Brief of Jon Roland as amicus curiae on all counsel of record by United States mail, first-class, postage prepaid to:

Nina Perales
140 E. Houston Street, Suite 300
San Antonio, TX 78205
tel: (210) 224-5476
Counsel for the GI Forum Plaintiffs

Rolando L. Rios
115 E. Travis, Suite 1645
San Antonio, TX 78205
tel: (210) 222-2102
Counsel for the LULAC Plaintiffs

Javier P. Guajardo, Jr.
1502 West Avenue, Suite A
Austin, TX 78701
tel: (512) 474-9585
Counsel for Plaintiff-Intervenors
Valdez-Cox et al.

Anthony P. Griffin
1115 Moody
Galveston, TX 77550
tel: (409) 763-0386
Counsel for Plaintiff-Intervenors
Congresswoman Sheila Jackson Lee and
Congresswoman Eddie Bernice Johnson

Gary L. Bledsoe
316 W. 12th Street, Suite 307
Austin, TX 78701
tel: (512) 322-9992
Counsel for Plaintiff-Intervenor the

Renea Hicks
800 Norwood Tower
114 W. 7th Street
Austin, TX 78701
tel: (512) 480-8231
Counsel for Plaintiff-Intervenors
Travis County and the City of Austin

Robert M. Long
103 East Fifth Street, Suite 200
Austin, TX 78701
tel: (512) 476-0845
Counsel for Defendant
Charles Soechting, Chairman,
Texas Democratic Party

Morris L. Overstreet
P. O. Box 8100
Houston, Texas 77288
tel: (512) 844-8357
Counsel for Plaintiff-Intervenor the Texas
Coalition of Black Democrats

Richard Gladden
1602 East McKinney
Denton, Texas 76209
tel: (940) 323-9307
Counsel for the Cherokee County Plaintiff

Andy Taylor
405 Main Street, Suite 200
Houston, TX 77002
tel: (713) 222-1817
Counsel for State Defendants

Greg Abbot
Attorney General of Texas
Barry R. McBee
First Assistant Attorney General
Edward D. Burbach
Deputy Attorney General for Litigation
Don R. Willett
Deputy Attorney General for Legal Counsel
David Mattax
Division Chief of Financial Litigation
Jeff Graham
Assistant Attorney General
R. Ted Cruz
Solicitor General
Cassandra Robertson
Assistant Solicitor General
Don Cruse
Assistant Solicitor General

Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, TX 78711
tel: (512) 463-2191

Otis W. Carroll J.
6101 South Broadway, Suite 500
Tyler, Texas 75703

Gerald Hebert, P.C.
5019 Waple Lane
Alexandria, VA 22304

Franklin Jones, Jr.
201 West Houston Street
Marshall, Texas 75670

Paul M. Smith
Sam Hirsch
601 Thirteenth Street, N.W.
Washington, D.C. 20005

Jon Roland, amicus curiae